High Court of Australia|1997-06-03|Before: As Brennan ACJ, Dawson J

Abbotto v Australian Electoral Commission [1997] HCA 18; (1997) 144 ALR 352; (1997) 71 ALJR 675 (3 June 1997)

S C Kenny for the respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Parliamentary elections - Court of Disputed Returns - Senate - Petition that election void - Jurisdiction of Court of Disputed Returns - Validity of ticket voting system - Position of ungrouped independent candidates unable to register voting ticket.

DAWSON J. This is an application by the Australian Electoral Commission ("the Commission") as respondent to a petition under Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petition to the Court of Disputed Returns was lodged by John Murray Abbotto ("the petitioner"), who was an unsuccessful candidate for election as a senator for the State of Victoria at the half-Senate election held on 2 March 1996. By s 354(1) of the Act the High Court is appointed to be the Court of Disputed Returns and its jurisdiction is prescribed by Pt XXII of the Act.

The orders sought by the Commission are that no proceedings be had on the petition and/or that the petition be dismissed upon the grounds that the petition does not comply with certain requirements of s 355 of the Act and that no ground alleged in the petition would, if established, entitle the petitioner to the relief sought in it. In the alternative, an order permanently staying proceedings on the petition is sought pursuant to O 63 r 2 of the High Court Rules.

The substantive relief which is sought in the petition is as follows:

"1. As per section 360(1)(vii) of the 'Act' declare the 1996 Election for the Federal Senate absolutely void.

2. As per section 360(1)(v) of the 'Act' declare any person or persons who was returned as elected was not duly elected.

3. Under the powers vested to the Court of disputed returns under s 360(1) the Court order a Re-Election for the Federal Senate for Australia as a whole and order that the Electoral Officer make the necessary amendments to the 'ballot paper' to give the 'Independents' equal status to all other Candidates in the same Federal Elections for the Senate."

The relief sought in the second and third paragraphs could only be granted consequent upon granting the relief sought in the first paragraph, namely that the 1996 half-Senate election for the entire Federal Senate be declared void. However, that relief is of a kind which the Court of Disputed Returns has no jurisdiction to order. As Brennan ACJ said in Muldowney v Australian Electoral Commission[1]:

"The framework of the Act as well as the language of s 355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of a person 'who was qualified to vote thereat' is limited to those elections in which the petitioner was an elector entitled to vote. If a challenge on justiciable grounds can be mounted to the validity of a general election - a question that I need not consider - such a challenge cannot be entertained by the Court of Disputed Returns[2]. It may be that the High Court has such a jurisdiction but that has not been decided: see the dicta of Gibbs CJ in McKenzie v The Commonwealth[3]."

In Pavlekovich-Smith v Australian Electoral Commission[4] and Sykes v Australian Electoral Commission[5] I expressed my agreement with this view and followed the decision of Brennan ACJ, as did Toohey J in Robertson v Australian Electoral Commission[6]. Toohey J added:

"The matter is put beyond question when regard is had to s 221 of the Act which makes it clear that an elector shall only be admitted to vote for the election of Senators for the State or Territory for which he or she is enrolled and for the election of a member of the House of Representatives for the Division for which he or she is enrolled. In the light of that clear statement, the requirement in s 355(c) that a petition disputing an election shall be signed by a candidate at the election 'or by a person who was qualified to vote thereat' leaves no doubt as to the limited scope of the jurisdiction of the Court of Disputed Returns in this regard."

It may be noted that in the passage which I have reproduced from Muldowney v Australian Electoral Commission, Brennan ACJ spoke of the jurisdiction to declare an election void on the petition of a person "who was qualified to vote thereat" as limited to those elections in which the petitioner was an elector entitled to vote. But as is clear from the Act and from the decision in Pavlekovich-Smith v Australian Electoral Commission, the jurisdiction of the Court of Disputed Returns is equally limited in the case of a petition of a person who was "a candidate at the election" because, as was noted by Toohey J in Robertson v Australian Electoral Commission[7], s 355(c) speaks of a petition signed by a candidate at the election in dispute or by a person who was qualified to vote thereat. It is the one election which is referred to. Thus a Court of Disputed Returns has no jurisdiction to declare a general election void on a petition lodged under Pt XXII of the Act.

It follows that the relief sought in the petition is of a kind which a Court of Disputed Returns is unable to order unless it is possible to read down the petition to confine the relief sought in it to the half-Senate election for the State of Victoria. However, apart from the general terms in which the relief sought is cast, the petition is directed to the general manner in which Senate voting is conducted throughout the country and cannot be read as confined to the Senate election for the State of Victoria. Relief so confined is not what the petitioner seeks[8]. So much was confirmed by the petitioner in argument, thus making it impossible to read down the relief sought.

