Fittler v New South Wales Electoral Commission and anor [2008] NSWADT 116 | Case summary

REASONS FOR DECISION Decision 1 For the reasons we give below, the Electoral Commission unlawfully discriminated against Mr Fittler on 27 March 2004, and the complaint against it is substantiated. Randwick City Council did not aid and abet the Electoral Commission's unlawful discriminatory conduct, and the complaint against it is dismissed. Background 2 Mr Fittler is blind. In early March 2004, in anticipation of an election for his local council, Randwick City Council East Ward, on 27 March 2004, Mr Fittler wrote to the New South Wales Electoral Commission (at the time, the State Electoral Office), saying, relevantly: As a person with a vision impairment, I am unable to read text in a printed format . . . I wish to complete and submit my ballot paper privately, in accordance with Section 233 of the Commonwealth Electoral Act 1918 (Cth). I am therefore requesting that the New South Wales Electoral Commission make available to me and ballot form in Braille and a means of marking the ballot, such as a Braille embosser, at each of the upcoming elections. I am also requesting that the ballot boxes at the Coogee Public School have Braille markings on them to permit me to identify them accurately. 3 The evidence of the current Electoral Commission, Mr Barry, is that Mr Fittler's letter "was received by the office of the Electoral Commission on or about the first week in March 2004". Mr Fittler did not receive a reply to his letter before the election on 27 March. 4 On 27 March Mr Fittler attended a polling booth in the East Ward of Randwick City Council to cast his vote. He asked the polling official for "ballot papers in a format that I can read, like Braille or computer", and was told that "unfortunately the ballot papers are only available in a printed version", meaning ink on paper. Unable to read a ballot paper in that format, Mr Fittler went to the voting booth with his wife, who read the ballot paper to him and, so Mr Fittler believes, marked his vote in accordance with his instructions. With his wife's assistance Mr Fittler then deposited his vote in the ballot box. 5 The then Acting Electoral Commissioner, Mr De Celis replied to Mr Fittler's letter on 29 March 2004. The letter made no reference to its having been written after the election in relation to which Mr Fittler wrote his letter. The letter neither agreed nor declined to meet Mr Fittler's request to vote privately. The letter explained to Mr Fittler the New South Wales Electoral Commission's views on what it called "the difficulties" with Mr Fittler's "proposal". . . . the provision of Braille ballot papers across the State is a difficult goal to achieve. . . . For [the 2004 Council election] a general information brochure, list of candidates and polling places was produced, promoted and made available through the [Royal Blind Society]. However this does not extend to the provision of Braille ballot papers or over lay templates. 6 Mr Fittler subsequently complained of discrimination on the ground of his disability, saying that in order to vote on 27 March the Electoral Commission had "failed to provide (a) ballot papers and associated information in a format that I could read at the polling place; (b) a method of reading and completing the ballot papers which did not compromise my right to a secret vote; and (c) tactile or other accessible information identifying the separate ballot boxes". He said that Randwick City Council was also responsible for this discriminatory conduct. 7 There was no evidence or argument before us concerning part (c) of the complaint, and we do not consider it or make any findings on it. Nor was there evidence or argument before us concerning the "associated information" referred to, and we do not consider it or make any findings on it. The evidence and argument concerned a conflation of parts (a) and (b) of the complaint: the Electoral Commission's failure to provide to Mr Fittler ballot papers in a format that he could read and complete in a way that did not compromise his right to a secret vote. The issue is whether this conduct, if it occurred, was unlawful discrimination. Evidence of Braille ballot papers 8 Much of the evidence we heard related to voting with ballot papers printed in Braille, and it is important to explain at the outset the relevance of that evidence. In deciding Mr Fittler's complaint about the Electoral Commission's failure to provide a ballot paper with which he could vote privately, evidence concerning voting by Braille ballot paper is relevant for two purposes that we discuss later in the decision: whether it was reasonable for the Electoral Commission to provide Mr Fittler with an ink-printed ballot paper as only the means by which he could vote, and whether the Electoral Commission was required by legislation to provide only ink-printed ballot papers. 9 It is likely that Mr Fittler is not the only blind person who votes in New South Wales, and that the election on 27 March 2004 was not the last time that blind people will want to vote. But Mr Fittler made the complaint on his own behalf, complaining of the way that he was treated on 27 March 2004. The Tribunal was not requested to, and did not of its own motion, determine whether his complaint should be dealt with as a representative complaint (section 101 Anti-Discrimination Act 1977 (ADA)). The Minister did not refer a "matter" to the Tribunal as a complaint (section 95(2) ADA). The implications of these proceedings, whatever their outcome, for the future conduct of elections and the future voting of blind people, are irrelevant to our proper determination of whether the Electoral Commission and Randwick City Council, on 27 March 2004, discriminated against Mr Fittler. What was the service? 10 The Electoral Commission agrees that in conducting the election it was providing a service, which is an area of activity that is covered by section 49M ADA. 11 Mr Fittler describes the relevant service that the Electoral Commission was providing as enabling voters 'to comply with their statutory obligation to cast a vote, and to exercise their right to vote independently and privately'. Access to this service was, Mr Fittler says, conditional on voters 'completing a ballot-paper in a format which was in Roman letters printed in ink on paper'. 12 The Electoral Commission describes the relevant service that it was providing as 'providing a ballot paper, which conformed with legislative requirements, on which a person could cast a vote'. The Electoral Commission says that while there are a number of requirements a person must meet to vote, there was no requirement attaching to this particular service. The Electoral Commission submits "that what was 'required' of the Applicant (in a practical sense) was that he cast his vote by means of the printed ballot paper. This . . . is the way in which the requirement should correctly be characterised" (emphasis in the original). 13 It is apparent from these markedly different approaches by the parties that the characterisation of any requirement is dependent on the prior and precise identification of the service. As if commenting on the very different approaches taken in this matter by Mr Fittler and the Electoral Commission, Kirby J warned in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at p70 that "characterising the 'service' in question can itself involve the acceptance of a definition which will effectively determine the complaint of discrimination according to whether a wide or narrow focus is adopted". 14 The term 'services' has a wide meaning which extends to the duty or work of public servants (IW v City of Perth per Brennan and McHugh JJ at page 11; Gummow J at p41), although Kirby J said at p70 that the term "should be given its meaning in the context, and for the purposes, of the legislation in question". 15 When the existence of a requirement is in issue then "it is important to distinguish between the services provided and the requirement or condition imposed" (Waters v Public Transport Corporation ([1991] HCA 49; (1992) 173 CLR 349) per McHugh J at p407). McHugh noted at p405 that "the line between what is a 'requirement or condition' of using services and the services themselves is often a fine one calling for an exact description of the services provided". Similarly Dawson and Toohey JJ at p394 said: "for something to be a requirement or condition in relation to a matter it must be separate from that matter. However, whether such a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the matter is described and how the requirement or condition is characterized". They noted that in this exercise "the legislation should receive a generous construction . . . ". 16 Mr Fittler claims that that the services provided by the Electoral Commission "included . . . the maintenance of electoral rolls, the provision of polling places, the administration of Council elections, the printing of ballot papers, the provision of ballot papers in a form appropriate for voting, the delivery of [sufficient] ballot papers . . . , making inquiries of persons seeking to cast a vote, the provision of facilities to enable voters to cast an independent and private vote, the provision of equipment such as pencils or other writing implements for the use of voters, the provision of polling booths to enable voters to cast their vote independently and privately, the provision of boxes in which electors may deposit their completed ballot papers, rejecting votes which do not comply with the requirement of the [Local Government Act], preparing a list of names of electors who were entitled to vote at an election but failed to do so". 17 In its pleadings in preparation for the hearing, the Electoral Commission said that it provided a service only to the extent that it "conducted the election [and] arranged for ballot papers to be printed for the election, and to be delivered to persons entitled to vote". In submissions the Electoral Commission says that its service was merely the provision of a ballot paper that conformed with the legislative requirements. 