Free v Kelly

4. The first respondent pay two-thirds of the petitioner's costs.

Brennan CJ delivered the following written judgment: -

Writs for a general election of members of the House of Representatives were issued on 29 January 1996. The writ relating to the election of members for Electoral Divisions within New South Wales specified 9 February 1996 as the date for the nomination of candidates. The registered officer of the Liberal Party of Australia, New South Wales Division, nominated Ms Kelly (the first respondent) for the Division of Lindsay. That nomination was lodged on 2 February 1996. At the time of her nomination, Ms Kelly was an officer of the Royal Australian Air Force. At her request, she was transferred to the RAAF Reserve on 17 February 1996.

There were seven candidates who nominated for election for the Division of Lindsay and whose names appeared on the ballot-paper. The poll was held on 2 March 1996. No candidate received an absolute majority of first preference votes. Accordingly, the preferences were distributed among the candidates in accordance with s 274(7)(d) of the Commonwealth Electoral Act 1918 Cth (the Act). After the distribution of final preferences, Ms Kelly had a total of 38,442 votes and Mr Free had a total of 36,088 votes. Ms Kelly with an absolute majority of the votes at that stage was declared to be elected. On 1 April 1996 the Electoral Commissioner certified on the writ that Ms Kelly had been duly elected as the member for the Division of Lindsay and returned the writ so endorsed to the Governor-General.

By a petition addressed to the Court of Disputed Returns pursuant to s 353(1), Mr Free challenged the validity of the election of Ms Kelly as a member of the House of Representatives for the Division of Lindsay. The challenge was based on s 44(i) and (iv) of the Constitution. The former basis of challenge, an allegation that the first respondent held at the time of her nomination dual citizenship as an Australian and New Zealand citizen, was not pursued at the trial of the petition. But it is now common ground that, by reason of s 44(iv) of the Constitution, Ms Kelly was incapable of being chosen as a member of the House of Representatives while serving as an officer of the RAAF at the time of her nomination as a candidate. That is the relevant time for determining whether a person is incapable of being chosen on any of the grounds specified in s 44 of the Constitution [1] . As Ms Kelly was incapable of being chosen as a member of the House of Representatives, an appropriate declaration of incapacity must be made.

The substantial issue between the parties is whether the election should be declared absolutely void or whether an order should be made directing a special count of the ballot-papers in the poll. Counsel for Mr Free seeks an order directing the counting of the ballot-papers which gave first preference votes to Ms Kelly to the candidate next in order of the voters' preference, followed by a counting of the ballot-papers in accordance with par (d) of s 274(7) of the Act. If such an order be made, the candidate who receives an absolute majority of votes after the counting of the ballot-papers in accordance with par (d) would be declared elected as the member for the Division of Lindsay.

In support of his application for an order for a special count, Mr Free points to the order for a special count made in In re Wood [2] . That case related to the election as a Senator of a person who, by reason of s 44(i) of the Constitution, was incapable of being elected as a Senator. In that case, the Court said [3] :

The purpose of the poll is to choose in accordance with the Act the preferred candidates who are qualified to be chosen, but no effect can be given for the purpose of the poll to the placing of a figure against the name of a candidate who is not qualified to be chosen: an indication of a voter's preference for an unqualified candidate is a nullity. That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s 16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter's expressed intention. Some reliance is also placed on an observation later in the judgment in In re Wood [4] where the Court said: The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. Applying these propositions to the present case, counsel for Mr Free submits that the votes cast by the electors were valid and that the ballot-papers are nullities only in so far as they gave a first preference vote to Ms Kelly. In the case of the ballot-papers in which a first preference vote was given for Ms Kelly, the votes are valid to the extent that they give second and subsequent preferences to other candidates who were qualified to be chosen. Ms Kelly's incapacity, it is said, precludes her from being chosen but it does not avoid the election which can be completed by a special count resulting in the choosing of a candidate who is capable of being chosen. Counsel for Mr Free points out that 57.48 per cent of the ballot-papers included in the scrutiny gave first preference votes to qualified candidates. It is submitted that a special count would permit effect to be given to the intentions of the majority of the electors. Moreover, it is said, if such an order be made, the election of a candidate who is not a member of Ms Kelly's party would be a dramatic warning to all political parties of the risk of nominating candidates who are not capable of being chosen as members of the House of Representatives. And a special count would avoid the cost of a new election pursuant to s 374(iii). 1. (1988) 167 CLR 145 at 175. 2. In re Wood (1988) 167 CLR 145 at 165-166. 3. (1988) 167 CLR 145 at 167.

These submissions focus of the validity of the ballot-papers included in the scrutiny, none of which is under challenge but all of which must have attributed either the first or some subsequent preference to Ms Kelly. But the relief to be granted in the case of a purported election to membership of the House of Representatives of a person who is incapable of being chosen as a member does not depend upon the validity of the votes cast nor simply on the preferences expressed for those candidates who are eligible to be chosen.

