FEATHERSTON v TULLY No. SCCIV-02-481 [2002] SASC 243

FEATHERSTON v TULLY No. SCCIV-02-481 [2002] SASC 243 - SASC 2002 case summary — Zoe

[24]

The conclusion that the orders of a Court of Disputed Returns (established by the Parliament of a State) will not attract appellate powers under Chapter III of the Constitution is not inconsistent with the reasoning of the majority of the High Court in Sue v Hill (supra) which treated the original jurisdiction exercisable by a Court of Disputed Returns under the Commonwealth Electoral Act 1918 as falling within the "judicial power of the Commonwealth" under Chapter III. The Australian Constitution (s 47) has empowered the Australian Parliament to "provide" as to how questions with respect to disputed elections should be determined. This has been achieved in the Commonwealth Electoral Act by a conferral of jurisdiction on the High Court itself (a Chapter III Court) to be exercised by a single judge in accordance with s 79 of the Constitution coupled with a prescription under s 73 of the Constitution to achieve finality for the single judge's decision. However, in some circumstances this jurisdiction is conferred on a Supreme Court of a State (see Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at 481 and 522). The Australian Parliament could only establish such a regime in accordance with Chapter III and as a matter of statutory construction it can be seen how the jurisdiction conferred by the Commonwealth Electoral Act gives rise to Chapter III powers. However, it does not follow as a matter of analogy that jurisdiction exercised under State electoral laws should be treated as giving rise to orders which for appeal purposes lie within the "judicial power of the Commonwealth." Nor does it follow that all investiture of judicial power by the Commonwealth Parliament is necessarily to be characterised as lying within "the judicial power of the Commonwealth." It is recognised in re Tracey ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 that a court martial in performing its functions is exercising judicial power sui generis to the judicial power of the Commonwealth but nevertheless excluded from Chapter III (see at 540, 574 and 582) notwithstanding that "Chapter III of the Constitution confides the judicial power of the Commonwealth exclusively in courts of justice" (see at 539). Deane J rationalised the approach adopted in that special instance by reference to the way in which the exercise of the relevant powers had "traditionally been seen". Brennan and Toohey JJ (at 573) referred to the historical or traditional classification of a function as a significant factor to be taken into account in the process of characterisation. It seems to me that the history of Courts of Disputed Returns exercising jurisdiction under State law (to determine questions on behalf of the State Parliament) likewise justifies the exceptional treatment which has been accorded such courts in terms of characterisation of function.

[44]

Thus, although s 113 creates the offence of "misleading advertising" I do not consider that the section is expressed in a form which contains a rule relating to the conduct of the election. Section 113 creates an offence of misleading advertising (and provides a defence) and then provides a code whereby the Electoral Commissioner may take steps (with the aid of the Supreme Court if necessary) to prevent further publication and to obtain a retraction. In some limited circumstances an advertisement might bear upon the actual conduct of the election (for example if it contained misleading information as to where a polling booth was situated); in such circumstances the effect of the publication would stand to be assessed in accordance with common law principles as to whether there really had been an election in which electors had a proper opportunity to record a vote; alternatively the question might be asked whether the conduct infringed something which was implicit in the regulatory framework of the Electoral Act and susceptible of being dealt with under s 107(3)(b) as an irregularity (particularly if an electoral officer was involved). The working out of such a hypothetical example has not been argued and the application of general principle should be reserved until the point actually arises. However, I do not consider that s 113 contains a rule "in or affecting the conduct of an election" in the same way as does Part 13 Division 3. Whereas Division 3 (as its heading denotes) is concerned with actions in or affecting the conduct of the election for the purposes of s 107(3), Division 2 deals with advertising during the election period without purporting to touch the conduct of the election. Advertising in the vicinity of the polling booth is dealt with in Division 3 (see s 125(1)); signage displayed at polling booths by the Electoral Commission is dealt with in Pt 8. Breaches of these last-mentioned rules will give rise to "irregularities" within s 107(3) and are to be distinguished from the consequences of a breach of s 113 by reason of misleading advertising.

[207]

"(W)e are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there is no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. As we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament." (Emphasis in original).

[217]

"I am certain that those persons who placed these tickets upon the register which were seen by the Mayor to be stealthily put into the pocket of the personation agent and conveyed by him manifestly to some persons outside, committed a violation of the statutory declaration which they had made, and committed an offence within the meaning of the provisions of the Ballot Act, thereby rendering themselves liable to serious punishment. But that is the only protection which the Legislature has provided. They undoubtedly thought that that would be abundantly sufficient to secure the secrecy of the election. If it has failed to do so, it is because it is not possible for any machinery to be invented which shall secure perfectly the object which the Legislature had in view. ...... The punishment is specified by the Legislature; it must be found within the four corners of the Act of Parliament, and I have no power, neither has the common law any power, to supplement any additional penalty upon either the persons who transgressed the law or the persons for whose sake or in whose favour such an act may have been done. Upon that part of the case I entirely concur with what was said by my brother Martin in his evidence before the Select Committee upon Elections (June 29, 1869). When he was describing what the result would be of a breach of the law, he was asked by Sir George Grey, 'Do you mean that if it was proved that a candidate had committed acts which were illegal and which subjected him to penalties (it is as 'a candidate' there, and I agree that we must read it in the same light in this case as if it had been a candidate, assuming it was one of those things which came within the general law of agency) the judge could take no notice of it, unless it was an act which vacates the seat?' - and in answer my brother Martin said: 'I think certainly that the mere doing of an act which the Act means to be subject to a penalty but does not declare to affect the seat, could not possibly affect the seat.' "

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (319 paragraphs)

FEATHERSTON v TULLY No. SCCIV-02-481 [2002] SASC 243 (1 August 2002)

Parties

Legislation Cited (17)

Cases Cited (26)