Hudson v Lee

It appears from the petition and a subsequent affidavit of the petitioner that his complaint is restricted to the use by the respondent of his parliamentary or electorate postal allowance to post letters dated 3 March 1993 to electors for the Division of Dobell which, amongst other things, referred to the commitment of the Australian Labor Party to certain policies and objectives. It was asserted that this was use of the allowance for party/political business.

There are four notices of motion before the Court. The first was filed by the petitioner and seeks dispensation from O. 68, r. 3 of the High Court Rules ("the Rules") in so far as that rule requires a petitioner to cause a copy of the petition to be published in the Commonwealth Gazette and in the official Gazette of the State in which the election was held.

The second and third notices of motion were filed on behalf of the respondent and the Australian Electoral Commission ("the Commission"), respectively. They seek orders that no proceedings be had on the petition and that the petition be dismissed. The petitioner complains that there are formal defects in, or associated with, the notice of motion filed on behalf of the respondent. It is sufficient if the matter proceeds on the notice of motion filed on behalf of the Commission, the grounds of which are: "(a) The Petition does not comply with the requirements of paragraphs 355(a) and 355(aa) of the [Act]. (b) The Court of Disputed Returns is not empowered to declare an election void on the grounds alleged in the Petition."

The fourth notice of motion was filed by the petitioner and seeks orders that no proceedings be had on the notices of motion of the respondent and the Commission. It also seeks relief from compliance with s. 355(aa) of the Act [1] . The grounds set out in this notice of motion are concerned to dispute or rectify the matters raised in the third and fourth notices of motion, rather than to establish a basis for their summary dismissal. It is appropriate, therefore, to treat the fourth notice of motion as an answer to those earlier notices of motion, and, save as to s. 355(a), not an application for separate relief.

1. Section 355(aa) provides: "Subject to section 357, every petition disputing an election or return in this Part called the petition shall: (aa) subject to subsection 358(2), set out [the facts relied on to invalidate the election or return] with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief." Section 358(2) invests the Court with a discretion to, "on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa)".

It is convenient to proceed first with the Commission's notice of motion in so far as it is the basis for argument on behalf of the Commission and the respondent that the Court is not empowered to declare an election invalid or void on the ground asserted in the petition. If the argument is correct, the petition must be dismissed and other questions raised by the notices of motion become academic.

The Act, as its title suggests, is concerned to regulate the conduct of Commonwealth elections. Part XXII, Div. 1 of the Act is concerned with the validity of elections and returns, which, by s. 353(1), may be disputed by a petition addressed to the Court of Disputed Returns and not otherwise.

Section 362 of the Act provides as to the Court's powers with respect to bribery or corruption, illegal practice and undue influence. Those three matters are defined in s. 352(1) as follows:

"bribery" or "corruption" means a contravention of section [2] ;

1. Section 326 of the Act deals comprehensively with bribery or corruption in, and in relation to, election.

"illegal practice" means a contravention of this Act or the regulations;

"undue influence" means a contravention of section 327 of this Act or section 28 of the Crimes Act 1914. [3]

1. Section 327 deals specifically with hindering or interfering with the free exercise of political rights and duties in relation to an election, and, also, with discrimination on political grounds. Section 28 of the Crimes Act 1914 (Cth) makes it an offence for any person, "by violence or by threats or intimidation of any kind" to hinder or interfere with the free exercise or performance of a political right or duty.
   1. Section 326 of the Act deals comprehensively with bribery or corruption in, and in relation to, election.
   2. Section 327 deals specifically with hindering or interfering with the free exercise of political rights and duties in relation to an election, and, also, with discrimination on political grounds. Section 28 of the Crimes Act 1914 (Cth) makes it an offence for any person, "by violence or by threats or intimidation of any kind" to hinder or interfere with the free exercise or performance of a political right or duty.

The powers of the Court under s. 362 with respect to bribery or corruption, undue influence and illegal practices are precisely regulated by sub-ss. (1) and (3) which are as follows:

(1) If the Court of Disputed Returns finds that a successful candidate has committed or attempted to commit bribery or undue influence, the election of the candidate shall be declared void.

(3) The Court of Disputed Returns shall not declare that any person returned as elected 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 the knowledge or authority of the candidate; 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. It may be noted, for completeness, that the powers of the Court are further expressly confined by s. 362(4) which forbids interference with a return or an election on the ground of contravention of the Broadcasting Act 1942 (Cth) or the Radiocommunications Act 1983 (Cth). They are also confined by ss. 365 and 366 which are concerned, respectively, with what may be called polling clerk errors, and, certain errors and omissions relating to party affiliation as shown on the ballot papers.

