Freemantle v O'Neill

STATEMENT OF FACTS IN THE PETITION

1. On 17 July 2010 the Prime Minister announced a general election for the House of Representatives and a half Senate election in each of the States and Territories represented in the Senate.
2. On or about 17 July 2010 the Australian Electoral Commission [the AEC] and the Divisional Returning Officer for the electoral division of Robertson [the DRO] announced the following dates with respect to the election: a. The close of the Rolls b. Polling day - 21 August 2010 c. The last date for the return of the writs - 27 October 2010.
3. On 17 September 2010 the AEC certified on the writ for the election in Robertson the First Respondent as the candidate elected and returned the writ declaring the First Respondent as elected.
4. The return is disputed pursuant to Commonwealth Electoral Act 1918 [the Act] Part XXII on the grounds set forth below.
5. On 2 June 2010 the assistant electoral commissioner Ms Marie Neilson on behalf of the AEC and pursuant to section 184(1) of the Act revoked the previous approved form for postal vote applications made under Part XV of the Act form EF 048 1/1020 and made approved form EF 048 5/2010 which was duly gazetted in the Commonwealth Government Gazette No 23 of 2010 on 16 June 2010 [referred to as the approved form].
6. On 17 July 2010 the First Respondent by her servants or agents forwarded by post or hand delivery to every residence in the electoral division of Robertson with a view to electors in Robertson receiving reading and being influenced by electoral matter entitled "To the Householder": Particulars (a) Postal Voting Information for the electoral of Robertson marked with the Commonwealth Coat of Arms and described as "Important"; (b) A postal voting "Hotline" which gave as the telephone number the electorate office of the MHR for Robertson; (c) A simplified pictorial diagram of how to apply for a postal vote in 4 easy steps; (d) An adaptation of the approved form in duplicate; (e) Part of the form was perforated. [the whole is referred to as the adapted ALP form]
7. Delivered with each adapted ALP form was a pre-addressed pre-paid envelope containing the address of the federal electorate office of the MHR for Robertson [the envelope]. Invalid Votes/illegal practice
8. Between about 19 July 2010 and 19 August 2010 persons who had received the adapted ALP form influenced thereby apparently completed one of the duplicate sections of the form and then entrusted the application to the First Respondent by either forwarding the said section or the adapted ALP form to the electorate office of the MHR for Robertson in the envelope.
9. At the electorate office under the direction of the First Respondent or her servants or agents the ALP adapted form was removed from the envelope, the identity of the applicant recorded, and one portion of the duplicate section of the form removed by tearing the section from the ALP adapted form and collating same into a bundle.
10. Every few days after 19 July 2010 the First Respondent her servants or agents delivered that part of the adapted ALP form which contained one of the duplicate sections to the DRO [referred to as the altered ALP form] and thereby and purportedly on behalf of the applicants named on each altered ALP form applied for a postal vote in writing to the DRO.
11. Thereafter the DRO purportedly acting pursuant to the Act but without any authority under the Act issued to each applicant apparently applying for postal votes in the altered ALP form in the name of a person on the electoral roll for the division of Robertson, a certificate and ballot papers for the Senate and the electoral division of Robertson by posting to the address specified on the form or the address otherwise on the electoral roll the certificate and the ballot papers for the division and the Senate.
12. None of the applications for a postal vote in the adapted ALP form or in the altered ALP form was an application for a postal vote in the approved form to the DRO referred to in the Act section 184 or at all.
13. Each application made in the adapted ALP form or the altered ALP form was invalid and each vote cast be each applicant as a consequence of the application was invalid.
14. Further, some applicants after receiving the adapted ALP form delivered the form intact to the DRO and there had the application attested by a member of the staff of the DRO or in advance altered the form by removing the duplicate section of the said form before making the application, and in every such case the application was made by the applicant on the altered ALP form.
15. Each such application made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
16. Further, a number of the applications on the altered ALP form were not properly signed and witnessed. Particulars (a) Some of the applications appeared to have been written up by several different hands on different occasions; (b) Some of the applications did not identify the name or the address of the witness; (c) Some signatures of applicants were obscure or impossible of verification.
