Does the petition sufficiently set out facts?
15 It is convenient to begin with the question whether, insofar as contraventions of the CE Act are raised by the petition, there are sufficient facts set out in it. This question is distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s 355(aa). A failure of the latter kind might be forgiven under s 358(2) if the grant of relief would not unreasonably prejudice the interest of another party to the petition (see s 358(3)).
16 For the purpose of considering the Commission's submission, every reasonable inference in the petitioner's favour should be drawn from the facts which are actually set out in the petition. Likewise, I am prepared to assume that facts which truly are notoriously common knowledge and which would not need to be proved by evidence (even of the kind contemplated by s 144 of the Evidence Act 1995 (Cth)) may be assumed, when reading the petition. (Section 144 provides that proof is not required about knowledge that is not reasonably open to question and is either common knowledge where the proceeding is held (or generally) or can be verified by reference to a document, the authority of which cannot reasonably be questioned.) The question is not whether, in the actual exercise of any jurisdiction the Court may have, evidence might or might not need to be called to establish one or more of those facts. It is important to bear in mind for present purposes that the question is whether the petition sets out the facts which, if true, could cause the Court to invalidate the election. Nevertheless, I am prepared to assume, even at the jurisdictional stage, that the Court should not shut its eyes to matters which are genuinely notorious, even if not alleged in the petition, in a way which would bring the administration of justice into disrepute.
17 Also, the petitioner is, in my opinion, entitled to have the Court assume an understanding of the effect of relevant aspects of the electoral laws, even though, on one view, such effects might be thought to amount to "facts", the existence of which is crucial to the series of propositions which must be established to entitle the petitioner to relief. Thus it should be taken as given, for example, that the Senate voting system is by way of preferential and proportional representation and that the logical implications of this include that candidates or groups of candidates who might attract quite small numbers of votes may contribute, by the allocation of their preferences, to the success or failure of the last of the six Senators elected at an election for half of the Senators for a State.
18 That the petition should nevertheless set out the facts relied upon to invalidate an election is a jurisdictional prerequisite, and that flows from the combined effect of ss 358(1) and (2), 355(a) and (aa) and 362(3). In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648-9, Dawson J said:
"The statement of the facts relied on to invalidate the election which para (a) of s 355 requires cannot be amended if, as is the case here, more than 40 days have elapsed since the return of the writ for the election. Otherwise the amendment would in effect evade s 355(e) which requires the petition to be filed within that time. It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on. 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. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The Court would then be required to try the petition even though on its face it could not succeed.
His Honour followed Cole v Lacey (1965) 112 CLR 45 and Nile v Wood (1988) 167 CLR 133 in which Brennan, Deane and Toohey JJ said at 138: "The petition must set out facts which would justify relief under the Act…".
19 Counsel for the Commission, Mr Hanks QC and Ms Jagot, submit, correctly in my opinion, that the word "likely" when used in a statute can have a variety of meanings ranging from "just possible" to "highly probable", depending on the context. In my opinion, the present context includes the following matters. Australia is a democratic country. However the legislative, indeed the constitutional, expression of democratic principles has been influenced (a purist might say, compromised) by a number of considerations of perceived necessity and practicality. Thus, for example, the people of a less populous state, such as Tasmania, are represented by the same number of Senators as the people of the more populous states such as New South Wales, and by six times as many Senators as either of the Territories. The effect of s 355 and 358 of the CE Act is that the Court may not forgive a failure to set out the facts relied on to invalidate an election. The CE Act provides only forty days in which a candidate or person qualified to vote may challenge the validity of an election: see s 355(e) and 353(1) which provides: "the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise". These and other requirements of the Act are plainly steps aimed at both providing for the ability of the people to ensure that elections have been lawfully conducted and considerably limiting when and how this might be done, in the interests of (a) certainty of the results of elections and (b) the necessity for the machinery of government to be able to function without undue interference.
20 In my view, s 362 is of a piece with the legislative policy and context thus apparent. It would defy the policy underlying the provisions referred to if a merely timely voter or candidate with access to pleading prowess could set elections at nought for some contravention of the CE Act, even if there were no real possibility, as distinct from a merely theoretical or remote possibility, that the result of the election might have been affected by such contravention. It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. In Crouch v Ozanne (1910) 12 CLR 539 O'Connor J was considering whether the prevention of some of a candidate's scrutineers "from exercising their duties in looking after Mr Crouch's interests during the day [in certain polling booths], and also … from taking the part which they ought to be allowed to take in the scrutiny" was "likely to have affected the election". At the affected booths, the majority of votes polled for the successful candidate was larger than his total majority. His Honour said at 543:
"I cannot act upon the mere conjecture that the result of the election would have been different if the scrutineers had not been interfered with … The question for my determination is whether I would be justified in disturbing the choice of the electors by so large a majority on the mere supposition or conjecture that, if at these three polling places Mr Crouch had had the full benefit of the presence of his scrutineers, the result would have been so different as to have affected the result of the election."