Although there is no express statement in the Act to that effect, s. 362, in my view, provides exhaustively as to the general grounds on which an election may be invalidated or declared void. There are three matters which provide the basis for my view in that regard. First, the Act makes detailed and comprehensive provision as to the conduct of elections. Second, it allows for elections and returns to be disputed on the ground of "illegal practice" which is defined to mean "a contravention of [the] Act or the regulations" (which includes bribery or corruption as defined in the Act, and undue influence, to the extent that s. 327 of the Act rather than s. 28 of the Crimes Act is involved). The detail of the Act's provisions and the width of the definition of "illegal practice", standing alone, are powerful indications of the exhaustive nature of s. 362. In that context, the third matter is, in my view, conclusive, that matter being that s. 362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding with respect to bribery or corruption, undue influence and illegal practice. It would be incongruous if the Court's powers were entirely at large with respect to matters extraneous to the Act.

The only matter which tends against the exhaustive nature of s. 362 is the prohibition in sub-s. (4) with respect to breaches of the Broadcasting Act and the Radiocommunications Act. However, given the subject matter of the Act, it can safely be assumed that that prohibition was inserted for extra caution.

The ground asserted in the petition is not one of bribery or corruption, undue influence or illegal practice as defined in s. 352(1) of the Act. It follows from the exhaustive nature of s. 362 of the Act that it is not a ground on which an election can be declared invalid or void. Accordingly, the petition must be dismissed.

Liberty is reserved to all parties to make written submissions with respect to costs. Submissions by the respondent and the Commissioner are to be filed and served within seven days, and by the petitioner within the following seven days.

Oct. 19 Gaudron J. delivered the following written judgment: -

Michael John Lee ("the respondent") has applied for an order that the Commonwealth pay his costs [4] of opposing an electoral petition ("the petition") brought by Robert James Neilson Hudson (Jnr) ("the petitioner") with respect to the election for the Commonwealth Electoral Division of Dobell held on 13 March 1993.

1. Note, the respondent also sought an order that the Australian Electoral Commission's costs be paid by the Commonwealth. The Commission, however, sought no orders as to costs and took no part in the present application.

Power to order costs against the Commonwealth is conferred by s. 360 of the Commonwealth Electoral Act 1918 (Cth) ("the Act") which relevantly provides:

(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:

(4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.

The discretion conferred by s. 360(4) of the Act was considered in Nile v. Wood (No 2) [5] . In that case Brennan J. expressed the view, without being exhaustive, that costs might properly be awarded "because an officer of the Commonwealth ha[d] failed properly to perform his function or when the proceedings have resulted in some public benefit" [6] . A somewhat wider view was taken by Deane and Toohey JJ., who said that the power conferred by s. 360(4) "is not constricted by reference to the principles controlling the making of an order for costs inter partes", and should be exercised "when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition" [7] . Given the subject matter of the Act and the nature of the jurisdiction exercised by the Court of Disputed Returns, I think that wider view is to be preferred.

1. (1988) 167 C.L.R. 133. 2. ibid., at p. 142. 3. ibid., at p. 143.

The petitioner is an invalid pensioner. That fact was disclosed in an application by him to be excused from compliance with O. 68, r. 3 of the High Court Rules which requires a petition to be published in the Commonwealth, and relevant State, Government Gazette . His application was made on the ground of financial hardship. No ruling was made on the application as the petition was dismissed on the ground that it raised no issue under the Act and, hence, no issue which could result in an order with respect to the election.

A commendable feature of the Act is that very few impediments are placed in the way of a person who wishes to bring proceedings challenging an election in the Court of Disputed Returns. Under s. 356 a petitioner must deposit $100 as security for costs. That dollar amount reflects the change to decimal currency [8] but, otherwise, the deposit required has not been altered since 1902 [9] . General accessibility is also maintained by s. 370 which provides that no party to a petition is to be represented by counsel or a solicitor, "except by consent of all parties, or by leave of the Court".

1. See s. 3 and the First Schedule of the Statute Law Revision (Decimal Currency) Act 1966 (Cth). 2. See s. 195 of the Commonwealth Electoral Act 1902 (Cth), which required a deposit of £50.

When regard is had to ss. 356 and 370, it is to be expected that there will be cases where, as here, a person who has been declared duly elected is faced with a petition raising matters which reflect on him or her personally, but which are outside the scope of the Act. The only sanction against a petition of that kind is the power to order costs against the petitioner [10] . However, that course is not likely to assist or to appeal to an elected representative if, as here, the petitioner is a person of limited means who has taken a course which, without the benefit of legal advice, he might reasonably regard as open to him. In these circumstances, it is, in my view, fair and just that the Commonwealth pay the respondent's costs of the petition and of this application.

1. See s. 371 of the Act. Note that by s. 372 the deposit lodged under s. 356 must be applied in payment of costs awarded against a petitioner.