17. Each such application not properly signed or witnessed and made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
18. Further, none of the applications for a postal vote made by the applicants on the adapted ALP form or the altered ALP form contained a declaration duly attested that each applicant was an elector, whether in the division of Robertson or for the Senate of New South Wales or at all, as required by the Act section 184(1)(a).
19. Each application in the adapted ALP form or in the altered ALP form not containing such declaration was invalid and each vote cast by each applicant as a consequence of the application was invalid.
20. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said votes should have been excluded from the scrutiny and the count whereby this Honourable Court should order a recount excluding the said ballots or declare the election of the First Respondent void and/or the election in the division void. Interference in Political Liberty/ illegal practice
21. Further to the foregoing, the First and/or Second Respondent hindered or interfered with the free exercise or performance by the electors and the said applicants referred to in paragraph 8 of any political right or duty that is relevant to an election in contravention of the Act section 327(1), namely the right to vote and the duty to do so as prescribed by the Act. Particulars (a) The First Respondent represented to the householders and electors of Robertson that the adapted ALP form was an approved form of application for a postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material; (b) The First Respondent represented to the householders and electors of Robertson that the adapted ALP form was an effectual form of application for a valid postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material; (c) The First Respondent represented to the applicants for a postal vote receiving the ALP form that in the circumstances in which it was issued that the adapted ALP form was issued with the approval of the Commonwealth or was an official document in relation to postal voting and the election in Robertson or that the First Respondent was properly affiliated with or associated with the Commonwealth and/or the AEC which was in error and misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material; (d) The First Respondent represented to the applicants for a postal vote receiving the adapted ALP form that the First Respondent had the right to the use of the Commonwealth coat of arms which official marks were not approved for use by the First Respondent in the election campaign in Robertson by the grantor of the said coat of arms or by any protocol of the Commonwealth or at all such that the use of the said official marks and coat of arms was misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material; (e) The First Respondent represented to the householders and electors of Robertson that the information provided to electors by the "Voting Hotline" was as equally independent and informative and accurate as that of the AEC, which was confusing in the context of the electoral material and the misuse of the approved form in the adapted ALP form and which was in error and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material; (f) The First Respondent represented to the householders and electors of Robertson that the First Respondent was lawfully entitled to use the electorate office facilities as the First Respondent's campaign office and the office contact details and facilities as a 'Voting Hotline' and that the electoral material including the adapted ALP form and envelope were properly and lawfully funded publicly or paid for by the Commonwealth which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material; (g) The First Respondent represented to the householders and electors of Robertson that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Robertson's electorate office would be treated as if it were received by the AEC which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material. (h) The First Respondent misrepresented to the electors the grounds of eligibility for obtaining a postal vote and the entitlement to obtain a postal vote in the adapted ALP form. (i) As a consequence of each such representation and / or taken together the electors and applicants were hindered or interfered with the free exercise or performance of political right or duty relevant to the election.
22. It was the intention of the First Respondent in making each of the representations referred to in paragraph 21 to mislead or deceive the applicants using the adapted ALP form and thereby to affect the result in the electoral division of Robertson in the First Respondent's favour.
23. Further or alternatively to paragraph 21 in the period between the issue of the writ and polling day the First and/or Second Respondent caused or permitted to be printed electoral matter that is likely to mislead or deceive an elector in relation to the casting of a ballot in contravention of the Act section 329(1). Particulars The Petitioner repeats the particulars in paragraph 21.
24. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Robertson is void. Use of Entitlements Contrary to Law and Good Practice/ illegal practice
25. In contravention of the Act section 328, the First Respondent caused or authorised or permitted to be printed published and distributed the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice without the name and address of the person who authorised the advertisement handbill pamphlet or notice appearing at the end thereof.
26. In contravention of the Constitution sections 48 and 49 the First Respondent has used the allowance of the MHR for Robertson to cause or authorise or to permit to be printed published and distributed to the householders and the electors of Robertson the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice and used same in the election.
27. Further or alternatively to paragraph 26 any law or practice which purports to authorise or validate the expense of the saving of expense by the First Respondent in the campaign in respect of the electoral matter for the printing publishing or distribution of the said adapted ALP form is invalid as impairing the right to vote and /or the Constitution sections 48 and/or 49.
