Wiener v Tasmanian Electoral Commission
[2010] TASSC 9
•10 March 2010
[2010] TASSC 9
COURT: SUPREME COURT OF TASMANIA
CITATION: Wiener v Tasmanian Electoral Commission [2010] TASSC 9
PARTIES: WIENER, Sven
v
TASMANIAN ELECTORAL COMMISSION
FILE NO/S: 89/2010
DELIVERED ON: 10 March 2010
DELIVERED AT: Hobart
HEARING DATE: 1 March 2010
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Evidence – Affidavits and statutory declarations – Statutory declarations – Requirement that declaration be made "before" a justice, Commissioner for Declarations or other qualified person.
Oaths Act 2001 (Tas), s14.
Aust Dig Evidence [254]
Constitutional Law – The non-judicial organs of government – The legislature – Elections and related matters – Other matters – Registration of political parties – Grounds for rejecting application for registration – Whether there were reasonable grounds.
Electoral Act 2004 (Tas), ss44, 47 and 48.
Aust Dig Constitutional Law [212]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: G L Sealy SC
Solicitors:
Appellant: In person
Respondent: Crown Solicitor
Judgment Number: [2010] TASSC 9
Number of paragraphs: 47
Serial No 9/2010
File No 89/2010
SVEN WIENER v TASMANIAN ELECTORAL COMMISSION
REASONS FOR JUDGMENT CRAWFORD CJ
10 March 2010
On about 6 January 2010, the Tasmanian Electoral Commission received a form of application for registration of a political party in the name of the Ethics & Sustainability Party. The application purported to have been made under the Electoral Act 2004, s44.
Under s48(1), the Commission had to consider the application and either accept or reject it in accordance with s47. By s47(1)(a) and (b), the Commission had a discretion to reject the application if it did not comply with the requirements of s44, or if the Commission believed on reasonable grounds that information set out in the application, or in documents required to accompany the application, was incorrect.
At a meeting held on 11 February 2010, the Commission received background information from its officers concerning the application. Upon a consideration of that information, the Commission decided to reject the application because it believed that information set out in it, or in documents required to accompany it, was incorrect.
The party's secretary had the right to appeal the decision to the Court under s49(1). On 19 February 2010, the appellant filed a notice of appeal in his name, signing the notice as "Acting Party Secretary".
On 19 February 2010, writs for the holding of a House of Assembly election were issued by the Governor. The election is to be held on 20 March 2010. By s49(4), the appeal was to be heard and determined by a judge of the Court as soon as practicable. There was said to be some urgency about the matter because the party wished to nominate candidates for the election.
I heard the appeal on 1 March. At the conclusion of the hearing I announced that in due course I would dismiss the appeal, but before doing so I would prepare these reasons. I said that I had no doubt that the appellant had no standing to appeal the decision of the Commission because he is not the party secretary. In these reasons I explain why I hold that view. I also deal with other aspects of the appeal that were raised at the hearing.
The application for registration
The application for registration of the party was in writing in the approved form as required by s44(1). The subsection also required that the application contain a number of matters that included:
(i) it had to be signed by the party secretary (s44(1)(a));
(ii)it had to set out the name and address of a person who was to be the registered officer of the party and be signed by that person (s44(1)(d));
(iii)it had to set out the name and address of a person who was to be the deputy registered officer of the party and be signed by that person (s44(1)(e));
(iv)it had to set out the names and addresses of at least 100 members of the party who were to be the registered members (s44(1)(f));
(v)it had to be accompanied by the statutory declarations referred to in subs(3), being statutory declarations in an approved form made by each of the persons so listed as members of the party, the statutory declaration to state that he or she was a member of the party and supported the application for registration of it (s44(1)(g) and (3)); and
(vi)it had to be lodged with the Commission (s44(1)(h)).
