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[1999] HCA 31
defendant. The petition was dismissed with costs, and leave to amend the petition was refused.
Hayne J dismissed McClure's challenge to the Victorian half-Senate election. The petition complained that media organisations had not covered his candidacy and that Senate group voting rules disadvantaged him. The Court held that the constitutional freedom of political communication did not require private media to publicise his views. It also held that the Court could not replace valid voting laws with its own view of fairness. McClure's deposit claim was not contractual, and the Court identified no statutory power to order its return or to grant the requested directions about future elections or media coverage. The petition was dismissed with costs.
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2,341 words · generated 05/10/2026
In McClure v Australian Electoral Commission [1999] HCA 31, Hayne J considered an election petition arising from the Victorian half-Senate election held on 3 October 1998. McClure had been a candidate but was not elected. The petition alleged that the writ was returned on 29 October 1998 ([1]). The formal order dismissed the petition with costs, and the reasons conclude that McClure was to pay the Australian Electoral Commission's costs ([35]).
2 cited instruments linked from this judgment.
The petition raised two central complaints. First, McClure said his candidacy, policy platform and press releases had not received adequate media coverage. His case treated representative and responsible government as requiring an equal opportunity for candidates to make their views known during election campaigns ([27]). Second, he complained about the statutory arrangements for Senate group and individual voting tickets, including voting above or below the line ([10], [29]).
McClure also sought several forms of relief beyond setting aside the election. They included repayment of his $700 nomination deposit, directions to the Electoral Commission about ticket voting for independent candidates at future elections, informal instructions to media organisations about coverage of independent candidates, and the joining of this petition with others as a class action ([11]). He further sought declarations that the election was void and that none of the six returned candidates had been duly elected ([10]).
The respondent applied to dismiss or stay the petition. It argued that the petition failed to comply with s 355, did not allege an illegal practice within the statutory scheme, and did not state a ground that could justify setting aside the election ([3], [20]). At the further hearing, McClure sought leave to amend the petition to challenge ss 211 and 211A on grounds concerning Royal Assent and Australia's asserted sovereignty. Hayne J refused leave because the proposed amendment would be futile ([6]-[9]).
The proceeding also involved more than 380 appearances by people apparently claiming to have voted, or to have been entitled to vote, in the election ([4]). Hayne J noted that the number of appearances increased the difficulty and cost of the proceeding. He also noted allegations that some people may not have understood, or may not have known of, appearances made in their names, but expressly made no findings on those allegations ([34]).
Hayne J dealt first with the ancillary claims. The $700 deposit had been paid under s 170 as a statutory condition of a valid Senate nomination ([13]). The petitioner's characterisation of it as confirmation of a contract did not fit the statutory scheme. The Act prescribed circumstances in which the deposit was forfeited, and the petitioner's first-preference vote was below 4% of the total first-preference vote ([15]). The issues of contractual consideration, failure of consideration and meeting of minds therefore did not arise. Hayne J also found no identified basis for concluding that the Court could order the deposit's return under s 360 ([16]).
The requested media directions and directions to the Electoral Commission failed for a separate reason: the Act supplied no basis for the Court to issue them. Hayne J said that advising media chiefs how to act was not the Court's function, and that there was no statutory foundation for an order controlling future media conduct ([17]). Likewise, the Court had no identified basis to instruct the respondent how to conduct future elections ([18]).
The principal question was whether the petition alleged a basis to invalidate the election. The media complaint failed because it sought something beyond the protection recognised by the implied freedom of political communication. Hayne J said that the freedom was not an obligation to publicise and was not a right to require others to provide a means of communication ([28]). The complained-of decisions were those of people associated with radio or television stations who did not provide coverage to McClure's platform or press releases ([27]). The petition did not allege governmental curtailment of communication in the sense relevant to the constitutional implication.
The voting-system complaint also failed. Sections 211 and 211A provided for group voting tickets and certain tickets for qualifying ungrouped candidates; Hayne J described the statutory arrangements and noted that no equivalent provision applied to other candidates outside a group ([29]). The judgment referred to earlier challenges to related voting provisions, including McKenzie v The Commonwealth and Abbotto v Australian Electoral Commission ([30]). McClure alleged unfairness and relied on s 364's direction that the Court be guided by substantial merits and good conscience ([31]). But Hayne J interpreted s 364 as a direction about how the Court should decide issues raised under the Act, not as a power to rewrite electoral legislation to conform to an abstract standard of fairness ([32]). On the premise that ss 211 and 211A were valid, an election conducted under them could not be declared void merely because a candidate considered their operation unfair ([33]).
The proposed amendment did not change that analysis. Hayne J relied on Joosse in rejecting arguments that the proposed constitutional challenge would succeed. He referred to covering cl 5 and the provisions of the Constitution dealing with Royal Assent, particularly s 58, and found nothing to suggest that assent had not been given to the Acts introducing ss 211 and 211A ([8]). The history of international dealings invoked by McClure was not relevant to that question.
