Hansen v Australian Electoral Commission

statutory background 5 For the purposes of the ATSIC Act, Australia (excluding the Torres Strait area) is divided into 35 regions (s 91(1)). The regional boundaries are determined from time to time by the Minister in writing (s 91(1)(b)). There is a Regional Council for each region (s 92). Each Council has the functions set out in s 94 of the ATSIC Act, including representing Aboriginal and Torres Strait Islander residents of the region and acting as an advocate of their interests (s 94(1)(e)). 6 The ATSIC Act further groups the regions into zones (s 130(1)). Members of the Regional Councils included in a zone elect one of their number to represent the zone on the Aboriginal and Torres Strait Islander Commission (s 27 and s 131). 7 Division 4 of Part 3 of the ATSIC Act provides for Regional Council elections which are to be conducted by the AEC in accordance with the ATSIC Act and the Regional Council election rules in force at the beginning of the election period (see below). Pursuant to s 101 of the ATSIC Act, a person is entitled to vote at a Regional Council ward election if and only if the person is an Aboriginal person or a Torres Strait Islander and is either on the Commonwealth Electoral Roll and shown on the Roll as living within the ward or is entitled to vote at the election pursuant to rules made under subs 113(3). Polling places within each Regional Council ward are appointed by the Electoral Commissioner. Voting at Regional Council elections is not compulsory (s 108) and is by secret ballot (s 109). The method of voting is set out in s 110 of the ATSIC Act. Subsection 110(2) provides that a ballot paper is formal if and only if: (a) the authorised electoral officer is satisfied that it is an authentic ballot paper; (b) it indicates the voter's first preference for one, and only one, candidate; and (c) it does not have upon it any identifying mark. After consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, the Minister may make rules ("the rules"), not inconsistent with the ATSIC Act, prescribing the manner in which Regional Council elections are to be conducted (s 113(1)(a)). The rules may provide for the division of a region into wards, set out the boundaries and designate the number of Regional Council members for each ward (subs 100A(1) and (3)). Regional Council election rules have been made pursuant to the ATSIC Act. I refer to those that are relevant to this proceeding in the discussion that follows. 8 Division 8 of Part 3 deals with disputed elections. Its sole division, s 140, provides: The provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election, a TSRA election or a zone election. The effect of subcl 2(1) and (2) of Schedule 4 is that the validity of any election, or of the declaration of a poll for election, may only be disputed by a petition addressed to this Court, which has jurisdiction to try the petition. The jurisdiction is exercisable by a single judge. By cl 1(1), "election" is defined to mean a Regional Council election, a TSRA election or a zone election. The requisites of an election petition are set out in cl 3, which provides: Subject to clause 5, every election petition shall: (a) set out the facts relied on to invalidate the election or declaration; (b) contain a request for the relief the petitioner claims to be entitled to; (c) be signed by a candidate at the election in dispute or by a person who was, or who claimed to be, qualified to vote at that election; (d) be attested by 2 witnesses whose occupations and addresses are stated. The deadline for filing a petition is stated in cl 3A as follows: (1) Any petition disputing an election held as part of a general election must be filed in a Registry of the Court within 40 days after the last day on which a poll is declared in relation to the general election. (2) Any petition disputing any other election must be filed in a Registry of the Court within 40 days after the poll is declared in relation to the election. (3) In this clause: general election means: (a) a round of Regional Council elections; or (b) a round of zone elections; or (c) a TSRA election for all wards. Clause 6 states that no proceeding shall be had on an election petition unless the requirements of clauses 3, 3A, 4 and 5 are met. (Clauses 4 and 5 are not presently relevant.) 9 The powers of the Court are the subject of cl 10, which relevantly provides: (1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers: … (e) to declare that any person who was returned was not duly elected; (f) to declare any candidate duly elected who was not returned; (g)to declare the election absolutely void; (h)to dismiss or uphold the petition in whole or in part; … (2) The Court may exercise all or any of its powers under this clause on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this clause, it is hereby declared that the power of the Court to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election. Clause 23 stipulates that the Court "shall be guided by the substantial merits and good conscience of each case". 10 Clause 12 explains the effect of an illegal practice on an election. The term "illegal practice" is defined in cl 1(1) to mean "a contravention of this Act, the Regional Council election rules, the TSRA election rules or the zone election rules". Clause 12 provides: (1) If the Court finds that a candidate at an election has committed or has attempted to commit bribery or undue influence, the candidate's election, if he or she is a successful candidate, shall be declared void. (2) No finding by the Court shall bar or prejudice any prosecution for any illegal practice. (3) The Court shall not declare that any person returned was not duly elected, or declare any election void; (a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or (b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption; unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. Clause 14 concerns the effect of immaterial errors. It provides as follows: (1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of the poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election. (2) Where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election.