18 The relevant role of the Electoral Commission, set out in the Local Government Act 1993 (NSW) at section 296(1), is "to conduct elections". To that end the Electoral Commission is obliged to appoint polling places, set fees, and "determine any matter not provided for by this Act or the regulations" (section 296(6)). For a local government election, as this election was, the relevant regulation was the since-repealed Local Government (Elections) Regulation 1998 (NSW) ('LGER'), which set out the many steps that had to be taken to conduct an election. Many of those steps were necessary to the overall conduct of the election, but were irrelevant to Mr Fittler, who was concerned only with voting. 19 The LGER, and detailed evidence we received about the various steps the Electoral Commission took to conduct the election on 27 March 2004, show that to enable a person to vote the Electoral Commission provided, for example, each of the means for recording a person's attendance to vote, the ballot paper on which a person could record their the vote, the venue and means for the person to complete the ballot paper, the means for the person to deposit the ballot paper, and the means for counting and recording the vote recorded on the ballot paper. Within the broadly described service of conducting the election, the Electoral Commission enabled people to vote, and each of the various activities involved in doing so is what Brennan J described in Waters (at pp375 and 377) as "a feature of the service". Mr Fittler's list of the features of the service (paragraph [16] above) is indicative, although we do not make any finding that that list is complete or accurate. We reject the Electoral Commission's narrow characterisations of its service: providing a conforming ballot paper does not alone enable a person to vote. The service the Electoral Commission offered to Mr Fittler and others was so much of the conduct of the election that enabled them to vote. 20 Mr Fittler goes further, however, and says that the Electoral Commission's service was not merely to enable him to vote, but to enable him to vote "independently and privately". 21 The manner in which a person had to vote - and so the nature of the vote that was the subject of the Electoral Commission's service - was set out in the LGER. Relevantly clause 73 said that "an elector is to (a) go alone to an unoccupied space set aside for voting at the polling place, and privately record his or her vote there on the ballot-paper, and (b) fold the ballot-paper so as to conceal the vote marked on it". Based on the references to the voter's being "alone", in "an unoccupied space", and "privately" recording their vote before folding the paper so as to "conceal the vote marked on it", we conclude that the legislature intended that a person will record a vote without any other person knowing what it is. This demands privacy. It is appropriate therefore to describe the service that the Electoral Commission provided to have been not merely enabling a person to vote, but enabling a person to vote privately, meaning to vote in such a way that no-one else was aware of their vote. 22 The position taken by the Electoral Commission is consistent with this view. The Electoral Commission argues - for a different purpose, identification of a voter, which we return to below - that the privacy of a person's vote is essential to the integrity of the system of voting, and that it has a statutory duty to ensure that a person's vote remains private. Evidence from the current New South Wales Electoral Commissioner, Mr Barry, supported this view. 23 As we noted above, the legislation uses the term 'private' and that is the term we use in our finding as to the nature of the service. A commonly used term is 'secret', as are the terms 'secret vote' and 'secret ballot', and Mr Fittler's complaint uses the term 'secret'. Possible differences in meaning between 'private vote' and 'secret vote' were discussed during the hearing. We cannot discern a substantive difference between the two terms in these circumstances, and expert evidence we refer to below equates the use of the word 'private' with the word 'secret' in this context. We make our finding in the same terms as is used in the legislation, that is voting 'privately'. 24 Mr Fittler says that the Electoral Commission's service was not only to enable him to vote 'privately' but, as well, 'independently'. We agree that if a person is dependent on the assistance of another to cast their vote then that dependence may compromise their privacy. There are circumstances when this would not necessarily be so. Privacy will require independence in circumstances where dependence would compromise privacy, and we consider that the need for privacy encompasses the need for independence. 25 Mr Fittler says that the Electoral Commission's service was not only to enable him to vote privately (and independently) but, as well to enable him to exercise his right to vote. The nature of the service did not depend at all on whether it was provided to meet a 'right', or for some other reason: the fact is that the Electoral Commission provided a service that enabled private voting. It is not necessary for us, for purposes of identifying precisely the service that was offered, to decide as well whether Mr Fittler had a right to that service. We do, however, return below to the question of there being a 'right' to vote when considering the effect on Mr Fittler of the imposition on him of a requirement. A requirement 26 The Electoral Commission provided Mr Fittler - and everyone else - with only one means of voting privately: use of a ballot-paper on which words were printed in ink (an 'ink-printed ballot paper'), and on which an elector had to mark their vote. In order to vote privately, therefore, the Electoral Commission required Mr Fittler to mark his vote on an ink-printed ballot paper. Inability to comply with the requirement 27 Mr Fittler could not mark his vote on an ink-printed ballot paper because he could not see to read the ballot paper. He says, therefore, that he could not comply with the requirement. The Electoral Commission says that Mr Fittler could - and in the circumstances did - comply, with assistance. 28 But when Mr Fittler marked his ballot-paper with assistance he was not voting privately. He was not receiving the service that he sought from the Electoral Commission and that the Electoral Commission offered. He was receiving an alternative service, which the Electoral Commission offers for circumstances when a person is unable to comply with the requirement attached to voting privately. Mr Fittler could not comply with the requirement attached to voting privately - marking his vote on an ink-printed ballot paper. For this reason he unwillingly, but necessarily (in order to vote at all), availed himself of the alternative service: voting with assistance, and therefore not privately. 29 Clause 118 of the LGER allows assistance to be given when a voter is dependent on assistance to be able to vote. Clause 118 operates only when, relevantly, "an elector is so disabled . . . that the elector is unable to vote without assistance". Mr Fittler was so disabled that he was unable to vote without assistance, because he could not see the ink-printed ballot-paper to read it. His wife had to read the ballot-paper to him, and he had to instruct her on how to complete it on his behalf so as to record his vote. Mr Fittler did not, therefore, vote privately pursuant to clause 73; he voted pursuant to clause 118 such that his vote was necessarily made known to a third party, and he did so only because he was unable to comply with the requirement attached to voting pursuant to clause 73. Others' ability to comply with the requirement 30 There is no dispute that the proportion of people who are not blind and who are able to mark their vote on an ink-printed ballot-paper is substantially higher than the proportion of people who are blind who are able to do the same. Most people who are not blind are able to mark their vote on an ink-printed ballot-paper, and no people who are blind who are able to. Even if allowance is made for the inability of people who have psychiatric or intellectual disabilities, who have physical disabilities, or who are illiterate in English, to mark their vote on an ink-printed ballot-paper, the proportion of people who are not blind and are able to mark their vote on an ink-printed ballot-paper is substantially higher than the proportion of people who are blind who are able to, which is 0 (nil) percent. Reasonable requirement? 31 Mr Fittler says that the requirement that was imposed on him - that he had to use ink-print paper voting to vote privately - was not reasonable having regard to the circumstances of the case. 32 When assessing the reasonableness of the requirement, "the proper course . . . is to ascertain the reasons underlying a respondent's insistence upon the relevant requirement or condition and to ask whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified" (Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364; (1988) EOC 92-239 per Wilcox J at 77,240). A way of asking this last question is to ask, "first, whether the imposition of the condition is appropriate and adapted to the performance of the activity . . . [and] secondly, whether the activity could be performed . . . without imposing a requirement or condition that is discriminatory . . . " (Brennan J in Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at p378). A relevant consideration is "the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition" (Brennan J in Waters at 378). Reasons for the requirement? 33 The first question is 'what were the reasons underlying the Electoral Commission's insistence on the relevant requirement?'. The evidence shows that a reason was the Electoral Commission's belief that it was bound by the legislative regime to require voting on ink-printed ballot papers. Evidence to this effect was given by the current Electoral Commissioner, Mr Barry, who said "It is my belief and understanding that the provisions of the [LGA and LGER] did not allow an elector to cast a valid (formal) vote by means of a ballot paper rendered in Braille". As well, Mr Barry offered a further reason for the Electoral Commission's imposition of the requirement: it believed that the method of voting provided for in clause 118 was an alternative way of providing the same service. 