High Court of Australia|1999-07-22|Before: Hayne J

Ditchburn v Australian Electoral Officer (Qld) [1999] HCA 40; (1999) 165 ALR 147 (22 July 1999)

Ditchburn v Australian Electoral Officer [1999] HCA 40

2. Petitioner to pay costs of respondent and of Australian Electoral Commission.

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

Elections - Senate - Court of Disputed Returns - Petition disputing validity of half Senate election - Validity of ticket voting system - Whether Senators "directly chosen by the people".

HAYNE J. On 30 November 1998, Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petition was said to "[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998". The relief sought by the petition is described as:

"1. A declaration as to the validity of Sections 211, 211A, 272 and Subsections 239(2), 239(3) and 273(5) paragraphs (c), (d) and (f) of the Commonwealth Electoral Act 1918. > > 2. An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to Sections 211, 211A, 272 and Subsections 239(2), 239(3) and 273(5) paragraphs (c), (d) and (f) of the Commonwealth Electoral Act 1918."

The petition named as respondent the "Australian Electoral Officer for Queensland". The Australian Electoral Commission ("the Commission") sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined. It has also sought an order that the petition be dismissed on the ground that it does not set out facts which would justify any relief under the Act, or in the alternative, that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.

"The Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed, and to be represented and heard thereon, and in such case shall be deemed to be a party respondent to the petition."

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted. Because I consider that the petition cannot succeed and should be dismissed, I need form no view on whether the respondent named in the petition was "improperly joined" within the meaning of O 16 r 4 of the Rules.

The central complaint of the petitioner relates to what has come to be known as the "above the line" and "below the line" voting, or "group voting", system in Senate elections. That is dealt with in ss 211, 211A, 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate elections. The petitioner contends that:

"Where voters mark their Senate ballot papers 'above the line', ie in accordance with subsections 239(2) or (3), they select a political party or group which has lodged a group voting ticket pursuant to Section 211 or Section 211A. > > Section 272 creates a statutory fiction by 'deeming' those ballot papers to have been marked according to an order of preference specified by that political party or group of candidates. > > No Senator is directly chosen by people who vote 'above the line' (refer to Senate ballot paper) - voters merely select the political party or group of candidates whose previously chosen order of preference is then attributed to the voter by the statutory fiction created under Section 272. > > Consequently the provisions of the Commonwealth Electoral Act 1918 referred to above prescribe a method of electing Senators which resembles an electoral college, and where Senators are indirectly chosen by the people of the State. > > The first paragraph of Section 7 of the Constitution of Australia states:- > > 'The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.' > > Hence those provisions conflict with Section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under Sections 8 and 51(xxxvi) of the Constitution."

As I said in McClure v Australian Electoral Commission[1]:

"Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group, the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement, being an order that gives preferences to the candidates lodging the statement before any other candidate. Section 211A of the Act makes like provision for candidates who are Senators or, if there has been a dissolution of the Senate, were Senators immediately before the dissolution and who are not members of a group. There is no like provision for other candidates not part of a group. > > The constitutional validity of provisions like s 211 has twice been considered - in McKenzie v Commonwealth[2] and in Abbotto v Australian Electoral Commission[3]. At the time of McKenzie, the Act was cast in slightly different terms and did not contain s 211A. Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution [4] and held that the provisions then in force did not 'so [offend] democratic principles as to render the sections beyond the power of the Parliament to enact'[5]. In Abbotto, Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution [6]."

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[7]. Particular reference was made to those parts of the reasons of Gibbs J[8], Stephen J[9], Mason J[10] and Murphy J[11] in which their Honours consider what is meant in s 24 of the Constitution when it says that "[t]he House of Representatives shall be composed of members directly chosen by the people of the Commonwealth".

Like s 24, s 7 of the Constitution also uses the expression "directly chosen by the people" and as Stephen J said in McKinlay[12]:

"Each [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose; in each the method of choice is required to be that of direct choice, there is to be no interposition of an electoral college between the chooser and the chosen."

The petitioner contended that neither McKenzie v The Commonwealth[13] nor Abbotto v Australian Electoral Commission[14] can be read as dealing directly with the arguments he now seeks to advance. I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitioner's contentions. However that may be, as I said in McClure, I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution [15]. In particular, I do not accept the contention that those provisions "prescribe a method of electing Senators which resembles an electoral college, and where Senators are indirectly chosen by the people of the State".

The petition cannot succeed. It should be dismissed.

[1] [1999] HCA 31; (1999) 163 ALR 734 at 741-742.

[2] [1984] HCA 75; (1984) 59 ALJR 190; 57 ALR 747.

[3] [1997] HCA 18; (1997) 71 ALJR 675; 144 ALR 352.

[4] Section 7 provides (so far as relevant):

"The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate."

Section 16 provides:

"The qualifications of a senator shall be the same as those of a member of the House of Representatives."[5]

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

[6] Section 10 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."[7]

[1975] HCA 53; (1975) 135 CLR 1.

[8] [1975] HCA 53; (1975) 135 CLR 1 at 44.

[9] [1975] HCA 53; (1975) 135 CLR 1 at 56.

[10] [1975] HCA 53; (1975) 135 CLR 1 at 61.

[11] [1975] HCA 53; (1975) 135 CLR 1 at 68.

[12] [1975] HCA 53; (1975) 135 CLR 1 at 56.

[13] [1984] HCA 75; (1984) 59 ALJR 190; 57 ALR 747.

[14] [1997] HCA 18; (1997) 71 ALJR 675; 144 ALR 352.

[15] See also McKenzie v The Commonwealth [1984] HCA 75; (1984) 59 ALJR 190; 57 ALR 747; Abbotto v Australian Electoral Commission [1997] HCA 18; (1997) 71 ALJR 675; 144 ALR 352.

Ditchburn v Australian Electoral Officer

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Judgment (41 paragraphs)

Ditchburn v Australian Electoral Officer (Qld) [1999] HCA 40; (1999) 165 ALR 147 (22 July 1999)

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Legislation Cited (2)

Cases Cited (5)