general observations 11 The Court cannot try a petition addressed to it under cl 2 of Schedule 4 of the ATSIC Act unless the requirements of clauses 3, 3A, 4 (pursuant to which the petitioner must deposit $100 with the Court as security for costs) and, where applicable, 5 are met: Schedule 4, cl 6. The Court has no power to dispense with the need for compliance. A petition disputing a Regional Council election must be filed within the forty-day period stipulated in cl 3A, and the petition cannot be amended outside that period: see Whitby v Garlett [2000] FCA 245, [16-19], referring to Rudolphy v Lightfoot (1999) 167 ALR 105 at 107 and Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648, discussing virtually identical provisions in the Commonwealth Electoral Act 1918 ("the Electoral Act"); see also Nile v Wood (1988) 167 CLR 133 at 137. 12 If a petition fails to comply with cl 3(a), then it is incompetent and liable as such to be dismissed. The facts that cl 3(a) requires to be set out are "the essential facts from which, if proved, it might be concluded that the election … was invalid": Sykes at 648, discussing s 355(a) of the Electoral Act which is virtually identical to cl 3(a) of Schedule 4. In Sykes at 649, Dawson J said: The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity. See also Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409, Cole v Lacey (1964) 112 CLR 45 at 51 and Nile v Wood at 138. 13 If the facts relied on by a petitioner would, if established, constitute an "illegal practice" within the meaning of cl 1(1), then cl 12 applies. Clause 12 prevails over cl 14 if it too would otherwise be applicable: Sykes at 652, discussing ss 362(3) and 365 of the Electoral Act which are, for practical purposes, the same as cl 12(3) and cl 14(1); Pettit v Atkinson (1994) 50 FCR 174 at 179; and Whitby v Garlett at [22]. If the facts would, if established, fall within cl 12(3)(a) or (b), then the petitioner must set out facts which, if proved, could satisfy the Court that the result of the election was likely to be affected. That is, by virtue of cl 3(a), the petitioner must set out the material facts upon which he relies to establish this likelihood. As French J observed in Whitby v Garrett at [20]: Positive satisfaction in that regard is a condition of [the Court's] power to invalidate the election. Absent a statement of facts which, if established, would permit the Court to have that positive satisfaction, then the petition is incompetent. Additionally, if cl 12(3) applies, the petition must set out sufficient facts to satisfy the Court that it is just to declare the election void. 14 Clause 14, headed "Immaterial errors not to vitiate election", precludes the Court from declaring an election void on account of an error of, or omission by, an officer which did not affect the result of the election. If a petition sets out facts to which cl 14, and not cl 12, would apply, then the petition is not incompetent because it fails to set out facts showing that the error or omission affected or was likely to affect the result of the election. It is sufficient (at least for pleading purposes) that the facts set out would, if established, show that the error or omission may have affected the result. If the facts are established at trial, the Court may declare the election invalid: see Cole v Lacey at 48-49, referring to Kean v Kerby (1920) 27 CLR 449 at 458 per Isaccs J; and Whitby v Garlett at [21-22].

ground one - polling booth failed to display photos of candidates 15 It is common ground that, by par 1 of the petition, the petitioner alleges a breach of r 27(1)(b) of the rules and the commission of an "illegal practice" within the meaning of cl 1(1) of Schedule 4 of the ATSIC Act. The parties agree that the reference to r 78(1) in par 1 of the petition ought to be a reference to r 27(1). The respondent does not, however, seek to make anything of this mistake. Instead, it submits that the facts set out in par 1 of the petition are incapable of supporting a finding that there was a breach of r 27(1)(b) on polling day at the Moama North polling booth. This is because, so the respondent says, the polling booth was in the Wagga Wagga Region and not in the Tumbukka Region. The petitioner does not dispute this fact. He submits that the obligation created by r 27(1)(b) required the Regional Returning Officer ("the RRO") for Tumbukka to arrange for the petitioner's photograph to be displayed at all places where voting for him (and other candidates at the election) could take place. That is, according to him, the obligation extended to the polling booth at Moama North and any other place, whether in or out of the Tumbukka Region, where an elector was entitled to vote by virtue of r 67(1). 16 Rule 27(1) provides, relevantly, that: (1) Where a candidate provides a photograph of himself or herself to the Regional Returning Officer within 7 days after the day of nomination, the Regional Returning Officer must: … (b) arrange for copies of the photograph to be displayed during the time voting is in progress at all places in the region where voting takes place. Rule 27 applies where a candidate provides his or her photograph to the RRO for the region in which the election for which he is a candidate is to be held: cf r 2(2) and r 5 of the rules. That is, in this case, assuming the petitioner provided his photograph to the RRO for Tumbukka Region within the stipulated time, the RRO was required to "arrange for copies of the photograph to be displayed … at all places in the region where voting takes place" (emphasis added). The use of the definite article makes it plain that the region with which the rule is concerned is the region for which the RRO is responsible and in which the candidate is standing for election. In the petitioner's case, this was the Tumbukka Region, and not the Wagga Wagga Region. There was, therefore, no requirement that the petitioner's photograph be displayed at the polling booth at Moama North. On the facts set out in par 1 of the petition, there could be no breach of r 27(1)(b). This part of the petition must be dismissed.