34 Mr Barry was not employed by the Electoral Commission in March 2004, and his evidence is not the best evidence of the reasons that were behind the imposition of the requirement on Mr Fittler. At the same time, there is no suggestion that a conscious decision was made to impose the requirement on Mr Fittler: the requirement was embedded in the long-standing practice of conducting elections, and the current legislation is in the same terms as the now repealed LGER. We accept that Mr Barry's extensive experience in the conduct of elections in Australia enables him to give reliable evidence of reasons that are likely to have been behind the requirement's being imposed generally as a matter of practice, and on Mr Fittler on this occasion. 35 Mr De Celis was the Acting Electoral Commissioner at the relevant time. Although we were told he was available, Mr De Celis was not called to give evidence. We can rely only on his letter to Mr Fittler of 29 March 2004, admitted without objection into evidence. 36 In his letter Mr De Celis is not as clear as Mr Barry's evidenced is on whether there was a view, at the relevant time, that ink-print paper voting was required by the legislation. In his letter Mr De Celis, addressing the possibility of Braille ballot papers proposed by Mr Fittler, does not say that Braille ballot papers would not comply with legislative requirements. Rather, he says "the provision of Braille ballot papers across the State is a difficult goal to achieve". After describing some of the legislative requirements and noting the large number of candidates, council areas and polling places, Mr De Celis says that "[o]ne difficulty is the amount of space Braille requires in producing text. In this respect it may be necessary in certain circumstances to abbreviate voting instructions and candidate information, without losing the intention of the electoral legislation". In a similar vein he notes issues of privacy, and concludes by saying that Mr Fittler's proposal of Braille voting "is not without some difficulties". 37 In his letter written at the time of the conduct complained of, Mr De Celis does not say that Braille voting cannot be done, or is not permitted; he only expresses the opinion that that there would be difficulties. Nowhere does Mr De Celis say that a reason for requiring voting on ink-printed ballot papers was that that method was necessary to comply with the relevant legislation. 38 Similarly, the letter from Mr De Celis is silent on whether there was a view that the method of voting provided for in clause 118 was an alternative way of providing the same service. In his letter to Mr Fittler, Mr De Celis, makes no reference to voting with assistance; nowhere does he say that a reason for requiring people to vote on ink-printed ballot papers was that there was an available alternative for those who could not. 39 That evidence indicates to us that, at the time the requirement was imposed on Mr Fittler, the Acting Electoral Commissioner was not necessarily of the view, as his successor now is, that the Electoral Commission was bound by the legislative regime to offer only ink-print paper voting, or that an alternative service was sufficient. There is only Mr Barry's suggestion that there was a view in the Electoral Commission at the relevant time that legislation required ink-print paper voting, and that the method of voting provided for in clause 118 was an alternative way of providing the same service. 40 We cannot be satisfied that these were in fact reasons for the imposition of the requirement on Mr Fittler. Reasonably possible other reasons that are consistent with the views Mr De Celis expressed in his letter include that Braille voting was assumed to be too expensive, that it was felt there was too little time to arrange it, or that there was uncertainty about its validity. Even if a reason for the imposition of the requirement on Mr Fittler was the belief that legislation required ink-print paper voting, or that clause 118 was an alternative way of providing the same service, we have decided below that those beliefs were mistaken. We have no reason to doubt that such beliefs would have been honestly held, but they were mistaken. Discriminatory effect of the requirement? 41 The second question is 'what discriminatory effects did the requirement have?'. The discriminatory effect of the requirement was that it prevented Mr Fittler from voting privately. We view this as a serious consequence, because the activity that Mr Fittler was excluded from was not trivial: it was a dimension of his right to participate on an equal footing in Australian's democratic process. 42 Although the ability to vote is a 'political right of citizenship' in Australia (Roach v Electoral Commissioner [2007] HCA 43 per Gleeson CJ at [11]), it is the right to vote privately that is in issue here. There is no explicit guarantee in Australia of the right to vote privately, and it is only debateable whether it is implicit in our democratic system (cf McGinty v Western Australia (1996) 186 CLR 140 per McHugh J at 244 and Gummow J at 283; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 per Kirby J at 260 [232]). However, a private, or secret, dimension of voting is recognised in Article 25(2) of the International Covenant on Civil and Political Rights: "Every citizen shall have the right and the opportunity . . . to vote and to be elected at genuine periodic elections which . . . shall be held by secret ballot". We heard uncontested expert evidence from Mr Bryan Mercurio of the Faculty of Law, University of New South Wales, that "[t]he right to vote in secret is now such a well-established, deep-rooted principle that many view absolute secrecy of the ballot as a necessary ingredient to maintaining democratic integrity". Mr Mercurio says that "the secret ballot is a central feature of democratic electoral systems and of the idea of a free vote . . . the principle is now so ingrained that it would be hard to imagine an election conducted anywhere in the world without the use of the secret ballot being defined or declared as free and fair". Mr Mercurio's reading of the Electoral Commission's role described in clause 73 LGER (see paragraph [18] above), is that it reflects the principle of absolute secrecy of the ballot. 43 The loss of privacy when voting is significant. The effect of the requirement imposed by the Electoral Commission is that electors who could not comply received a different service: voting with assistance and therefore without privacy. Mr Mercurio's opinion is that "[v]oting with assistance at the polling station manes that voters are denied the rights and protections associated with the secret ballot". His view is that assisted voting forces electors "to give up their right to the secret ballot. In addition, both equality and participatory rights are at stake . . . ". (and see Phillip Green, 'Transparency and Elections in Australia: The Role of Scrutineers in the Australian Electoral Process' in G Orr, B Mercurio and G Williams (eds) Realising Democracy, The Federation Press, Sydney 2003, 216 at 222: "An assisted vote is not a secret vote"). 44 The effect of the requirement was therefore to deprive Mr Fittler of this service, and so deprive him of the privacy of his vote. Appropriate and adapted? 45 The third question is 'is the imposition of the condition appropriate and adapted to the performance of the activity?'. The requirement was to a large extent appropriate, because it enabled most people to vote privately. It was not however, wholly appropriate, because it excluded some people from voting privately. Nor was the requirement adapted to the activity of voting privately, again because it operated to exclude some people. The reasons for its being, to an extent, inappropriate and not adapted, are addressed below when looking at its reasonableness, and whether making it appropriate and adapted would have caused unjustifiable hardship. An alternative to imposing the requirement? 46 In answer to the final question - 'could the activity be performed without imposing a discriminatory requirement?' - the evidence regarding Braille voting shows that private voting was possible by other than ink-print paper voting. The evidence shows as well that the cost of not imposing the discriminatory requirement in this case - that is, the cost of providing Mr Fittler with a Braille ballot paper - was very low. 47 In preparation for the hearing Mr Jay Richards, then Business Manager (Northern Region) for Accessible Information Solutions, Vision Australia, was briefed with a copy of the actual ink-print ballot paper used for the Randwick City Council election for East Ward on 27 March 2004, and was asked to provide a quote for converting it to Braille. His quote was for a ballot paper, in Grade 2 contracted Braille (for proficient Braille users) which would be 11 pages because one page of A4 ink print will convert to 11 pages of Braille print. Consistently with Mr Clark's evidence below, Mr Richards said that printing the ballot paper would require re-arrangement of the text but no change to the content. Mr Richards' quote was $44.00 for a master copy, and $4.40 for each copy. These rates are 'non-profit' rates which represent only cost-recovery, and no profit to Vision Australia. Mr Richards agreed while his quote allowed for proof reading for accuracy, it did not make provision for user-testing. 48 Mr Tony Clark, then Manager of Training, Technology and Employment at Vision Australia, gave evidence. He was asked whether it would be "possible for the March 2004 ballot paper for Randwick City Council - East Ward to be reproduced in Braille without otherwise altering in any way the content and layout of the ballot paper?'. Mr Clark replied that "it would be possible to produce a Braille ballot paper for Randwick City Council - East Ward in an understandable and useable way for a Braille user. This would enable the individual to cast a meaningful vote which could be independently counted by a sighted electoral official". He went on to say that "it is, however, not possible to produce a Braille ballot paper retaining the size or layout of the [ink] printed version", but that in the Braille production of a ballot paper "the meaning and interpretation can be retained". On the latter point, we note that we have decided below that it was not in fact necessary that the layout of the ballot paper not be altered in any way when printing it in Braille, and that it would not have been necessary for a Braille to retain the size or layout of the ink-printed version. 