28. Further or alternatively the First and / or Second Respondent received a benefit namely the cost of printing the adapted ALP form and/or the use of the MHR for Lindsay's electorate office and 'Hotline' on the understanding that the First Respondent's opposition to the Petitioner as a candidate or all the other candidates in the election or the party of the Petitioner being the Christian Democrat Party or the party of the other party candidates in the election for Banks will in any manner be influenced or affected, in contravention of the Act section 326(1)(c). Particulars of influence or affectation a. The First and/or Second Respondent received the benefit knowing that the adapted ALP form and envelope forwarded at the commencement of the election period would influence electors favourably to the First Respondent's campaign for election; b. The electors of Robertson who received an apparently valid application form for a postal vote from or with the authority and consent of the First Respondent saving them the expense and trouble of obtaining an approved form from the DRO or downloading same from the internet site of the AEC together with a pre-paid envelope for the purpose of entrusting the application to the First Respondent were influenced or affected such that those using the adapted ALP form provided their names and addresses to the First Respondent thereby giving personal information, and preferred and exclusive access to such electors, to the First Respondent, and an opportunity to conduct a targeted campaign in relation to the votes of such persons to the exclusion of all other candidates and parties in the election; c. The Petitioner will refer to the ANOA Audit Report 2009-2010 'Administration of Parliamentarians Entitlements' and will apply to have produced to the Court documents and electoral matter in relation thereto.
29. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Robertson is void. Undue Influence
30. The Petitioner repeats paragraphs 21, 26, 27 and 28.
31. In the premises the First Respondent has committed or attempted to commit undue influence in the election, within the meaning of the Act sections 352(1) and 362(1).
32. The election of the First Respondent should be declared void pursuant to the Act section 362(1).

PROPOSED AMENDED STATEMENT OF FACTS

1. On 17 July 2010 the Prime Minister announced a general election for the House of Representatives and a half Senate election in each of the States and Territories represented in the Senate.
2. On or about 17 July 2010 the Australian Electoral Commission [the AEC] and the Divisional Returning Officer for the electoral division of Robertson [the DRO] announced the following dates with respect to the election: a. The close of the Rolls b. Polling day - 21 August 2010 c. The last date for the return of the writs - 27 October 2010.
3. On 17 September 2010 the AEC certified on the writ for the election in Robertson the First Respondent as the candidate elected and returned the writ declaring the First Respondent as elected. Particulars According to the AEC 'virtual tally room' the two candidate preferred result was O'Neill 37,681 votes and Jameson 35,429 votes a difference of 2,252
4. The return is disputed pursuant to Commonwealth Electoral Act 1918 [the Act] Part XXII on the grounds set forth below.
5. On 2 June 2010 the assistant electoral commissioner Ms Marie Neilson on behalf of the AEC and pursuant to section 184(1) of the Act revoked the previous approved form for postal vote applications made under Part XV of the Act form EF 048 1/1020 and made approved form EF 048 5/2010 which was duly gazetted in the Commonwealth Government Gazette No 23 of 2010 on 16 June 2010 [referred to as the approved form].
6. On 17 July 2010 the First Respondent by her servants or agents forwarded by post or hand delivery to every residence in the electoral division of Robertson with a view to electors in Robertson receiving reading and being influenced by electoral matter entitled "To the Householder": Particulars (a) Postal Voting Information for the electoral of Robertson marked with the Commonwealth Coat of Arms and described as "Important"; (b) A postal voting "Hotline" which gave as the telephone number the electorate office of the MHR for Robertson; (c) A simplified pictorial diagram of how to apply for a postal vote in 4 easy steps; (d) An adaptation of the approved form in duplicate; (e) Part of the form was perforated. [the whole is referred to as the adapted ALP form]
7. Delivered with each adapted ALP form was a pre-addressed pre-paid envelope containing the address of the Robertson Postal Voting Centre [the envelope]. Invalid Votes/illegal practice
8. Between about 19 July 2010 and 19 August 2010 2,427 persons who had received the adapted ALP form influenced thereby apparently completed one of the duplicate sections of the form and then entrusted the application to the First Respondent by either forwarding the said section or the adapted ALP form to the electorate office of the MHR for Robertson in the envelope.