ground two - conflict of interests 17 The petitioner abandoned reliance on ground two of the petition. This part of the petition must also be dismissed.

ground three - insensitive polling staff discouraged participation 18 The claim made in par 3 of the petition is that polling booth officials were rude in determining the Aboriginality of potential voters and, in particular, the liaison officers carried out this task "insensitively and discouraged participation in the election". The further statement, in par 3, that "The petitioner knows of people who did not vote for this reason." confirms that the petitioner's case is that, by reason of the liaison officers' conduct, eligible electors who would otherwise have voted at the Moama North polling booth did not cast their vote. The respondent submits that, in par 3 of the petition, the petitioner alleges facts that, to adopt the language of French J in Whitby v Garlett at [22], are "capable of characterisation as disclosing an illegal practice", namely, contravention of r 107 of the rules. If this is so, then ground three falls within cl 12(3) of Schedule 4 and, in consequence, the petition must set out sufficient facts to show that the election result was likely to be affected.

19 Rule 107 provides as follows: A person must not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under these Rules. Penalty: $1,000. The rule is concerned with acts that hinder or interfere with the free exercise or performance of a political right or duty that is relevant to a Regional Council election. I note that, as the respondent points out, under the rules, the occasion for liaison officers to decide whether voters are Aboriginal persons or Torres Strait Islanders does not arise until after the voters have marked their votes on the ballot-papers and sealed them in voter card envelopes: see rules 77 and 78. Voters place the envelopes in the ballot boxes after the liaison officer determines their claims to be Aboriginal persons or Torres Strait Islanders. 20 Be this as it may, the right of an eligible voter to cast a vote at a Regional Council election is a political right. The allegation, in par 3 of the petition, that the conduct of liaison officers at the Moama North polling booth was such as to discourage eligible voters from voting entails an allegation that those officers hindered the free exercise of a political right in relation to a relevant election. Accordingly, by virtue of the definition of "illegal practice" in cl 1(1) of Schedule 4, par 3 of the petition can be said to allege the commission of an "illegal practice" by a person other than a candidate as a ground for declaring the election void. The matter thus falls within cl 12(3)(a) of Schedule 4 and, in order to comply with cl 3(a), the petition must set out facts which, if established, would show that the result of the election was likely to be affected. 21 In connection with this and the other grounds discussed below, the petitioner relies on Yarran v Blurton (1992) 35 FCR 485 for the proposition that there might be a complaint that fell outside both cl 12(3) and cl 14. Assuming (for present purposes) that that proposition is correct, Yarran v Blurton does not assist the petitioner. In that case, French J held that the AEC had failed to provide a secret ballot as required by the ATSIC Act by reason of an aspect of the system for voting adopted by it for all Regional Council elections. That is, there was a systemic failure to comply with the statutory requirement "in a fundamental respect": 35 FCR at 502. That is plainly not this case, which concerns alleged errors at a single polling booth outside the relevant region. The alleged errors were neither systematic nor fundamental. 22 It may be, as counsel for the petitioner submits, that if charges were laid under r 107 and the matter proceeded to trial, then an issue as to the accused's intention would arise. It is true that the petition makes no specific allegation that there was an intentional breach; indeed, it does not even identify which person may have committed the error. This does not, however, remove the allegations in ground three from the ambit of the definition of "illegal practice" in cl 1(1) of Schedule 4 of the ATSIC Act. Whether an "illegal practice" has occurred depends upon whether there has been a "contravention" of the Act or the relevant rules, i.e., whether what has been done (or allegedly done) is something forbidden by the Act or the rules. This inquiry is separate and distinct from the question of whether an accused person has committed a criminal offence under the Act or the rules. These considerations underlie the observation of Merkel J in Shaw v Wolf (1998) 83 FCR 113 at 133 that: It is quite clear that a finding that the Act has been contravened by a person does not require that there be any intent to commit a breach, nor is any question of moral turpitude involved: see Wasaga v Tahal (1991) 33 FCR 438 at 447-448and Pettit v Atkinson at 179-180. In a similar vein, Gray J found in Pettit that an illegal practice had occurred, notwithstanding that the candidate's mistake was explicable and lacked any element of criminal culpability. This is also consonant with Dawson J's observations in Sykes at 652. In short, there may be a "contravention" of rule 107 (within the meaning of the definition of "illegal practice" in cl 1(1)) where there is an unintentional hindering or interfering with the free exercise of another's political right in relation to a relevant election, even though this conduct would not give rise to criminal liability. Unless the Act or the rule specifies state of mind as an element of the forbidden conduct, an "illegal practice" for the purposes of Schedule 4 of the ATSIC Act will be objectively ascertainable without reference to any particular person's knowledge or intention. 23 As I have said, the petition stated that "The petitioner knows of people who did not vote for this [par 3] reason". I accept, as the petitioner submits, that this was tantamount to saying "There are people who did not vote for this [par 3] reason". This is not, however, sufficient to satisfy cl 3(a), having regard to cl 12(3). 24 The petition did not, for example, state (1) how many eligible and intending voters failed to vote on account of the conduct of liaison or other officers; or (2) how many candidates there were for election and what was the distribution of the votes and the winning margins. Nor did the petition discriminate between eligible intending voters who were deterred from voting in the Wagga Wagga Regional Council election, the Tumbukka Regional Council election (with which the petition is concerned), and any other Regional Council elections. Had a statement of facts concerning some or all of these matters been included in the petition, the requirement of cl 3(a) may have been satisfied. As it was, the petition did not set out facts sufficient to show that the result of the election was likely to be affected by reason of the alleged illegal practice. 25 In connection with grounds three, four and five, counsel for the petitioner also submits that the Court ought to consider the gravity of the matters alleged in the petition collectively. Considered in this way, the petition, so he says, sets out plainly enough the facts which, if established, show that the result of the election was likely to be affected by reason of circumstances at the Moama North polling booth on polling day. I deal with this submission towards the end of these reasons.