Whilst what I have said is sufficient to dispose of the matter, it is, perhaps, desirable to consider the substance of the petitioner's complaint. I am able to do so without pausing to consider the question, raised by the Commission, whether the petition sets out the facts relied upon to invalidate the election and does so with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief[9]. Of course, if the petition does not do that, then, subject to s 358(2) and (3), no proceeding may be had on it[10]. However, it is clear enough that the substance of the petitioner's complaint is that the relevant sections of the Act which provide for group and individual ticket voting are invalid, and I can turn directly to that matter. In order to understand it, it is necessary to describe in brief compass the ticket voting system set up by the Act in respect of Senate elections.

Section 209(1) of the Act provides that ballot-papers to be used in a Senate election shall be in Form E in Schedule 1 to the Act. That form shows a ballot-paper across which is drawn a horizontal black line. Pursuant to s 168 of the Act, two or more candidates may request that their names be grouped on ballot-papers, but candidates who wish the word "Independent" to be printed adjacent to their name on ballot-papers pursuant to s 169A are not able to make such a request. Under s 210 of the Act, in printing ballot-papers the names of grouped candidates are to be printed before the names of ungrouped candidates. The names of grouped candidates appear in a single column dedicated to that group below the line on the ballot-paper, and except as otherwise provided by the regulations a square is to be printed opposite the name of each candidate[11]. Where grouped candidates lodge with the Australian Electoral Officer a statement in accordance with s 211 indicating their order of preferences or orders of preferences in relation to all the candidates, they are taken to have a group voting ticket or group voting tickets, and a square appears above the line on the ballot-paper in the same column in which the names of the grouped candidates are listed individually below the line[12]. The names of ungrouped candidates appear, subject to s 210(3)(b) and (c), in a single column after the names of grouped candidates. Since those candidates are unable to register voting tickets, no voting ticket square appears above the line in that column[13].

The voter may mark his vote either by placing consecutive numbers in every square appearing beside the names of candidates below the line, or simply by placing the figure "1" or a tick or a cross in one only of the voting ticket squares appearing above the line[14]. Thus, the Act allows a simplified method of voting for grouped candidates by marking a single group voting ticket square appearing above the line on the ballot-paper. Where a group voting ticket square is marked in this way, the ballot-paper is deemed to be marked in accordance with the relevant voting ticket or tickets[15]. However, this simplified voting procedure is not available to ungrouped independent candidates who are unable to register a voting ticket.

In addition to the scheme which may be discerned from the provisions to which I have referred, it is necessary to refer to s 211A of the Act. That section allows an ungrouped individual candidate who is a sitting member of the Senate to lodge an individual voting ticket or individual voting tickets. Where such a ticket or such tickets is or are lodged, the candidate is able to avail himself or herself of the advantages enjoyed by grouped candidates because a voter who wishes to vote for such a candidate is able to use the simplified method of voting provided for in the Act, namely, by casting a vote for the individual ticket or tickets simply by placing the figure "1" or a tick or cross in a square above the line on the ballot-paper. That is not an advantage enjoyed by ungrouped candidates who do not fall within the language of s 211A.

The significance of the scheme which I have outlined is clear enough, although it may, perhaps, be more readily appreciated by considering the two options presented to voters marking the ballot-paper used at the 1996 half-Senate election for the State of Victoria. The voter's first option was simply to mark one square above the line; in the alternative, the voter could mark, with consecutive numbers, all 44 squares below the line. Both means of voting were available as alternatives to vote for individuals and groups with registered voting tickets, but only the latter method was available to vote for ungrouped independent candidates who were unable to register a voting ticket. The petitioner contends that this placed such candidates, including himself, in a position of disadvantage which may have affected the result of the election. In support of that contention, it is claimed in the petition that at the 1996 half-Senate election a very low percentage of electors voted by numbering every box below the line on the ballot-paper. The petition also relies on documents styled as statutory declarations to the effect that certain persons who intended to vote for the petitioner or for independent candidates were confused or misled by the ballot-paper and failed to cast a formal vote as a result.

But even if these facts were ultimately established, the question is whether any invalidity would thereby be disclosed. In McKenzie v The Commonwealth[16], a challenge was unsuccessfully mounted to the group voting system for which the Act provides. The Act at that time was cast in slightly different terms and did not include s 211A, but those differences are not material. Gibbs CJ rejected a submission on that occasion that the system contravened s 16 of the Constitution. He also rejected a submission that it offended general principles of justice by discriminating against candidates who are not members of established parties or groups. Gibbs CJ was prepared to assume that s 7 of the Constitution requires the Senate to be elected by democratic methods but held that any disadvantage caused by the group voting system to ungrouped and independent candidates did not "so [offend] democratic principles as to render the sections beyond the power of the Parliament to enact"[17].

Even though the substance of the petitioner's argument in this case is that the voting ticket system as it currently operates is invalid, the only real ground raised is that the voting ticket system contravenes s 10 of the Constitution. That section provides:

"Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State."

However, by enacting the Act, including those provisions impugned in the petition, the Parliament has otherwise provided for the election of senators from each State, as s 10 expressly allows it to do. There is therefore no substance in this ground.