The application stated that the registered officer was Violet Kathleen Petrovsky, the deputy registered officer was the appellant, Sven Wiener, and the party secretary was James Clarence Welsh. Each of those persons appeared to have signed the application and their addresses were stated. The application set out the names and addresses of about 254 people who were members of the party and were to be its registered members. Accompanying the application were what purported to be 195 statutory declarations by some of those persons. It is immediately apparent that there was non-compliance with s44(3), which required that all of the persons listed as members of the party had to make the statutory declaration in the approved form.
The declarations asserted that the deponents were members of the party and that they supported the application for its registration. Attached to these reasons are copies of two of those declarations. For privacy purposes I have omitted from each the name and some of the address of the person who signed the document as a member, and the signatures of both that person and the person represented as having taken the declaration as a Commissioner for Declarations.
Inserted by hand on each of the 195 forms was the name, occupation and address of the deponent, "Launceston" as the place of making the declaration, and the date of making as one of 20, 21, 22, 23 or 26 December 2009. However, only one had 20 December as its date and I think it likely that was a mistake and that the correct date was probably 21 December. Each purported to have been signed by its deponent and by persons as the Commissioner for Declarations. On 130 forms dated 21, 22, 23 and 26 December, the signature purporting to be that of the Commissioner for Declarations was stated to be that of "ian allen teacher" by way of a printed stamp. On 63 forms all dated 23 December, the signature purporting to be that of the Commissioner for Declarations was stated to be that of "mark smith teacher" by way of a printed stamp. Each of the remaining two forms had the signature of different persons as the Commissioner for Declarations.
The information provided to the Commission at its meeting on 11 February 2010
One of the pieces of information provided to the meeting by the Commission's officers concerned an earlier application for the registration of the Ethics & Sustainability Party that was dated 24 December 2009 and received by the Commission on 4 January 2010. A significant difference between it and the application that was later considered by the Commission concerned the identities of the officers of the party. It stated that the registered officer was James Clarence Welsh, the deputy registered officer was Violet Kathleen Petrovsky and the party secretary was Peter Greene of 10 Peacock Place, Legana. On the same day as that application was received, but at a later hour, an officer of the Commission received a telephone call from a person who represented himself to be Peter Greene, the party secretary. The officer recognised the man's voice as that of the appellant. He has since admitted that he was using that false name and that in reality, there was no such person.
At the hearing of the appeal, I asked the appellant why he did that. He said that he used a pseudonym because he did not want the officers of the Commission to realise he was involved, adding that he had some earlier trouble with one of the officers when standing for a local government election.
When the falsity of the name was discovered, the appellant was advised that the party secretary had to be a real person. That same day, 4 January 2010, he advised that he had posted to the Commission what he described as an updated signature page. It was that page that came to be treated by the Commission as the first page of the application for registration. At the hearing of the appeal the appellant said that he relied on that page as part of the application for registration and not the earlier page, which he said was an abortion. What he meant by that description was not clear.
When the second signature page was received, it was immediately apparent that there had been a complete change in the roles played in the party, for James Clarence Welsh's role had changed from registered officer to party secretary, Violet Kathleen Petrovsky's role had changed from deputy registered officer to registered officer, and the role of the appellant had been changed from that of party secretary (under a false name) to deputy registered officer. The suspicions of the Commission's officers were understandably raised. It was unlikely that the members of the party had met or made those appointments.
A number of other troubling matters were reported to the meeting of the Commission on 11 February and I will refer to them.
There was no process for persons to become members of the party prior to the signing of the forms of statutory declaration, so that those who signed could not have been members at the time they signed the declaration, and certainly not at any point in time before that.
I interpose that at the hearing of the appeal, the appellant agreed that those persons were not members prior to the time they signed, but maintained that they became members when they signed. He said that he and another person were in the Launceston Mall with clipboards containing blank statutory declaration forms and a sign that advertised something of what they were about, which included opposition to a proposed pulp mill in the Tamar Valley. He said that members of the public came up and signed the forms of statutory declaration after having inserted their name, occupation and address.