21 It seems to me that the approach I favour is in accordance with that applied by O'Connor J.
22 I did not understand the Commission ultimately to put the matter any higher against Mr Kelly than this. To my mind any more liberal interpretation of the word "likely" which might aid the petitioner cannot be sustained.
23 It is immediately apparent that the petition is quite deficient in failing to set out the necessary facts. The facts as to the result of the election, such that one might be able, even by a process of generous inference, to conclude that the exclusion of Mr Kelly and the other candidates in his group might, as a real possibility, have influenced the actual outcome of the election, are simply not there. There is no question of such result being, in the sense mentioned, notoriously common knowledge. I doubt that there would be five people in Australia who could say from memory who were the groups of candidates and the individual candidates and how many votes they attracted in the election in question. There would be very few who could even indicate, merely to some reasonably approximate order of magnitude, by what margin the last-elected of the respondents was so elected. One may infer, from the legislation establishing a voting system such as has been provided for the Senate, that if there is a large number of groups of candidates and/or individual candidates, arrangements as to distributions of preferences that a particular group or candidate may be able to engineer might result in that group or candidate wielding a degree of influence on the election result much larger than the actual proportion of the votes attracted by that group or candidate, and that that may be so even if the proportion of votes so attracted is quite small. But that is a matter merely of logical or theoretical possibilities. As I have indicated, whether there was any real chance of that occurring, but for Mr Kelly and his group's exclusion, so far as the petition is concerned, is entirely a matter of speculation and, by reason of the absence of facts set out in the petition, quite uninformed speculation.
24 I have however been troubled, to some extent, as to whether facts asserting the illegal exclusion of a candidate might not, of themselves, oblige the Court to say that the result of the election is likely to have been affected. Such an interpretation of the CE Act would tend to vindicate a fundamental notion of modern Australian democracy that, in general, any citizen should be able to stand for election to Parliament. In Webster v Deahm (1993) 116 ALR 223 Gaudron J said (at 225):
"the very minimum assertion necessary to constitute a fact which will 'invalidate (an) election or return' for the purposes of s.355(a) of the[CE Act] is one raising a matter or matters by which 'the election was likely to be affected'. In general terms, and leaving aside the situation in which a person was prevented from voting or in which a candidate was not eligible to stand (neither of which is claimed in this case), that can only be satisfied by an assertion that goes to or bears upon the casting or counting of votes." (emphasis added)
However, the matter was squarely dealt with by Dawson J in Sykes v Australian Electoral Commission (1993) 115 ALR 645. His Honour said (at 650-51):
"The petitioner alleges in ground 6 that his nomination was valid and was wrongfully rejected. If that was so, then there was a contravention of the [CE Act] and, for that reason, an illegal practice on the part of the officer to whom the nomination was made. But that would not be a sufficient basis under s362(3) to declare the relevant election void. Before that can be done the court must be satisfied that the result of the election was likely to be affected, and ground 6 sets out no facts which would justify the court in being so satisfied. And grounds 1, 2, 3 and 5 similarly set out no such facts. It follows, I think, that on the facts relied on by the petitioner in relation to these five grounds no relief could be granted."
25 I am of course bound by such a conclusion of a member of the High Court, sitting as the Court of Disputed Returns, on a matter necessary to the decision in the case. Thus it appears that, in subjecting an allegedly wrongfully excluded candidate to the requirement that he or she should assert, in addition to an allegation of wrongful exclusion, that such exclusion was, as a matter of reality, "likely" to affect the election result, Parliament took another step to express a democratic principle in a practical manner.
26 The failure to assert facts regarding the likely effect on the election was not, in my opinion, a matter merely of failure to set out the necessary "facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief" as required by s 355(aa), which might be remedied under s 358(2). Granted that there may be no very bright dividing line between setting out facts and setting them out with sufficient particularity for the purposes of the statute (c.f. Dawson J's remarks in Sykes supra), it is at least clear that some factual assertion, however generally framed, capable of supporting the conclusion that the exclusion of Mr Kelly's group was likely to have affected the result, should have been made.
27 It is accordingly unnecessary to consider further the adequacy of the petition or the legal premises on which it is based, insofar as it concerns matters that do not involve more than supposed contraventions of the CE Act, namely grounds three and four of the petition.