The petition points more generally to the provisions of certain anti-discrimination legislation, without specifying that legislation accurately or with any particularity, and without indicating the way in which it is relied upon. The petition refers to the Equal Opportunity Act 1984 (Vic), a statute which was repealed and replaced by the Equal Opportunity Act 1995 (Vic). Be that as it may, nothing in either statute has any bearing on the validity or operation of the voting ticket system. One may doubt whether a State statute which purported to interfere with the system of voting in federal elections would be within the power of a State legislature. But even if it were, the Commonwealth Parliament could enact laws inconsistent with any such laws, in which case its laws would prevail over the inconsistent State laws under s 109 of the Constitution. The petition also refers to the "1975 Discrimination Act", presumably a reference to the Racial Discrimination Act 1975 (Cth). However, there is nothing in the Racial Discrimination Act which has any bearing on the validity of the voting ticket system laid down by the provisions of the Act.

The petition also points to s 327(1) and (2)(d) of the Act. The manner in which those sub-sections are relied upon is not clear, and as those sub-sections are in the same Act as the provisions impugned in the petition they could not operate to invalidate those provisions. Nor could it be said that those who printed Senate ballot-papers or conducted Senate elections in accordance with the Act had hindered or interfered with the free exercise or performance by any other person of any political right or duty that is relevant to an election under the Act within the meaning of s 327(1). Section 327(2) prohibits discrimination against a person on the ground of the making by that person of a donation to a political party, candidate for election or group, but says nothing relevant to the matters of which the petitioner complains.

The petition also refers to s 329(1) which provides:

"A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote."

In Re Australian Electoral Officer (Victoria); Ex parte Abbotto[18], I held that advertisements published by the Australian Electoral Commission which directed voters that there were two ways of completing a Senate ballot-paper were not misleading or deceptive within the meaning of s 329(1). That conclusion equally applies to the ballot-papers themselves. But more importantly, the printing of ballot-papers in accordance with the Act could not be regarded as the printing of misleading or deceptive material as prohibited by the Act.

In argument, the petitioner placed particular reliance on ss 364 and 362(3) of the Act. Section 364 provides that the Court of Disputed Returns shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. When that section speaks of the "substantial merits" of the case, it means, of course, the substantial legal merits of each case rather than what might be perceived to be the fairness of the law itself. For the reasons I have given, there is no legal merit in the petitioner's case.

Section 362 refers to the declaring of elections void on the grounds of bribery or corruption, illegal practice and undue influence. Those terms are defined by s 352(1). "Bribery" or "corruption" means a contravention of s 326(2), which is not alleged in the petition and may be put to one side. "Illegal practice" means a contravention of the Act or the regulations, but, for the reasons I have given, no such contravention could be established by anything raised in the petition. "Undue influence" means, inter alia, a contravention of s 327 of the Act, but, as I have said, it is plain that no contravention of that section is pointed to by anything in the petition. Section 362 is therefore not engaged in the present case.

For these reasons, I am satisfied that the petition does not disclose anything which would entitle the petitioner to the relief which he seeks. The appropriate course is, I think, to dismiss the petition pursuant to the power conferred by s 360(1)(viii) of the Act.

[1] [1993] HCA 32; (1993) 178 CLR 34 at 42.

[2] Re Surfers Paradise Election Petition [1975] Qd R 114 at 117 suggests that a similar conclusion was reached under the Elections Act 1915 (Q) by Dunn J sitting as an Election Tribunal.

[3] [1984] HCA 75; (1984) 59 ALJR 190 at 191; [1984] HCA 75; 57 ALR 747 at 749-750.

[4] [1993] HCA 37; (1993) 67 ALJR 711 at 712; [1993] HCA 37; 115 ALR 641 at 642-643.

[5] [1993] HCA 36; (1993) 67 ALJR 714 at 715; [1993] HCA 36; 115 ALR 645 at 646-647.

[6] [1993] HCA 50; (1993) 67 ALJR 818 at 818; [1993] HCA 50; 116 ALR 407 at 408.

[7] [1993] HCA 50; (1993) 67 ALJR 818 at 818; [1993] HCA 50; 116 ALR 407 at 408.

[8] See Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37; (1993) 67 ALJR 711 at 712; [1993] HCA 37; 115 ALR 641 at 643; Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818 at 818; [1993] HCA 50; 116 ALR 407 at 408.

[10] See s 358(1), and see generally Muldowney v Australian Electoral Commission [1993] HCA 32; (1993) 178 CLR 34; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37; (1993) 67 ALJR 711; 115 ALR 641; Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 67 ALJR 714; 115 ALR 645; Webster v Deahm [1993] HCA 38; (1993) 67 ALJR 781; 116 ALR 223; Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818; 116 ALR 407.

[16] [1984] HCA 75; (1985) 59 ALJR 190; 57 ALR 747.

[17] [1984] HCA 75; (1985) 59 ALJR 190 at 191; [1984] HCA 75; 57 ALR 747 at 749.

Abbotto v Australian Electoral Commission [1997] HCA 18;

At a glance

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Judgment (47 paragraphs)

Abbotto v Australian Electoral Commission [1997] HCA 18; (1997) 144 ALR 352; (1997) 71 ALJR 675 (3 June 1997)

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Cases Cited (10)