It was reported to the Commission that the members of the party had never met as a group, and had not appointed any executive officers, and certainly not the registered officer, the deputy registered officer or the party secretary. It followed that there had been no formal appointment of a party secretary who could sign the form of application for registration of the party. It was also reported that in a telephone conversation of 1 February, the person named as the party secretary on the application for registration, James Clarence Welsh, informed an officer of the Commission that he had resigned.
At the hearing of the appeal, the appellant conceded that the members of the party had never met, not even by the time of the hearing two months after the application for registration was made, and that they had not appointed any of the executive officers of the party. He agreed that the party had no constitution, nor rules governing the appointment of officers. He said there had not been time to formalise the affairs of the party by having a meeting, adopting a constitution or rules and appointing executive officers, the need for haste being the forthcoming election and his desire that the party nominate candidates for it. He conceded that his role as party secretary, which he described as interim party secretary, was a self-appointed one. He also said that he had asked James Clarence Welsh to be the party secretary and Dr Petrovsky to be the deputy registered officer. I interpret what he said as amounting to concessions that the party had not appointed them to those offices.
He said that he was holding the position of interim party secretary until a meeting of members could be held. He added that although a meeting had not been held, there were a number of "fair dinkum" persons who wanted to be members.
A further matter reported to the Commission was that public statements had been made on the party's website and in the media by a person calling himself "Peter Wilson, interim Vice-President Communications", which was another alias used by the appellant. As there had been no meeting of the party, it could not have appointed him to that position either.
In the application for registration, the address given for the appellant as deputy registered officer was 4 Gosling Grove, Legana. It is the address he used in affidavits filed for the purposes of the appeal. However, it was reported to the meeting of the Commission that Tasmania Police had advised that the address was a vacant block.
It was reported to the Commission concerning the 193 forms of statutory declaration that purported to have been signed by a Commissioner for Declarations named either "ian allen teacher" or "mark smith teacher" that the appellant had advised officers of the Commission that he was unable to provide any contact details for those two persons and did not know of any other person who could do so. It was further reported to the Commission that for that reason it was impossible to confirm that the statutory declarations were validly made before Commissioners for Declarations.
The appellant had advised the Commission by email that Mark Smith and Ian Allen were mainland tourists, reportedly teachers holidaying in Tasmania during their Christmas/New Year break, with whom the appellant met up while in the course of collecting signatures in Launceston's Mall for a petition against the pulp mill.
It was also reported to the Commission that two persons, whose forms of statutory declaration were among the 195 presented to the Commission, had since formally objected to the registration of the party. They claimed that their purported statutory declarations were not signed in their presence by a Commissioner for Declarations.
In that connection, at the hearing of the appeal the appellant conceded that Ian Allen and Mark Smith did not receive the declarations at the time they were signed by the deponents and they did not sign them at the same time as, or in the presence of, the deponents. They had no interaction with the deponents at all. He submitted that it is acceptable for statutory declarations to be made without any interaction between the deponent and the Commissioner for Declarations.
He said that the two men were present in the general area and observed the prospective members of the party completing and signing the forms of statutory declaration. Subsequently, one or other of them appended his signature as Commissioner for Declarations. He confirmed that he did not know, and had no way of finding out, whether either Ian Allen or Mark Smith were in fact qualified as Commissioners for Declarations. They had told him they were teachers and he accepted that. However, as I will point out in more detail shortly, merely being a teacher does not qualify a person to be a Commissioner for Declarations. The relevant qualification that is required is that of a teacher employed on a full-time basis at a school or tertiary education institution. See Oaths Act 2001 (Tas), s12(2)(b) and Statutory Declarations Regulations 1993 (Cth), Sch Pt2.
It was further reported to the Commission that two formal objections to the registration (each on behalf of two persons), and telephone calls received by officers of the Commission, raised concerns that many of the persons who signed a statutory declaration did not have a full or sufficient understanding of the nature of the document being signed. It was not clear how many people had signed the declarations with full or sufficient understanding that they were signing a statutory declaration which involved the registration of a political party. By way of example, one of the objectors presented the Commission with a statutory declaration in which she said:
"I signed a form which I was led to believe was an anti-pulp mill petition. On this form I wrote my name and address and date. It was not witnessed in my presence. At no time was I made aware that I was supporting the formation of a political party and I had no idea about the beliefs or platform of this party."