ground four - polling booth closed due to running out of ballot slips 26 By par 4 of the petition, the petitioner alleges that the polling booth was "shut down at 2pm", because "the booth ran out of ballots". The respondent submits that this claim entails an alleged breach of r 66(1)(b) of the rules, which states that: the poll must open at 8.00 o'clock in the morning and must not close until all electors present in the polling booth at 6.00 o'clock in the afternoon and desiring to vote, have voted. It is plain enough that par 4 of the petition contains an allegation that this rule was breached. 27 The petitioner seeks to avoid this conclusion by a submission that "the real or operating complaint" in par 4 is that this booth ran out of ballot slips, or that, having run out of slips, the liaison officer failed to photocopy new slips. Even if it were open to characterise the complaint in par 4 in this way, I doubt that the petitioner would avoid the conclusion that par 4 entails an allegation that there was a breach (or breaches) of the rules. The alleged failure to respond properly to an unexpected shortage of ballot slips carries the necessary implication, if the error is said to be capable of affecting the election result, that some eligible and intending voters were not provided with ballot slips. In the circumstances of this poll, r 54(1)(b) required the RRO to "make all necessary arrangements for taking the poll" and, in particular, to "provide ballot-papers and all necessary forms, envelopes and materials". If the complaint in par 4 is read as the petitioner would have it, then the complaint may still amount to an alleged contravention of r 54(1)(b). 28 Be this as it may, the correct view of par 4 is, I think, that it alleges two defaults: (1) the closure of the booth prior to 6.00pm on polling day and (2) the failure to provide ballot-papers for eligible voters desiring to vote. Accordingly, par 4 contains either one alleged breach or two alleged breaches of the rules. Either way, cl 12(3)(a) of Schedule 4 is applicable. 29 By virtue of cl 3(a), the petition is incompetent if it fails to set out facts which, if established, show that the result of the election was likely to be affected. Unless the collectivity of the complaints made saves the petition, it plainly fails to set out sufficient facts in this regard. The petition does not state whether any, and if so, how many eligible voters desiring to vote at the election failed to vote on account of the closure of the booth or the failure to provide ballot-papers. Nor, as I have already said, did it set out any facts as to the number of candidates, the number of eligible electors, the distribution of the votes and the winning margins. Unless saved by the collectivity of the complaints, par 4 should be dismissed.

