Horn v Australian Electoral Commission

REASONS FOR JUDGMENT 1 On 19 October 2004 the applicant attended at the Manjimup Town Hall for the purpose of voting in the Commonwealth elections. When there he formed the view that if he were to vote, his vote would not be screened from observation when he marked his ballot-papers. He therefore departed without either registering or voting. 2 On 16 August 2006 the applicant filed an application requesting the Court to compel the respondent to construct voting compartments in what he says would be in accord with the requirements of ss 206 (first part) and 233(1)(a) of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act). He sought specifically that the Court should compel him to be screened from observation from above the knees to above the head from all four vertical sides when marking his ballot-papers in the voting compartment in future federal elections and referenda. 3 Section 206 reads: '206 Polling booths shall have separate voting compartments, constructed so as to screen voters from observation while they are making their ballot-papers, and each voting compartment shall be furnished with a pencil for the use of voters.' 4 Section 233 relevantly reads: '233(1) Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay: (a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot-paper. …' 5 On 20 September 2006 the respondent brought a notice of motion to dismiss the application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and O 20 r 2 of the Federal Court Rules. In a supporting outline of submissions the respondent contended that the application did not properly invoke any jurisdiction of the Court because the Court's jurisdiction under the Electoral Act derived either from Pt XXII relating to petitions disputing an election on referral from the High Court of Australia or s 383, allowing the Court to grant injunctions on the application of a candidate or the respondent. The outline of submissions accepted that the decisions and conduct of the respondent and its responsible officers at the Manjimup Town Hall booth in connection with the 2004 federal election may have been reviewable by the Federal Court under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). However, it was said the application did not purport to be made under that Act or set out any grounds for judicial review or seek any relief from the Court in connection with the applicant's obligation to vote in the 2004 federal election. Further, it was contended that the application would be futile because that election was completed on the return of the writ: ss 283 and 284 of the Electoral Act. Additionally, s 355 requires that any petition disputing an election be filed in the High Court as the court of disputed returns within 40 days of the return of the writ for the election. 6 The respondent's notice of motion was listed for hearing. In the meantime, on 17 November 2006, the applicant filed an outline of submission which indicated that he had obtained legal assistance in addressing the issues in the application (which he had drafted himself). The outline of submissions conceded that the Court had no jurisdiction under the Electoral Act to deal with the matter as one of a disputed electoral return. It abandoned the applicant's request that the respondent remove the words 'voting screen' from its Polling Places Procedural Manual. In addition and generally the applicant's outline suggested that by adjustments to his application, he would be seen to have a justiciable claim. On the eve of the hearing of the motion, counsel for the applicant filed a draft amended application. 7 This draft, being a recast version of the original application, would now seek the following relief: '1. A declaration that if, when the applicant presents himself to vote at the Federal election for the Senate and House of Representatives to be held in 2007, the respondent provides him with electoral booths that only contain voting compartments similar to those provided at the Manjimup Town Hall in Western Australia when he voted at the last Federal election held in 2004, such booths do not lawfully comply with sections 206 and 233 of the Act ("the relevant provisions"); 4. A declaration that if, when the applicant presents himself to vote at the Federal election to be held in 2007, the respondent provides him with electoral booths that only contain voting compartments similar to those provided at the Manjimup Town Hall in Western Australia when he voted at the last Federal election held in 2004, he may decline to vote under section 245(1) of the Act without incurring the threat of penalty for breach of section 245(8) of the Act, on the basis that such booths do not lawfully comply with the relevant provisions of the Act. 5. An order in the nature of mandamus against the officers of the Commonwealth who comprise the respondent requiring them when the applicant presents himself to vote at the next Federal election to be held in 2007, to provide him, in accordance with law, with voting booths that comply with the relevant provisions of the Act. 6. Such other orders as the Court, in its discretion, considers fit and appropriate.' 8 The draft submitted to the Court on behalf of the applicant also contained a draft statement of claim. That sets out that the applicant had found the voting booths provided to voters at the polling place at the Manjimup Town Hall on 9 October 2004 did not adequately screen voters from observation and that other persons could observe voters while they were marking their ballot-papers. In [6] particulars of the alleged inadequacy are set out. In [7] it is said that the applicant left the compartment of the voting booth without casting a vote. In [8] it pleads that on 7 January 2005 the applicant received a letter from the respondent regarding his apparent failure to vote at the 2004 federal election. In [9] the applicant states that on 12 January 2005 he responded to that letter, giving as his reason for not voting that he had not been provided with voting booths complying with the Electoral Act. In [10] it states that he received a letter dated 10 March 2005 from the Divisional Returning Officer acting with the authority and on behalf of the respondent in which the officer advised him that, although the officer considered the applicant's reason was not wholly valid and sufficient, he proposed to take no further action in the matter. However, the officer had added that he was warned that if he failed, without a valid and sufficient reason, to vote at any future Commonwealth election or referendum he would render himself liable to a penalty not exceeding $50. In [11] it said the applicant has raised the issue of non-compliance with the Commonwealth Parliamentary Joint Standing Committee of the Commonwealth Parliament and the respondent on a number of occasions, which are particularised. In [12] it says the respondent has maintained that the polling booths provided at the 2004 federal election were consistent with the requirements of the Electoral Act. In [13] it is alleged the respondent has not indicated to the applicant that it intends to provide polling booths at the next federal election that are in any way different to those provided at the polling place where the applicant endeavoured to vote in the 2004 federal election. Consequently it is asserted in [14] that it may therefore be reasonably inferred that when the applicant attends at a polling place to cast his vote at the next federal election, he will be provided with voting booths that are similar to those provided to the applicant when he voted at the last federal election. Additionally, that if he fails to cast a vote on the basis that the voting booths do not comply with the Electoral Act, he will be liable to a penalty for breach of s 245 of that Act. 9 The draft document also asserts that the jurisdiction now relied upon is that the application as recast would involve a matter in which an order in the nature of mandamus is sought against the officers of the Commonwealth who comprise the respondent for the purposes of s 39B(1) of the Judiciary Actand also a matter under and involving the interpretation of a law of the Commonwealth for the purposes of s 39B(1A)(c) of the Judiciary Act. 10 The draft document further states that the application as it would be recast would raise the following legal issues: '(a) In the event that the applicant presents himself to vote at the next Federal election, and the respondent provides voting booths similar to those provided at the Manjimup Town Hall at the 2004 Federal election: (i) will such voting booths comply with the relevant provisions of the Act; (ii) if not, in what respects will the voting booths not comply with the relevant provisions of the Act; (iii) is the applicant nevertheless obliged to cast his vote on pain of incurring a penalty for failure to vote? (b) To the extent that this Honourable Court determines questions (a)(i) and (ii) above adversely to the respondent, should the Court order the respondent to provide voting booths at the next Federal election "in accordance with law" so that they comply with requirements of the relevant provisions of the Act?' 11 In the oral submissions which were made in relation to the draft, there were two issues addressed. The first was the jurisdictional point as to whether the proposed draft would provide the Court with jurisdiction. The second was the interpretation point on whether the issue of construction of s 206 was reasonably arguable.