49 Mr Clark's evidence was that a Braille ballot paper had been used successfully in Victoria in 2002. His recommendation against the use in New South Wales of the template used in Victoria was based, he said, on assumptions that all New South Wales ballot papers would be required to be produced in Braille, and that Braille ballot papers would be provided wherever ink-print ballot papers were provided. These assumptions are not warranted in the matter before us, where we are concerned only with the provision of a ballot paper to enable Mr Fittler to vote privately in the Randwick City Council election for East Ward on 27 March 2004. In the absence of these assumptions, the possibility of having used the Victorian template in New South Wales was open to the Electoral Commission at the time of the conduct complained of. 50 Mr Clark's evidence was that "given that only a proficient Braille user is likely to utilise Braille ballot papers, the potential difficulties are few, although "[m]arking a ballot paper in Braille would be difficult and time consuming". He said that counting a vote recorded in Braille would mean that a non-Braille reader would have to "have a reference card with which to visually compare the dots". We heard no evidence that suggested that this apparently very manageable step could not have been taken for purposes of counting a vote in Braille for Randwick City Council East Ward. 51 Mr Clark said that the cost of producing a Braille version of the Randwick City Council East Ward ballot paper would have been $672.60 for a master copy, which would include a project management fee of $600 to cover, for example, some user-testing. He said the cost for each copy would be $28.60, on a fee-for-service basis. 52 Mr Michael Simpson was General Manager, Policy and Advocacy at Vision Australia. Mr Simpson's evident lack of enthusiasm for Braille voting is explained by a number of factors. In preparation for the hearing he was repeatedly asked on behalf of the Electoral Commission to identify only "practical difficulties (if any)" with Braille voting. He agreed that he sees Braille voting as having limited utility in meeting the needs of voters with a range of disabilities, as it is accessible only to the relatively few blind people who can read it. And he agreed that he has actively campaigned for electronic voting. 53 Despite this background to his giving evidence about the practicality of Braille voting, Mr Simpson agreed that would be possible for the March 2004 ballot paper for Randwick City Council East Ward to be reproduced in Braille: "If a ballot paper were to be provided in Braille to suit a particular individual's Braille proficiency and ability to effectively mark the paper in a form [so] as to cast a formal vote, then it may be a feasible and practical solution for the individual". He cautioned that "[i]t will not, however, be a practical solution which could be applied more generically to a broader population . . .". Asked to identify difficulties with Braille voting, Mr Simpson pointed out a number, but did not volunteer that any of them were practical reasons for not using a Braille ballot paper. For example, he made the same point Mr Clarke made about the need for officials to have an aid to read and count a vote in Braille. 54 The evidence satisfies us that it was possible for Mr Fittler to have voted privately without having to vote on an ink-printed ballot paper. Mr Fittler is a proficient Braille user. He could have been offered a Braille ballot paper. The cost - whether a non-profit $48.40, or a fee-for-service $672.60, or some fee in between that included some form of user-testing - was low by the standards of providing a public service, particularly in light of the cost of the election overall, which we discuss further below (at [98]). 55 In concluding that it would have been 'possible' to provide Mr Fittler with a Braille ballot paper, we have not directly addressed a particular argument of the Electoral Commission as to what the meaning of 'possible' is. In arguing the defence of statutory necessity, the Electoral Commission says that even if a Braille ballot paper contains the content of the ink-printed ballot paper, it is not a valid ballot paper if it does not conform to strict legislative requirements as to its form. The Electoral Commission says, therefore, that even if it is practically possible to produce a Braille ballot paper that is not a permissible alternative to requiring the use of an ink-printed ballot paper. We address this argument below and reject it (paragraphs [68] - [95]). As we say below, the legislative prescriptions as to form are not so strict as to prevent the necessary content being rendered in a Braille printed ballot paper. It is therefore sufficient for us, when considering the availability of an alternative to ink-print paper voting, to have regard to what is practically possible in producing a Braille ballot paper, despite its not exactly replicating the prescribed form. The requirement was not reasonable 56 If in fact the Electoral Commission believed at the time that ink-print paper voting was the only way of complying with the legislation, then it was mistaken, in practical terms as we have set out above, and in law as we discuss below. Further, it was open to the Electoral Commission to believe otherwise. There is no evidence that the Electoral Commission sought advice on the need for the requirement it imposed, even after Mr Fittler had asked for it not to be applied to him. There is no evidence that the Electoral Commission made any effort to respond to Mr Fittler's request, or to do anything other than apply to him the very requirement he asked to be relieved of so he could vote privately. After the event the Electoral Commission volunteered reasons why "the provision of Braille ballot papers across the State is a difficult goal to achieve", but not why the requirement to use ink-print paper voting to vote privately was imposed on him. It would have been unremarkable in 2004 to have expected that a public authority, particularly one charged with responsibility for ensuring that people could vote privately, would take steps to provide its service to a blind person who requested it. To put that expectation in terms of the issue, it was not reasonable in 2004 for a public authority charged with responsibility for ensuring that people could vote privately, to impose a requirement on access to its service that excluded a blind person in circumstances where the person had drawn attention to the requirement and to their desire to be relieved of it. 57 As we said above at [40], we do not know what the reasons were, if any other than long-standing practice, for the Electoral Commission's imposition of the ink-print paper voting requirement on Mr Fittler, although it is possible that the Acting Electoral Commission at the time shared the current Electoral Commission's view that it was a strict legislative requirement. What risk did the Electoral Commission face if it had not imposed the ink-print paper voting requirement on Mr Fittler? 58 In its preliminary strike-out application the Electoral Commission relied on Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355). The Tribunal expressed the view that if the test proposed in Project Blue Sky is apt in these circumstances, then the answer to it is that it was not the purpose of the LGA and LGER that an act done in breach should be invalid. The position of the Electoral Commission under the LGA and LGER, and section 296(1) LGA in particular, is similar to that of the Australian Broadcasting Authority under section 160 of the Broadcasting Services Act 1992 (Cth) as it was considered in Project Blue Sky, and the same could be said of the operation of the Electoral Commission under the LGA and LGER as McHugh, Gummow, Kirby and Hayne JJ said of the operation of the ABA under the Broadcasting Services Act (footnotes omitted): 95. . . . Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, section 160 requires the functions of the ABA to be performed in a manner consistent with [among others] the objects of the Act . . . In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity. . . . 97. Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by section 160, the likelihood of that body breaching its obligations under section 160 is far from fanciful, and, if acts done in breach of section 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA. . . . 99. . . . the best interpretation of section 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid. 100. In a case like the present, however, the difference between holding an act done in breach of section 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of section 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action. 59 It would seem therefore that the Electoral Commission did not risk invalidating the election. Had the Electoral Commission enabled Mr Fittler to vote privately other than by ink-printed ballot paper, a person with sufficient interest might have sued for a declaration that the Electoral Commission acted in breach of the LGA and LGER and might have obtained an injunction restraining it from counting the vote, or perhaps from repeating its conduct. It is hard to imagine who might have had a sufficient interest in the Electoral Commission's decision to enable a blind person to vote privately such that they could pursue such a claim, and any apprehension the Electoral Commission might have had of the risk of this occurring does not alter the unreasonableness of the requirement. Discriminatory conduct 60 In light of the above, we conclude that, in providing a service that enabled people to vote privately the Electoral Commission, through its imposition of an unreasonable requirement with which Mr Fittler was unable to comply, discriminated against Mr Fittler (section 49B(1)(b) ADA) in the terms on which it provided him with that service (section 49M(1)(b) ADA). 