ground five - misleading sign placed on polling booth 30 The petition, in par 5, alleges that when the polling booth was closed, someone put up "a small sign in blue texta … directing potential voters to the YMCA in Echuca" but there was no polling booth at that place. The respondent submits that the facts set out in par 5 are capable of characterisation as a breach of r 111 of the rules and, accordingly, as an illegal practice within the meaning of cl 1(1) of Schedule 4. Rule 111(1) provides as follows: A person must not, during the relevant period in relation to an election under these Rules, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of his or her vote. The petitioner relied in part on subrule 111(4) which reads: In a prosecution of a person for an offence against subrule (3) by virtue of a contravention of subrule (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known that the matter or thing was likely to mislead an elector in relation to the casting of his or her vote. In Evans v Crichton-Browne (1981) 147 CLR 169 at 204, the High Court said of s 161(e) of the Electoral Act (similar in terms to r 111(1)) that: The phrase 'cast a vote' has a well defined meaning - 'to deposit (a voting paper or ticket); to give (a vote)' (Oxford English Dictionary) 'to deposit (a ballot) formally or officially; give a vote' (Websters International Dictionary). It does not include 'to decide for whom to vote'. The use of this phrase in s 161(e) suggests that the Parliament is concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment. By way of example, the Court referred, at 205, to the following: An erroneous statement as to the hours or place of polling which had the result that an elector (perhaps in a remote country district) failed to get to a polling booth in time to vote would have misled that elector in relation to the casting of his vote, although it would have not misled him in casting his vote, since in the case imagined no vote was cast. Bearing in mind these observations, the allegation in par 5 is plainly capable of characterisation as an illegal practice. It is an allegation that, because of the closure of a polling booth on polling day prior to the authorised time, a person put out a sign in front of the booth directing eligible voters desirous of casting their vote to a place that would be understood by them as another booth where they might cast their vote when in fact it was not such a place at all. 31 It may well be, as the petitioner submits, that the accused's intention would be relevant at trial and that an accused may rely on subrule 111(4) as a defence. It may be true that, as the petitioner says, r 111 is concerned with what a person must not do, whereas the petition is concerned with the fact of the display of a misleading sign. This observation is, it seems to me, beside the point. The fact is that someone must have put out the allegedly misleading sign with which par 5 is concerned. The petition, in par 5, necessarily involves an allegation that someone breached r 111; whether that person may have a valid defence is irrelevant. As we have seen, the doing of a prohibited act, though devoid of criminal intent, may constitute an illegal practice as defined in cl 1(1). 32 The complaint in par 5 is thus one to which cl 12(3) applies and, to avoid incompentency, the petition must set out the facts upon which the operation of that clause depends. The petition fails in this regard. It does not state, in this paragraph or elsewhere, how many eligible voters desirous of voting at the election for the Tumbukka Regional Council failed to cast their vote because they were misled by the sign. Nor, as I have said, does the petition set out any other facts (for example, as to the number of candidates who stood for the election, the distribution of the votes in the election, or the winning margins) that would enable the Court to find that the result of the election was likely to be affected. 33 I turn to the contention advanced by the petitioner that the Court should consider collectively the gravity of the complaints about the conduct of polling at the Moama North polling booth in deciding whether the petition satisfied cl 3(a). According to the petition, the polling booth was in "the pavilion of the recreation reserve clubhouse" at Moama, a small town near Echuca. On polling day, according to the petition, "[s]ome 3,000 Aboriginal and Torres Strait people" were attending a football carnival in the reserve. The petition stated that 20 to 50 primary votes were needed "to win a place on the Tumbukka Council". Further, as the petitioner points out, there were at least two categories of complaint, namely, (1) complaints affecting eligible voters desirous of voting before the booth closed at 2.00pm; and (2) complaints affecting eligible voters who sought to vote after 2.00pm. But even if there was, as the petition indicates, more than one such voter affected in each category, neither that fact nor the others set out in the petition establish that the result of the election was likely to be affected by the complaints, even when considered collectively (and assumed to be true). 34 It must be borne in mind that the polling booth was not in the Tumbukka Region, even though close to it. There is no rational basis indicated in the petition for determining how many of the crowd of 3,000 were eligible and desirous of voting and, in particular, eligible and desirous of voting in the election for the Tumbukka Regional Council and not for some other Council. Having regard to these considerations and the other matters previously mentioned, I am satisfied that, notwithstanding the best efforts of counsel for the petitioner, there are insufficient facts set out in the petition to meet the requirements of cl 3(a) of Schedule 4. Accordingly, the petition is incompetent and ought to be dismissed. I propose to give the parties an opportunity to be heard further on the question of costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Solicitor for the Petitioner: Victorian Aboriginal Legal Service

Solicitor for the Respondent: Australian Government Solicitor