Wiltshire, Tony v Turnball, Malcolm

FEDERAL COURT OF AUSTRALIA

ELECTIONS - Constitutional Convention - petition disputing election - whether successful candidates took part in conduct of election - whether successful candidates committed or attempted to commit undue influence - whether successful candidates printed, published or distributed any matter or thing likely to mislead or deceive electors in relation to casting of votes - motion to strike out petition - whether petition defective for want of particularity of facts - whether petition may be amended.

Commonwealth Electoral Act 1918 (Cth) s 355
Constitutional Convention (Election) Act 1997 (Cth) ss 35, 52, 126(1), 140, 147, 150, 157(3), 160, 165(1)
Crimes Act 1914 (Cth) s 28

Evans v Crichton-Browne (1981) 147 CLR 169, foll
Hudson v Lee (1993) 177 CLR 627, refd
Nile v Wood (1987) 76 ALR 91, foll
Sykes v Australian Electoral Commission (1993) 115 ALR 645, appl
Webster v Deahm (1993) 116 ALR 223, appl

TONY WILTSHIRE v MALCOLM TURNBULL & ORS
NG 5 of 1998

JUDGE:         DAVIES J
DATE:           16 JANUARY 1998
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5  of   1998

BETWEEN:

TONY WILTSHIRE
PETITIONER

AND:

MALCOLM TURNBULL
FIRST RESPONDENT

DOUG SUTHERLAND
SECOND RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT

CORAM:	DAVIES J
DATE OF ORDER:	16 JANUARY 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The petition be dismissed.

Note:              Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:

TONY WILTSHIRE
PETITIONER

AND:

MALCOLM TURNBULL
FIRST RESPONDENT

DOUG SUTHERLAND
SECOND RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT

CORAM:	DAVIES J
DATE:	16 JANUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is the hearing of a petition brought under the Constitutional Convention (Election) Act 1997 (Cth) ("the Act") which seeks orders that the election to the Constitutional Convention of the first and second respondents, Malcolm Turnbull and Doug Sutherland, be declared void. Also heard were motions brought on behalf of Messrs Turnbull and Sutherland seeking the dismissal of the petition on the ground that the petition did not set out facts on which the elections could be declared void. The petitioner, Tony Wiltshire, was an unsuccessful candidate in the election for the Constitutional Convention. The Australian Electoral Commission and the Commonwealth of Australia were, at their request, joined in the proceedings.

For some time now, there has been debate in Australia as to whether Australia should remain a Constitutional monarchy with the Queen as its Head of State or whether it should become a Republic and, if so, how the Head of State should be chosen and what powers the Head of State should have. In order to further the consideration of this issue, the Australian Government decided in 1997 to hold a Constitutional Convention in early 1998 at which both Government appointed delegates and delegates…