61 The Electoral Commission has two answers to this, the first of which is that its imposition of the requirement on Mr Fittler was necessary in order to comply with a requirement of the LGER (section 54 ADA). Section 54: res judicata? 62 Before the full hearing of this matter the Electoral Commission applied to have Mr Fittler's complaint dismissed, saying that if it were found to have discriminated through the imposition of a requirement on Mr Fittler, then its conduct was not unlawful because it was made necessary by the LGER. The Tribunal, constituted solely by Mr Rice, who presided over the full hearing, dismissed the Electoral Commission's application (Fittler v NSW Electoral Commission and anor [2007] NSWADT 136) saying at [36] "The Electoral Commission has not satisfied me that the [Local Government Act and Local Government (Elections) Regulation] were mandatory and specific as to the format in which Mr Fittler was required to complete the prescribed form. In my view there was a discretion available to the Electoral Commission as to the manner in which the specific directions of the LGA and LGER could have been carried out." More specifically, the Tribunal said: 29 . . . The Electoral Commission's argument is that a ballot-paper that is embossed in Braille is not in the prescribed form of Schedule 8. 30 I am not satisfied that that is so. The Electoral Commission's argument conflates ideas of form and format. Mr Fittler's complaint is not about the form as it is prescribed. It is about the format in which he was required to complete the prescribed form. 31 There is a single indication in the LGA and LGER as to the manner in which the prescribed form must be rendered, and it is only an indication. Section 324(2) LGA says that "The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties' names or abbreviated names". 32 This is the only reference that I can find in the LGA and LGER to size and style of "type" of "letters". I do not know if reference to the "type" of "letters" is necessarily a reference to only printed Roman letters, or whether it could encompass Braille. I do not know if it is possible in Braille to represent capitals and uniformity of "size and style". 33 This single reference, and the unanswered questions that flow from it, are far from sufficient to satisfy me that, as the Electoral Commission claims and has the onus of establishing, the LGA and LGER are mandatory and specific and permitted no means of compliance except to render the ballot-paper, in the prescribed form, in the manner in which it was. 63 In rejecting the pre-trial dismissal application, the Tribunal did not find that the Electoral Commission's conduct was not necessary in order to comply with a legislative requirement; rather, the Tribunal was not satisfied, on the material available to it, that the conduct was necessary. The question of necessity remained open. 64 At the conclusion of the full hearing the Electoral Commission renewed its argument under section 54, on the basis of evidence it led at the hearing. Mr Fittler objects to our considering the Electoral Commission's argument, relying on "the doctrines of res judicata and issue estoppel [that] are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation')". As well, Mr Fittler relies on an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). 65 The doctrine of res judicata is inapplicable. It applies to prevent a claim being made again after there has already been a final decision on the merits of the claim; that is not the situation here. Similarly, the doctrine of issue estoppel is inapplicable. It applies to prevent parties relying again on matters which have already been finally decided between them; that is not the situation here. Nor does an Anshun estoppel arise: it applies when "a party seeks in subsequent proceedings to raise a defence . . . that could have been raised in earlier proceedings between the same parties, but was not" (Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43 at [26] cited in Sotiropoulos v Mattana Coiffure Pty Limited (No 3) [2006] NSWADT 234 at [28]). 66 In this matter the Electoral Commission sought, and failed to establish the grounds for what was, effectively, an order for summary dismissal of a claim. The Electoral Commission's application was made under section 102 of the Anti-Discrimination Act 1977 which is consistently referred to and dealt with as a summary dismissal provision (example Razaghi v Director General, Department of Health & Anor [2005] NSWADT 202 at [13]; Burns v Laws (No 4) [2007] NSWADT 220). Similarly worded provisions in the Federal jurisdiction are dealt with similarly (example McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477). 67 It is unremarkable that the same argument that failed in a summary dismissal application should be raised again after a full hearing of the matter. As the wording of the Tribunal in its earlier decision indicated, the argument was not resolved conclusively at that stage. The application was an unsuccessful attempt to avoid a full hearing, and the associated time and cost. The question of necessity remained open, and we will now resolve it finally. Section 54: conduct necessary for legislative compliance 68 The Electoral Commission says that it had no choice but to require Mr Fittler to vote privately (that is, to vote under clause 73) by marking a ballot-paper on which words were printed in ink, and that that method of voting privately was required by terms of the Local Government Act 1993 (LGA) and LGER. For convenience we will refer to this required method of voting which is in issue as 'ink-print paper voting'. 69 It is for the Electoral Commission to establish whether ink-print paper voting was necessary. As we noted above, the possibility of Braille voting is relevant only as a way of demonstrating, if in fact it does, that the legislation was not so prescriptive as to necessitate ink-print paper voting. There could be other ways of making the same point, and, if so, evidence of any of them would be similarly relevant. The Electoral Commission cannot establish that ink-print paper voting was necessary by showing that Braille voting was not permissible; the question is simply whether the legislation operated so as to make ink-print paper voting necessary. 70 The Electoral Commission relies on a number of provisions of the LGER to say that ink-print paper voting was the only permissible form of voting that the Electoral Commission could offer. There are two parts to this: paper, and ink-printing. Must the ballot paper be paper? 71 We agree that only 'paper', or a material with paper-like qualities, could satisfy the requirements of the LGER. A person may vote under clause 73 only on a "ballot-paper". The term "ballot-paper" is not defined. There are, however, extensive references to "ballot-paper" throughout the LGER from which we can comfortably draw an inference as to at least one intended characteristic of a "ballot-paper": it had to have been made of paper, or of a substance - such as a form of plastic or cloth, we suggest - which has similar characteristics. A ballot-paper that conformed with the requirements of the LGER could not, for example, have been a 'page' on a computer screen or, as it seems a cheque could be, the side of a cow (cf Board of Inland Revenue v. Haddock and Rex v. Haddock, Case No 32 in Uncommon Law, Methuen, 1935). The requirements of the LGER were such that only a paper ballot-paper made of paper or similarly functional material could have complied. The returning officer or an electoral official had to deliver to a voter a ballot-paper that was initialled "on the back" (clause 72(1)). This indicates to us that the ballot-paper was intended to be tangible and to be receptive on its reverse to receiving and retaining a mark of some sort. Clause 73 similarly indicated that the ballot-paper was intended to be tangible, not rigid, because the elector had to "fold it". Clause 38 specified that a ballot-paper was to be "printed", and so indicated that the ballot-paper was intended to be tangible and to be receptive to receiving and retaining a mark of some sort. One page? 72 The Electoral Commission's submission, however, goes further. First it says that it can be inferred from various provisions of the LGER that a ballot-paper had to have been a one page document. In light of the following analysis we do not agree: there is no conclusive statement or necessary implication to that effect in the LGER. 73 The Electoral Commission relies on clause 41 of the LGER which required the returning officer or an electoral official to initial a ballot-paper "on the back . . . so as to be easily seen when the ballot-paper is folded to conceal the elector's marks." This may be, as the Electoral Commission submits, "suggestive of a single sheet ballot-paper", but it is not conclusive; a bundle of multiple sheets of paper can be initialled "on the back". Clause 73(b) required the voter to fold the ballot-paper. Again, this may be, as the Electoral Commission submits, "suggestive of a single sheet of paper", but it is not conclusive; a bundle of multiple sheets can be folded. Clause 38(4)(b) required the ballot-paper, when there are 2 or more groups, to have "the names of candidates included in the groups . . . printed in groups across the ballot-papers (starting from the left side)". Evidence satisfies us that, as the Electoral Commission submits, "it is long-established electoral practice that all candidates are presented on the one piece of paper". It does not follow from this long-established practice that the ballot-paper could only be a single sheet of paper. We do not agree with the Electoral Commission that to have the names of candidates included in the groups printed in groups across a multiple-paged ballot-paper on successive pages would "render ineffectual the direction in clause 38(4)(b) that the names of groups start 'from the left side'". 