In re Wood was decided on a reference to determine the qualification of Mr Wood to sit as a Senator after a Senate election conducted under scrutiny provisions of the Act that are calculated "to reflect the proportionate support of the electors for the respective political parties or groups from which the candidates for election are drawn" [5] . In re Wood was considered in Sykes v Cleary [6] , where the Court was considering the different scrutiny provisions relating to an election for a Division in the House of Representatives. Mason CJ, Toohey and McHugh JJ in a judgment [7] agreed to by Dawson J [8] , Gaudron J [9] and me [10] , distinguished the circumstances in In re Wood. Their Honours said [11] :

In these circumstances, the situation in In re Wood was such as to warrant the conclusion that the special count would reflect the voters' "true legal intent" [12] . Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case. Here a special count could result in a distortion of the voters' real intentions because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent. The principle to be derived from both cases is that an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters' true legal intent or, conversely, would not result in a distortion of the voters' real intentions [13] . In In re Wood, the Court was satisfied that a special count would reflect the voters' true intentions but in Sykes v Cleary, no special count could be ordered "because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent". In other words, if the name of the disqualified Mr Cleary had not appeared on the ballot-paper, the voters' preferences might have been differently expressed. 1. In re Wood (1988) 167 CLR 145 at 165. 2. (1992) 176 CLR 77. 3. Sykes v Cleary (1992) 176 CLR 77 at 101-102. 4. Sykes v Cleary (1992) 176 CLR 77 at 130-131. 5. Sykes v Cleary (1992) 176 CLR 77 at 132. 6. Sykes v Cleary (1992) 176 CLR 77 at 108. 7. Sykes v Cleary (1992) 176 CLR 77 at 102. 8. In re Wood (1988) 167 CLR 145 at 165-166. 9. Sykes v Cleary (1992) 176 CLR 77 at 102.

A similar observation can be made in the present case. Ms Kelly and Mr Free were by far the candidates who attracted the greatest number of first preference votes. If Ms Kelly's first preference ballot-papers were to be distributed so as to be counted to the candidate next in order of the voters' preferences, the order of exclusion of the less-favoured candidates under par (d) of s 274(7) might well have been altered. That alteration might have affected the identity of the candidate last remaining after the distribution of preferences. In other words, it is impossible to predicate of the election that the person who might be selected on a special count would have been chosen had Ms Kelly not been nominated as a candidate. There is a substantial possibility that a special count would distort the voters' intentions. Indeed, there is much to be said for the view, submitted by counsel for the Australian Electoral Commission, that, if the candidate who is returned as an elected member proves to have been incapable of being chosen, the election is necessarily void and a new election must be held. That may be too broad a proposition, at least where there are only two candidates standing and the facts which establish the incapacity of the one chosen are known to the electors at the time of the poll [14] .

1. See In re Parliamentary Election for Bristol South East [1964] 2 QB 257 at 291-301.

In my view the election in which Ms Kelly was declared elected was absolutely void. Accordingly, a declaration must be made pursuant to s 360(1)(vii) of the Act. The consequence is that a new election for the Division of Lindsay will be held pursuant to s 374(iii).

There remains the question of costs. An order for the petitioner's costs as against the first respondent must be made. It was by reason of her nomination when she was incapable of being chosen that the proceedings have been brought and the election avoided. However, on the trial of the petition on 5 September 1996, the only issue remaining in dispute between the parties was the order to be made consequent on the declaration of the first respondent's incapacity to be chosen. On that issue, the petitioner has failed. The first respondent seeks an order for costs against him in respect of the proceedings on 5 September and seeks to have those costs set off against the order that must be made in favour of the petitioner in respect of the general costs of the petition. I agree that in principle the first respondent is entitled to costs in respect of that issue. However, although the actual costs incurred on 5 September might be greater than the costs incurred in respect of each of the earlier appearances on the directions hearings, I must take into account the failure of the first respondent prior to the trial of the petition to admit her incapacity to be chosen. That failure must have increased the overall costs of the proceedings. In these circumstances, the appropriate and simplest order to make as to costs as between the petitioner and the first respondent is that the petitioner recover two-thirds of his costs.

To the extent to which the petitioner fails to recover all his costs against the first respondent, he seeks an order against the Commonwealth under s 360(4) of the Act. I do not propose to make any order under that provision. The petitioner has unsuccessfully pursued a submission that a special count be ordered. The argument in support of this submission was far from persuasive and the attempt to rely on the propositions in In re Wood had already been disposed of by the judgment in Sykes v Cleary. Even if a wide view be taken of the discretionary power conferred by s 360(4) [15] , there is no warrant for the making of any order for costs under that sub-section.

1. See Nile v Wood (1988) 167 CLR 133 at 142, 143; Hudson v Lee (1993) 177 CLR 627 at 633-634; Webster v Deahm (unreported; HC of A (Gaudron J); 20 June 1996) at 4.

The Australian Electoral Commission seeks an order for its costs against the first respondent in respect of the costs incurred before she conceded that a new election was appropriate and against the petitioner in respect of the costs generally. Counsel for the Commission points to the provisions of s 359 of the Act which deem the Commission when it is represented and heard on a petition to be "a party respondent" to the petition. It is thus, in a sense, a successful party: its submissions have largely been accepted. However, an order for costs should depend not on the deemed status of the Commission as a party but on the function which the Commission performs in being represented and heard on the trial of a petition.

The Commission may be represented and heard under s 359 in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function [16] in the public interest. The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings. Being incidental to the proper performance of its statutory functions, the cost of being represented and heard ought properly to be borne as a cost of the Commission's administration. This is such a case. Expressing, as I do, appreciation of the considerable assistance that the Commission offered - not least in the preparation of an agreed statement of facts - it is appropriate to make no order with respect to the costs of the Commission.

1. The Commission's functions are those "permitted or required to be performed by or under this Act": s 7(1)(a).