9. At the electorate office under the direction of the First Respondent or her servants or agents the ALP adapted form was removed from the envelope, the identity of the applicant recorded, and one portion of the duplicate section of the form removed by tearing the section from the ALP adapted form and collating same into a bundle.
10. Every few days after 19 July 2010 the First Respondent her servants or agents delivered that part of the adapted ALP form which contained one of the duplicate sections to the DRO [referred to as the altered ALP form] and thereby and purportedly on behalf of the applicants named on each altered ALP form applied for a postal vote in writing to the DRO.
11. Thereafter the DRO purportedly acting pursuant to the Act but without any authority under the Act issued to each applicant apparently applying for postal votes in the altered ALP form in the name of a person on the electoral roll for the division of Robertson, a certificate and ballot papers for the Senate and the electoral division of Robertson by posting to the address specified on the form or the address otherwise on the electoral roll the certificate and the ballot papers for the division and the Senate.
12. None of the applications for a postal vote in the adapted ALP form or in the altered ALP form was an application for a postal vote in the approved form to the DRO referred to in the Act section 184 or at all. Particulars Neither the adapted ALP form nor the altered ALP form was the approved form nor was either in the approved form.
13. Each application made in the adapted ALP form or the altered ALP form was invalid and each vote cast be each applicant as a consequence of the application was invalid.
14. Further, some applicants after receiving the adapted ALP form delivered the form intact to the DRO and there had the application attested by a member of the staff of the DRO or in advance altered the form by removing the duplicate section of the said form before making the application, and in every such case the application was made by the applicant on the altered ALP form.
15. Each such application made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
16. Further, a number of the applications on the altered ALP form were not properly signed and witnessed. Particulars (a) Some of the applications appeared to have been written up by several different hands on different occasions; (b) Some of the applications did not identify the name or the address of the witness; (c) Some signatures of applicants were obscure or impossible of verification.
17. Each such application not properly signed or witnessed and made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid. Particulars There are about 40 votes cast as the consequence of postal vote applications not properly signed or witnessed
18. Further, none of the applications for a postal vote made by the applicants on the adapted ALP form or the altered ALP form contained a declaration duly attested that each applicant was an elector, whether in the division of Robertson or for the Senate of New South Wales or at all, as required by the Act section 184(1)(a).
19. Each application in the adapted ALP form or in the altered ALP form not containing such declaration was invalid and each vote cast by each applicant as a consequence of the application was invalid.
20. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said votes should have been excluded from the scrutiny and the count whereby this Honourable Court should order a recount excluding the said ballots or declare the election of the First Respondent void and/or the election in the division void. Particulars 2252 votes [the winning margin] is less than 2427 votes [the minimum number of invalid votes contended for herein] Interference in Political Liberty/ illegal practice
21. Further to the foregoing, the First and/or Second Respondent hindered or interfered with the free exercise or performance by the electors and the said applicants referred to in paragraph 8 of any political right or duty that is relevant to an election in contravention of the Act section 327(1), namely the right to vote and the duty to do so as prescribed by the Act. Particulars (a) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Robertson that the adapted ALP form was an approved form of application for a postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material; (b) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Robertson that the adapted ALP form was an effectual form of application for a valid postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material; (c) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the applicants for a postal vote receiving the ALP form that in the circumstances in which it was issued that the adapted ALP form was issued with the approval of the Commonwealth or was an official document in relation to postal voting and the election in Robertson or that the First Respondent was properly affiliated with or associated with the Commonwealth and/or the AEC which was in error and misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material; (d) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the applicants for a postal vote receiving the adapted ALP form that the First Respondent had the right to the use of the Commonwealth coat of arms which official marks were not approved for use by the First Respondent in the election campaign in Robertson by the grantor of the said coat of arms or by any protocol of the Commonwealth or at all such that the use of the said official marks and coat of arms was misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material; (e) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Robertson that the information provided to electors by the "Voting Hotline" was as equally independent and informative and accurate as that of the AEC, which was confusing in the context of the electoral material and the misuse of the approved form in the adapted ALP form and which was in error and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material; (f) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Robertson that the First Respondent was lawfully entitled to use the electorate office facilities as the First Respondent's campaign office and the office contact details and facilities as a 'Voting Hotline' and that the electoral material including the adapted ALP form and envelope were properly and lawfully funded publicly or paid for by the Commonwealth which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material; (g) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Robertson that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Robertson's electorate office would be treated as if it were received by the AEC which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material. (h) The First Respondent misrepresented on the date and in the document and by the means set out in paragraph 6 to the electors the grounds of eligibility for obtaining a postal vote and the entitlement to obtain a postal vote in the adapted ALP form. (i) As a consequence of each such representation and / or taken together the electors and applicants were hindered or interfered with the free exercise or performance of political right or duty relevant to the election in that each vote cast by the applicant electors using the adapted ALP form and the altered ALP form as set out in paragraphs 6 to 20 herein was invalid.