74 The ballot paper for the Randwick City Council election had to be in Form 6 of Schedule 8 of the LGER (cf clause 38(8)). But it is not the case, as submitted by the Electoral Commission, that Form 6 "prescribes a single page ballot-paper"; no reference was made in Form 6, or elsewhere in the LGER, to the number, or indeed size, of pages. Form 6 required what the Electoral Commission describes as a "bold dark line separating 'above the line' voting from 'below the line'", and the Electoral Commission says that "[t]his simple distinction would be rendered meaningless if a ballot-paper was printed on multiple pages". We disagree. There is no apparent reason why the line could not continue across multiple pages. 75 We conclude that the LGER was not as narrowly prescriptive as the Electoral Commission claims and, although it required a ballot paper to be of paper or a material of similar qualities, it did not require a ballot paper to be a single page. Must the ballot paper be printed ink? 76 In light of the following analysis we do not agree with the Electoral Commission's contention that to comply with the LGER a ballot-paper had to have been printed in ink; there is no conclusive statement or necessary implication to that effect in the LGER. Identifying mark? 77 First, the Electoral Commission says that ink-printing was necessary to comply with clause 76(1)(c) of the LGER, which invalidated a vote if it contained "a mark or writing which, in the returning officers' opinion, would enable the elector to be identified". This provision is most obviously directed at identifying marks made by someone on the already-printed form that would identify the voter and so risk invalidating the vote (see example Kean v Kerby (1920) 27 CLR 449). The Electoral Commission argues that the provision can and, having regard to the intended privacy of the vote, should be read to have required the Electoral Commission to ensure that the form of the ballot paper itself would not be marked in such a way, such as by Braille printing, as to enable an elector to be identified. 78 The Electoral Commission argues that the effect of the provision is to require ink-print paper voting, because only ink-print paper voting will enable a voter to not be identified. On the basis of the evidence, particularly that of Mr Barry, we disagree. The evidence satisfies us that there was a risk that, had Mr Fittler been provided with a form for voting that was different from the form used by anyone else (for example, Braille), his vote would have been recognised by an official in the counting of votes at the polling booth. But the evidence did not establish that this risk was a certainty, or that it could not be avoided. 79 It is not the case, as Mr Barry said in his evidence, that "election officials and/or scrutineers . . . would have known how Mr Fittler had voted" had he used a Braille ballot-paper (emphasis added). Rather, it was a possibility, and an avoidable one. In cross-examination, Mr Barry agreed it was not necessarily the case that election officials and/or scrutineers would have known how Mr Fittler had voted. He agreed that it is only a possibility that the same official who gives Mr Fittler a Braille ballot-paper would be at the counting of that vote and would recall Mr Fittler's name when the vote was counted. He gave evidence that the risk of election officials and/or scrutineers knowing how an elector had voted arises as matter of course in rural towns, where voting patterns in a small community can enable an official to identify a vote as having been cast by a particular elector. Mr Barry described how steps are taken to avoid this risk by sending the papers elsewhere to be counted, by bringing the papers into a larger centre for counting. Although the Electoral Commission says that ink-print paper voting is necessary to ensure that the form of the ballot paper would not enable an elector to be identified, the Electoral Commissioner's evidence shows that ink-print paper voting does not always achieve this. What is necessary is that the elector not be identified. No evidence was led to say that ink-print paper voting is required by the legislation as the only method of voting that met this need. 80 The invalidation of a vote because of an identifying mark is in fact a matter that turns on the Returning Officer's opinion (see clause 76(1)(c) above at paragraph [77], and clause 79(1)), a point made by Mr Barry. That opinion will necessarily be informed by the circumstances. The likelihood of the Returning Officer's opinion being that a mark or writing would enable the elector to be identified would be considerably lower, if not negated, if there were arrangements in place to avoid the risk of identification, such as those in place for the rural polls described by Mr Barry. Mr Barry agreed he had not sought the opinion of relevant Returning Officer for the March 2004 election as to whether in his opinion, Mr Fittler's use of a Braille ballot-paper would have invalidated his vote. Group voting square? 81 Further, the Electoral Commission says that ink-printing was necessary to comply with section 308A(4) of the LGA, which requires " A group voting square . . . to be printed on the ballot-papers above the names of the candidates in each group that has duly requested a group voting square . . .". It is not apparent that this requirement is met only by ink-printing. We are not satisfied that it cannot be met by, for example, Braille printing. The Electoral Commission says that section 308A(4) requires that "the group voting square appear 'above' (that is, above and on the same page as) the names of the candidates in each group". But the Electoral Commission's interpolation of "and on the same page" is unwarranted. It is not supported by the terms of section 308A. As we have said above, a ballot-paper can be more than one page. Capital letters? 82 Further, the Electoral Commission says that ink-printing was necessary to comply with section 324(2) of the LGA, which requires "The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates . . . to be in capital letters in type that is uniform in size and style for all of the political parties' names or abbreviated names". In Fittler v NSW Electoral Commission and anor [2007] NSWADT 136, the Tribunal said: 31 There is a single indication in the LGA and LGER as to the manner in which the prescribed form must be rendered, and it is only an indication. Section 324(2) LGA says that "The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties' names or abbreviated names". 32 This is the only reference that I can find in the LGA and LGER to size and style of "type" of "letters". I do not know if reference to the "type" of "letters" is necessarily a reference to only printed Roman letters, or whether it could encompass Braille. I do not know if it is possible in Braille to represent capitals and uniformity of "size and style". 83 Having now heard evidence on this question, it is not apparent that no form of printing other than ink-printing will achieve compliance with section 324(2). We are satisfied that compliance with section 324(2) can be achieved with, for example, Braille printing. The evidence shows that a capital letter in Braille is designated by a Braille character that indicates that the letter that follows is a capital letter, and that a series of capital letters is similarly indicated by a preceding Braille character. The Electoral Commission says that this means that "there are no capital letter characters as such". We disagree. There are capital letters in Braille. If by "as such" the Electoral Commission means that a capital letter in Braille is not signified in the same way that it is signified in ink-printed Roman letters, we agree. Braille signifies a capital letter differently, and a reader of Braille print will recognise a capital letter just as a reader of Roman letters will recognise a capital letter. Form 6? 84 Finally, the Electoral Commission relies on Form 6, which is set out in Schedule 8 of the LGER and is the Form required to be used (clause 38(8)) for an election in which "there are one or more groups and one or more groups has a group voting square", as was the case for Randwick City Council east Ward on 27 March 2004. 85 The Electoral Commission says that ink printing was necessary to comply with Form 6 in Schedule 8 of the LGER. Clause 38(8) said that "the ballot-papers are to be in Form 6". The Electoral Commission did not rely on any authority that helps us to understand how expansive or restricted a meaning is to be given to the phrase "the ballot-papers are to be in Form 6". If the phrase can be understood to mean, for example, 'the ballot-papers are to contain only the information set out in Form 6 without amendment', it does not require a ballot paper to be printed in a certain font size or type, or even in Roman letters in ink at all; the 'information' could be set out in, for example, Braille or in both Braille and ink. If, on the other hand the phrase must be understood to mean for example, 'the ballot-papers are to be set out only in the manner shown in Form 6', then it could indeed require a ballot paper to be printed in a way that looks exactly like Form 6. There are no prescriptive words in clause 38 and Form 6 that preclude the first of these two possible approaches, or that necessarily require the second. 