Another objector presented a statutory declaration in which he said:
"I signed what I believed was a petition against corrupt government. I recall a space for another signature next to mine which remained empty."
Two other objectors signed a letter to the Commission which said:
"We strongly believe that we were fraudently, and unknowingly recruited as members. I suggest that this is likely the case for many of this party's 'newly recruited' members, as there was absolutely NO indication that their set-up was aimed at establishing a political party (ie no mention of this was made, there was no signage indicating the name of the party (in fact they used posters very similar to those used by TAP), the two men wore no indicative clothing or badges, and we were approached by the men, who questioned whether we'd like to sign a anti pulp mill petition, rather than if we'd like to sign up for a political party)."
I infer that the reference to TAP was to an organisation called Tasmanians Against the Pulp Mill.
The minutes of the meeting of the Commission on 11 February reveal that there was a discussion about the background information that had been provided to it. It decided to reject the application to register the party on the basis that it believed that information set out in the application, or in documents required to accompany the application, was incorrect.
The standing of the appellant to appeal
By virtue of s49(1), only a party secretary is entitled to appeal a decision to reject an application to register the party. I find that the appellant was not the party secretary. It follows that he had no standing to institute the appeal and the appeal should be dismissed for that reason.
It is clear that he was not appointed the secretary under the constitution or rules of the party, because none existed. It is also clear that he was not appointed to be the secretary of the party by the persons he claims are the members. On his own admission, he appointed himself without consulting them.
I accept the possibility that Dr Petrovsky agreed to his appointment as interim party secretary after the retirement of Mr Welsh as secretary. At one point in his submissions, the appellant said he asked her to be the deputy registered officer. But according to the list of members provided to the Commission with the application to register the party, she was not a member of the party. Her agreement would have been worthless if that was so. In any event, the agreement of two persons could not have amounted to an appointment of the appellant as the secretary of the party.
The grounds of the appeal and other matters
Disregarding the question of the standing of the appellant, one way for the appeal to succeed was by establishing that the Commission erred when it rejected the application for registration of the party. I will treat the second ground of the appeal as raising the question. The ground starts with an assertion of a pattern of sloppiness by the Commission and ends with an assertion that the appellant was "concerned that the Commission has quite probably based it's [sic] decision to reject the party registration application on false or erroneous information".
Under s47(1), the Commission had a discretion to reject the application if it believed on reasonable grounds that information set out in the application, or in documents supporting the application, was incorrect. The minutes of the meeting of the Commission in fact reveal that it did believe that some of the information was incorrect. There is no reason to doubt that. The appellant did not suggest that the minute was incorrect and that the Commission did not hold that belief.
That raises the question, did the Commission have reasonable grounds for that belief? That is to be answered upon the basis of the information that was before the Commission and its officers. It is not to be decided upon the basis of fresh material upon which the appellant might wish to rely following the making of the decision.
I have no doubt that the Commission had reasonable grounds for its decision. They are to be found in the following:
(i)The Commission had evidence that persons who were named in the application as officers of the party had not in fact been appointed by the party to those positions;
(ii)The Commission had evidence that the appellant's address as stated in the application was not genuine, but a vacant block of land;
(iii)The Commission had evidence that at least some of the purported statutory declarations, I think it likely a great many of them, were not in fact statutory declarations at all. A statutory declaration is required by the Oaths Act, s14(2), to be in a specified form. The form requires in the jurat that the declaration must be made "before" a justice, commissioner for declarations or other qualified person. It follows that is what is required. See R v Norbury (Inhabitants) (1846) 6 QB 534, n; 115 ER 200, n; Eddowes v Argentine Loan and Agency Co (1890) 59 LJ Ch 392. The Commission had evidence that some of the deponents signed the forms when they were not before the person who signed as a commissioner for declarations. Affidavits and statutory declarations must be made before the person taking them. It is inadequate for a deponent to simply sign the document without any interaction with that person. Bourke v Davis (1889) 44 Ch D 110 at 126;
(iv)The Commission had evidence that some of the people who signed the forms as statutory declarations did so without realising what they were and in particular, that they were statutory declarations. If so, the documents did not amount to statutory declarations by those persons. The Commission also had evidence that some of those persons did not understand that by signing the form they were becoming members of a party and participating in formalities for its registration.