22. It was the intention of the First Respondent in making each of the representations referred to in paragraph 21 to mislead or deceive the applicants using the adapted ALP form and thereby to affect the result in the electoral division of Robertson in the First Respondent's favour.
23. Further or alternatively to paragraph 21 in the period between the issue of the writ and polling day the First and/or Second Respondent caused or permitted to be printed electoral matter that is likely to mislead or deceive an elector in relation to the casting of a ballot in contravention of the Act section 329(1). Particulars The Petitioner repeats the particulars in paragraph 21.
24. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Robertson is void. Particulars 2252 votes [the winning margin] is less than 2427 votes [the minimum number of invalid votes contended for herein] Use of Entitlements Contrary to Law and Good Practice/ illegal practice
25. In contravention of the Act section 328, the First Respondent caused or authorised or permitted to be printed published and distributed the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice without the name and address of the person who authorised the advertisement handbill pamphlet or notice appearing at the end thereof.
26. In contravention of the Constitution sections 48 and 49 the First Respondent has used the allowance of the MHR for Robertson to cause or authorise or to permit to be printed published and distributed to the householders and the electors of Robertson the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice and used same in the election.
27. Further or alternatively to paragraph 26 any law or practice which purports to authorise or validate the expense or the saving of expense by the First Respondent in the campaign in respect of the electoral matter for the printing publishing or distribution of the said adapted ALP form is invalid as impairing the right to vote and /or the Constitution sections 48 and/or 49. Particulars of Laws Parliamentary Allowances Act 1952 ss 4 and 5A; Parliamentary Entitlements Act 1990 ss 4 and 5; Remunerations Tribunal Act 1973 s 7 and the regulations thereunder permitting claims for the printing of the adapted ALP form for the purpose of re-election after the dissolution of the parliament
28. Further or alternatively the First and / or Second Respondent received a benefit namely the cost of printing the adapted ALP form and/or the use of the MHR for Robertson's electorate office and 'Hotline' on the understanding that the First Respondent's opposition to the Petitioner as a candidate or all the other candidates in the election or the party of the Petitioner being the Christian Democrat Party or the party of the other party candidates in the election for Banks will in any manner be influenced or affected, in contravention of the Act section 326(1)(c). Particulars of influence or affectation a. The First and/or Second Respondent received the benefit knowing that the adapted ALP form and envelope forwarded at the commencement of the election period would influence electors favourably to the First Respondent's campaign for election; b. The electors of Robertson who received an apparently valid application form for a postal vote from or with the authority and consent of the First Respondent saving them the expense and trouble of obtaining an approved form from the DRO or downloading same from the internet site of the AEC together with a pre-paid envelope for the purpose of entrusting the application to the First Respondent were influenced or affected such that those using the adapted ALP form provided their names and addresses to the First Respondent thereby giving personal information, and preferred and exclusive access to such electors, to the First Respondent, and an opportunity to conduct a targeted campaign in relation to the votes of such persons to the exclusion of all other candidates and parties in the election; c. The Petitioner will refer to the ANOA Audit Report 2009-2010 'Administration of Parliamentarians Entitlements' and will apply to have produced to the Court documents and electoral matter in relation thereto.
29. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Robertson is void. Particulars 2252 votes [the winning margin] is less than 2427 votes [the minimum number of invalid votes contended for herein] Undue Influence
30. The Petitioner repeats paragraphs 21, 26, 27 and 28.
31. In the premises the First Respondent has committed or attempted to commit undue influence in the election, within the meaning of the Act sections 352(1) and 362(1).
32. The election of the First Respondent should be declared void pursuant to the Act section 362(1).