86 Mr Barry provided us with copies of Form 6 as they had been produced for actual elections. Treating Form 6 as a strict template for the way in which a ballot paper must be made available, as the Electoral Commission contends, we make the following observations on the actual ballot papers the Electoral Commission tendered, comparing their appearance and contents with the appearance and contents of Form 6 as it appears in New South Wales Rules, Regulations and By-laws (1998) Volume 2, Extract Number 503, at pages 123-124: a) Form 6 showed candidates' first names printed under their surnames, but the Tweed Shire Council ballot papers for 27 March 2004 varied from this in that the candidates' first names were printed next to their surnames. b) Form 6 required a notice to be printed at the bottom "ELECTORS PLEASE NOTE: YOU MUST NOT TAKE A BALLOT PAPER OUT OF THE POLLING PLACE", but the Lake Macquarie City Council West Ward ballot paper for 27 March 2004 varied from this in that the notice printed at the bottom omitted "ELECTORS PLEASE NOTE:". c) Form 6 showed a ballot paper be printed in a serif font but The Tweed Shire Council ballot paper and the Lake Macquarie City Council West Ward ballot paper varied from this and were printed in a sans serif font, while the Holroyd City Council North Ward ballot paper for 27 March 2004 was consistent with it and was printed in a serif font. d) Form 6 showed, at the top of the ballot paper: i. the name of the area, centred on the page ii. below the name of the area, the words 'Election of [number] councillors held on [date]', justified left on the page But all three ballot papers - Tweed Shire Council, Lake Macquarie City Council West Ward and Holroyd City Council North Ward - varied from this, showing: i. the words 'Election of [number] Councillors' centred on the page ii the name of the area followed by the name of the ward if applicable, in the top right hand corner of the page iii underneath the name of the area, also in the top right hand corner, the date of the election, except that the Tweed Shire Council ballot paper shows the date as '27th March 2004', the Lake Macquarie City Council and Holroyd City Council North Ward West Ward ballot papers show date as '27 March 2004', and the Holroyd City Council North Ward West Ward ballot omits the word 'on' from between the word 'held' and the date. 87 The forms described above were relied on by the Electoral Commission as examples of Form 6 that complied with the LGER . In their detail they varied from the prescribed form. Although, the Electoral Commission submits that the requirements of the LGER were "highly prescriptive", and that an object of the LGER was "achieving consistency, certainty and uniformity in the electoral process", it is apparent from the examples above that the prescriptive requirements of the LGER are not iron cast and rigid. 88 The evidence satisfies us that phrase in clause 38 "the ballot-papers are to be in Form 6" should be understood to mean 'the ballot-papers are to contain only the information set out in Form 6 without amendment', rather than to mean 'the ballot-papers are to be set out only in the manner shown in Form 6'. Form 6 sets out the information that must be conveyed. Form 6 does not, for example, preclude setting out the information by means of, for example, Braille or both Braille and ink. Nor does it necessarily preclude providing instructions for the completion of the Form, as long as the information is set out in the form as prescribed. Interpretation Act 89 Section 80(1) of the Interpretation Act 1987 (NSW) provides that if the presentation of a prescribed form (such as Form 6) varies in some way from the prescribed form, "strict compliance with the form is not necessary but substantial compliance is sufficient". 90 In discussing section 25C Acts Interpretation Act 1901 (Cth), which is in substantially similar terms to section 80 of the New South Wales Interpretation Act 1987 (see Dennis Pearce Statutory interpretation in Australia, Sydney Butterworths, 6th edition at 351), Simamba wrote that "One thing is clear . . . If the form does not look like the prescribed form in that it is bigger, smaller or arranges material in a slightly different order, it is good . . . so long as it is not calculated to mislead". (Bilika H. Simamba, 'To What Extent Can One Deviate from Prescribed Forms without Affecting Their Validity? (2007) 28(1) Statute Law Review 28(1) 68 at 70). Simamba contends (at 71) that section 25C could be read either to allow "only to the arrangement of the material and other matters that do not affect the details contained", or to allow "even substantive deviations (so long as they are not substantial) . . . so long as they do not mislead". Having regard to comparable provisions in New Zealand, Canada and Zambia, Simamba suggests (at 72) that a provision such as section 25C should be read so that it invalidates a form only when changes from the prescribed form "are not conducive to the attainment of the objectives of the [relevant] Act". 91 The evidence in this matter is that if the ballot paper were produced in Braille, the content would be the same as the prescribed content (differently from the situation in, say, Adams v Lambert [2006] HCA 10; (2006) 225 ALR 396). In those circumstances, a Braille ballot paper would not have been a change from the prescribed form that was 'not conducive to the attainment of the objectives of the LGER'. 92 Pearce makes the point (at 351), citing Federal Court authority, that reliance on provisions such as section 25C and section 80 is "subject to a contrary intention appearing from the [relevant] Act requiring the form to be strictly followed". The only provision in the LGER that referred to Form 6 was clause 38(8), which said only that "the ballot-papers are to be in Form 6". We do not read this as having required the form to be strictly followed. Conclusion on section 54 93 Clearly Form 6 had to be complied with. But the Electoral Commission cannot point to any explicit mandatory prescription of ink-print paper voting, or any proscription of some other means of presenting a ballot paper. Further, in the absence of a provision requiring the form to be strictly followed, section 80(1) of the Interpretation Act 1987 (NSW) preserved the validity of a form that substantially complied with Form 6, as long as changes from the prescribed form did not impede the attainment of the objectives of the LGER. We conclude that the LGER was not as narrowly prescriptive as the Electoral Commission claims and, although it required a ballot paper to be of paper or a material of similar qualities, it did not require a ballot paper to be a single page or to mirror precisely Form 6 in Schedule 8 of the LGER. 94 The evidence has not led us to a view that is different from that of the Tribunal on the earlier occasion. It remains the case that the LGA and LGER were not mandatory and specific as to the format in which Mr Fittler was required to complete the prescribed form, and that "there was a discretion available to the Electoral Commission as to the manner in which the specific directions of the LGA and LGER could have been carried out" (at [36]). 95 There was room for the Electoral Commission to decide whether a particular form of voting complied with the requirements of the legislation. We are, therefore, not satisfied that it was necessary - within the meaning of section 54 ADA - for the Electoral Commission, in order to comply with a requirement of the LGA or the LGER, to make only ink-print paper voting available as the means by which Mr Fittler could vote privately. The Electoral Commission seems to have not looked at the relevant legislation in a way that explored its scope; it seems to have assumed that because ink-print paper voting is the usual manner of voting, the legislation limits voting in that way. We are satisfied that the Electoral Commission could, for example, have made Braille voting available to Mr Fittler and at the same time have complied with the requirements of the LGA and the LGER. Unjustifiable hardship 96 Alternatively to its argument under section 54 ADA, the Electoral Commission says that to have provided the service in a non-discriminatory manner would have imposed unjustifiable hardship on it. 97 The Electoral Commission relied on evidence of the cost and inconvenience of its providing the service in Braille, as Mr Fittler proposed that Braille was a means by which Electoral Commission could have provided him the service in a non-discriminatory manner. As we said above, voting under the LGER had to be on paper or some similar material; computer voting is unlikely to have complied with the LGER. Much of the evidence we heard was about the cost and logistics of the Electoral Commission providing its service through use of Braille ballot papers in all wards in all council areas in New South Wales. Mr Barry, for example, said "To ensure exactly the same opportunities are afforded to a person with a visual impairment who reads Braille as are offered to a sighted elector, Braille ballot papers would have to be available on request at all voting points in the election process". But that is not what the Electoral Commission would have to have done to have provided the service to Mr Fittler in a non-discriminatory manner. All that the Electoral Commission had to do was make available to Mr Fittler a Braille ballot paper for the Randwick City Council East Ward on 27 March 2004. The Electoral Commission did not have to implement state-wide measures so as to not discriminate against Mr Fittler. In not implementing state-wide measures the Electoral Commission risked other complaints such as that made by Mr Fittler and, had there been other such complaints, then an assessment of the cost and inconvenience to the Electoral Commission in those circumstances might be different. But they are not the circumstances of this matter. 98 Far from any cost that would have caused hardship, there would have been no cost to the Electoral Commission in preparing a Braille ballot paper for Mr Fittler to use in the Randwick City Council East Ward election on 27 March 2004. The cost of the election, although determined by the Electoral Commission and the consequent decisions it made as to how to conduct the election, was met by Randwick City Council (section 296(7) LGA). The Electoral Commission knew that this was the case. Even had the cost been a matter for the Electoral Commission, the evidence shows that the cost - somewhere between $50 and $700 - was small by any standards. The cost to Randwick City Council of the 2004 election was $251,076. Mr Barry's evidence is that the overall costs of 2008 local council elections could be around $31 million. 99 There may have been some inconvenience caused to the Electoral Commission in preparing a Braille ballot paper for Mr Fittler to use in the Randwick City Council East Ward election on 27 March 2004. The uncontested evidence of Mr Barry is that it was not until 27 February 2004, when nominations closed, that preparation of the ballot papers could have begun. Ballot papers then had to be available for pre-poll voting, postal voting and institutional (eg hospital) voting, by 15 March. 