Because of the evidence before the Commission, I am satisfied that it had reasonable grounds for its belief. Whether that evidence was true is of no consequence to the outcome of the appeal. The question that is raised by s47(1) is whether the Commission had reasonable grounds for its belief when it formed it.
I make some additional comments concerning the making of a statutory declaration. The Oaths Act, s13, requires that a Commissioner for Declarations is to add after his or her signature the words "Commissioner for Declarations", together with his or her title, if qualified as a commissioner under s12(2). That subsection qualifies persons to be commissioners for declarations if they are persons before whom a statutory declaration may be made under the Statutory Declarations Regulations 1993 (Cth). By virtue of Sch1, Pt2 of those regulations, being a teacher alone is not a qualification for that function. What is required is that the person is a "teacher employed on a full-time basis at a school or tertiary education institution". It follows that if a statutory declaration is made before a person who qualifies on that basis, he or she should add after his or her signature the words "Commissioner for Declarations" and words to the effect that he or she is a teacher employed on a full-time basis at a school or tertiary education institution. It is inadequate to simply describe oneself as "teacher". Howard v Brown (1827) 1 Moo & P 22; 130 ER 819.
Under the Electoral Act, s45(1), the Commission was required, upon receipt of the application for registration of a party, to publish a notice of the application in the Gazette and three daily newspapers circulating generally in the State. The notice was to include, among other information, the names and addresses of the 100 or more members of the party who the applicant had stated in the application were to be registered members.
The advertisements so published by the Commission listed the names and addresses of about 195 persons whose names and addresses were on the so-called statutory declarations. The first ground of appeal asserts that the Commission erred when complying with the requirement for publication because particulars of three of the party members listed in one or more of the advertisements were shown incorrectly. For example, the surname of one had moved into the address of another member in the previous line.
The requirement of s45 is directory and not mandatory. See the Acts Interpretation Act 1931, s10A. The errors raised by the appellant were insignificant. The process of advertising was not rendered invalid as a result. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
In addition, there is no reason to think that the errors rendered invalid the decision to reject the application for registration. Even if they might have had that effect, they could not have led to the upholding of the appeal and the granting of the application for registration.
Could the appeal have been successful in any event?
Even if a ground of appeal had succeeded, I would have refused to make an order that would have allowed the registration of the party. In addition to what was before the Commission, I now have the appellant's admissions that were made at the hearing of the appeal. As a consequence, it is my firm belief, on what I regard to be reasonable grounds, that information set out in the application for registration, and in documents required to accompany it, was incorrect. The Commission had reasonable grounds for its belief, I now have more. For that reason, I would have dismissed the appeal in any event.
What if the appeal had been successful and registration followed?
I mention that even if the appeal had been successful to the extent that the Commission would have been required to register the party, it would not have enabled the party to nominate candidates for the election on 20 March.
The Electoral Act, s62(1), prohibits any action being taken under Pt4 of the Act during the period commencing with the issue of a writ for an election and ending with the return of that writ. The writs for the forthcoming election were issued on 19 February.
Only the Commission can perform the act of registering a party. See s50(1) which is in Pt4. If the appeal had been successful, the appellant could only have obtained at best an order that would have led to the Commission being required to register the party. But because of the prohibition of s62(1), the Commission would have been obliged to wait until after the return of the writ following the election, before effecting the registration.
Outcome of the appeal
For the reasons I have given, the appeal will be dismissed.
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