100 The Electoral Commission did not have in place any alternative to an ink-print paper vote for purposes of voting privately. The Electoral Commission was alerted to Mr Fittler's request for the service to be made available by other means when it received his letter in early March. It had only until 15 March to prepare voting papers, but Mr Barry's evidence is that the Electoral Commission necessarily worked within such a tight timeframe. We heard no evidence that the commissioning of a Braille ballot paper for Mr Fittler within that timetable, even if difficult, would have caused any hardship to the Electoral Commission. Although the Electoral Commission would have to have taken measures to ensure that Mr Fittler's ballot paper was not identifiable to the election officials and scrutineers, Mr Barry's evidence is that such measures are taken as a matter of course for some rural polling places. 101 To secure a Braille ballot paper for Mr Fittler to use in the Randwick City Council East Ward election on 27 March 2004 would have been additional work that no doubt the Electoral Commission, preparing for an imminent election, could have done without. But we are not satisfied that the degree of the difficulty, if it constituted a hardship, would have been unjustified in the circumstances. All that was required was the conversion to Braille of a single ink-print ballot paper, the form and content of which had been finalised by 15 March. 102 If the Electoral Commission had received a number of requests such as Mr Fittler's at the same short notice, and if the votes were to have been cast in different wards requiring different papers, then the Electoral Commission may have faced an unjustifiable hardship in providing a non-discriminatory service. But that is not what happened. What happened is that Mr Fittler asked, in short but sufficient time, for one ballot paper at one booth to be made available in a form by which he could vote privately. It would not have caused the Electoral Commission unjustifiable hardship to have provided this service. Summary conclusion re Electoral Commission 103 The Electoral Commission imposed on Mr Fittler a discriminatory requirement in making private voting available to him. The requirement was not reasonable in the circumstances. Imposition of the requirement was not made necessary by the LGA or the LGER. It would not have caused the Electoral Commission unjustifiable hardship to have provided the service to Mr Fittler in a non-discriminatory manner. In those circumstances the Electoral Commission unlawfully discriminated against Mr Fittler on 27 March 2004, and the complaint against it is substantiated. Damages 104 Mr Fittler gave evidence that he felt like a second class citizen, and was frustrated that the Electoral Commission seemed to not recognise that an ink printed ballot paper denied him his private vote. He seeks monetary compensation for hurt and humiliation. 105 Mr Fittler had been required previously to vote by way of an ink printed ballot paper. It was possible, if not likely, that despite his request he would be required to vote by that means on this occasion. On the very scant evidence available to us we cannot say to what degree Mr Fittler's feelings were attributable only to the Electoral Commission's conduct this occasion, and to his situation more generally that whenever he has voted, in elections conducted by people and entities other than the New South Wales Electoral Commission, he has had to vote by way of an ink printed ballot paper. 106 We accept that, to some degree, the discriminatory conduct of the Electoral Commission on this occasion, even if it was not the sole or primary cause Mr Fittler to feel that he was a second class citizen, then at least exacerbated that feeling, and caused or compounded Mr Fittler's feeling of frustration at his situation in relation to private voting. 107 An award of damages in these circumstances is not an accurate measure that can be compared on a proportionate basis with other awards in other circumstances. Rather, it recognises the fact that the discriminatory conduct caused or compounded some degree of hurt and humiliation. In our view it is appropriate in the circumstances to award an amount of $5,000 as compensation for damage suffered by Mr Fittler by reason of the Electoral Commission's conduct. Other orders 108 Mr Fittler seeks further orders: that the Electoral Commission does not continue its discrimination, and that the Electoral Commission take all reasonable and necessary steps to enable Mr Fittler to vote privately in the 2008 New South Wales local government elections. 109 The only relevant power that the Tribunal has is "make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations," (section 108(2)(b) ADA). Such an order can extend to conduct of the respondent that affects persons other than the complainant or complainants (section 108(3) ADA). 110 The discriminatory conduct occurred in March 2004. It is not continuing. It may, however, be repeated, and Mr Fittler has identified the 2008 New South Wales local government election as an occasion when it might be repeated. 111 Having regard to the consequences for a party who breaches an order of the tribunal (section 111 ADA), it is incumbent on us to state with precision the conduct that has been found to be unlawful that must not be repeated. The discriminatory conduct on this occasion was the imposition of a requirement that was not reasonable in the circumstances, that was not made necessary by since-repealed legislation, in circumstances where the Electoral Commission would not have suffered unjustifiable hardship had it provided the service in a non-discriminatory manner. To repeat the conduct there would have to exist the same circumstances that made the conduct unlawful. Although there will be an election again, we cannot say what the relevant circumstances of the election will be. The facts of this matter are not amenable to making an order under section 108(2)(b) ADA. Randwick City Council 112 At the beginning of the hearing two members of the Tribunal, Mr Rice and Ms Gill advised the parties that they are residents and rate payers of Randwick City Council, and invited the parties to consider whether to apply to ask them to disqualify themselves on the ground of the appearance of bias. The parties agreed to Mr Rice and Ms Gill continuing to sit as members of the Tribunal. 113 Mr Fittler says that Randwick City Council aided and abetted the Electoral Commission's unlawful discriminatory conduct because it paid for the election (cf section 52 ADA). 114 In submissions Mr Fittler says that "The issue for the Tribunal [under section 52 ADA] is whether [Randwick City Council]: a) knew or had reason to anticipate or to suspect that the particular act is to be or is likely to be done b) had the power to prevent it c) made default in some duty of control or interference arising under the circumstances of the case d) thereby fails to prevent the act. 115 Randwick City Council says that it had no control over the manner in which the Electoral Commission conducted the elections. Section 296 LGA relevantly provides in (1) that "the Electoral Commissioner is to conduct elections for the purposes of this Chapter". Section 296(6) requires the Electoral Commissioner to appoint the polling places, determine the fees payable to returning officers and electoral officials, and determine any matter not provided for by this Act or the regulations. 116 Mr David Kelly, Manager of Administrative Services at Randwick City Council, gave evidence that the Council took no part in the planning management or conduct of the election. The Council was required to co-operate with the Electoral Commission, for example in making premises available for polling booths. This evidence accords with our reading of sub-sections 296(1) and (6): Randwick City Council had no part in decisions concerning the election, such as whether and how to make ballot papers available in different formats. 117 Section 296(8) is unambiguous: "Expenses incurred by the Electoral Commissioner, returning officer, substitute returning officer and electoral officials in connection with an election are to be met by the council for which it is conducted and are recoverable from the council as a debt owed to the Electoral Commissioner as the holder of that office". Mr Kelly's evidence is that that is what happened in 2004, and that the cost to Randwick City Council was $251,076. 118 Accepting the appropriateness of the test proposed by Mr Fittler, the evidence satisfies us that the questions posed by Mr Fittler can answered this way: a) We assume that Randwick City Council, based on its experience of the manner in which elections were conducted, knew or had reason to anticipate or to suspect that the Electoral Commission would require Mr Fittler to vote privately by ink-print paper voting, although no evidence was led to on this issue b) Randwick City Council did not have the power to prevent the Electoral Commission acting as it did c) Randwick City Council did not have a duty of control or interference arising under the circumstances of the case d) Randwick City Council did not prevent the act but was under no duty to and had no power to. 119 We conclude that Randwick City Council did not aid and abet the Electoral Commission's unlawful discriminatory conduct, and the complaint against it is not substantiated. Costs 120 We are of the preliminary opinion that in this particular case there are no circumstances that justify our displacing the statutory presumption that each party will pay their own costs (section 110 ADA). We have however made an order enabling the parties to make application for costs if they wish. ORDERS 1. The complaint against the first respondent, the New South Wales Electoral Commission, is substantiated 2. The complaint against the second respondent, Randwick City Council, is not substantiated and is dismissed 3. The first respondent will pay the applicant $5,000 as compensation for damage he suffered by reason of the first respondent's conduct 4. Any application for costs will be filed and served within seven days of the date of publication of this decision, and any reply to such application will be filed and served within a further seven days.

Fittler v New South Wales Electoral Commission and anor

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