The judgment addressed the law as it stood in 1999, primarily by applying the existing statutory scheme and the High Court's then-understood account of the implied freedom. It did not purport to create a personal right to media coverage. Instead, it applied the distinction that the freedom limits governmental power rather than requiring private parties to provide a means of communication ([28]). The reasons quote and rely on Lange v Australian Broadcasting Corporation for that distinction.
On election petitions, the judgment worked within ss 355, 358 and 362 of the Commonwealth Electoral Act 1918 (Cth). Section 355 required the petition to state facts relied on to invalidate the election; s 358 generally prevented proceedings unless statutory requirements were met ([21]-[23]). Hayne J referred to Webster v Deahm for the minimum assertion needed to identify facts capable of invalidating an election, including the proposition that the election was likely to be affected ([24]). However, he did not decide the broader question whether s 362(3) exhaustively stated all circumstances in which an election could be declared void. He considered it unnecessary because the pleaded facts would not support the requested relief ([25]).
The reasons also applied a confined understanding of s 364. It guided the Court's approach to deciding issues under the Act, but did not confer a power to displace valid statutory provisions ([32]). The judgment therefore does not hold that courts can never examine the validity of electoral rules; rather, the particular proposed challenge to ss 211 and 211A was rejected, and the petition's fairness argument did not itself establish a ground for invalidating the election ([30]-[33]).
The judgment does not provide information about how later courts treated McClure. It would therefore be unsupported by this text to describe any subsequent adoption, limitation or rejection of its reasoning. Its own account of the law before the decision identifies earlier cases, including McKenzie, Abbotto, Lange, Webster and Hudson v Lee, but that is not evidence of later treatment of McClure.
At [28], Hayne J stated: “The freedom of communication implied in the Constitution is not an obligation to publicise.” In plain English, the constitutional protection did not require media organisations to cover a candidate or distribute that candidate's material. The judgment treated the petition as a claim to make others provide a platform, rather than as a claim that government had unlawfully restricted political communication.
The adjacent statement at [28] is equally important: “The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication.” The point is about the source and operation of the constitutional implication. In this case, the alleged non-coverage by radio or television stations did not, as pleaded, establish the kind of governmental restriction to which the freedom was directed.
At [32], Hayne J explained that s 364 did not permit the Court “to rewrite the Act to accord with some abstract standard of fairness”. Put simply, the statutory instruction to consider substantial merits and good conscience did not allow the Court to substitute its own preferred voting system for one enacted by Parliament. Hayne J added that the provision could not justify setting aside an election conducted under valid legislative rules ([32]).
At [33], the Court applied that reasoning to the complaint about ss 211 and 211A. If those provisions were valid laws and the election was conducted in accordance with them, the asserted unfairness of the arrangements did not make the election void. The judgment therefore separated disagreement with the design or effects of the voting system from a legally sufficient ground to invalidate the election.
Finally, the conclusion at [35], “The petition is one that cannot succeed,” records the result after the Court had addressed the principal complaints and ancillary relief. The order was dismissal with costs, not a declaration about the merits of every possible challenge to the statutory voting system.
The judgment is directly relevant to a petition that seeks to set aside an election based on a claim that private media organisations failed to cover a candidate. The key factual feature was that the alleged conduct consisted of decisions by people associated with radio or television stations not to cover the candidate's platform or press releases ([27]). The reasoning addresses that kind of claim where the asserted constitutional basis is a supposed entitlement to have others disseminate political views, rather than a pleaded governmental restriction ([28]).
It is also relevant where a candidate argues that a statutory electoral arrangement is unfair and invokes s 364 as a basis for judicial correction. The factual and legal trigger is a request that the Court use “substantial merits and good conscience” to override or rewrite valid electoral prescriptions. Hayne J rejected that use of s 364 ([31]-[33]). The judgment's reasoning is tied to the premise that the relevant provisions are valid; it does not determine every possible constitutional challenge to electoral laws.
The deposit discussion applies to a candidate who seeks repayment of a nomination deposit on contractual grounds despite a statutory forfeiture provision. In McClure's case, the first-preference vote was below the statutory threshold identified by the reasons, and Hayne J treated the consequences as governed by the Act rather than by contract ([13]-[16]).
The judgment also addresses requests in an election petition for orders directing future conduct by the Electoral Commission or private media organisations. Its reasoning is relevant where the petition seeks prospective directions without identifying a statutory source of power ([17]-[18]). It does not decide what powers might exist under a different enactment or in a different kind of proceeding.
The supplied judgment contains no account of decisions made after 24 June 1999 that applied, distinguished, followed or reconsidered McClure. It is not possible, on this source alone, to state how later courts treated it. Any claim about subsequent citation history or doctrinal development would require material beyond the judgment provided.
What can be described is how Hayne J used earlier authorities. Lange was relied on for the proposition that the implied freedom does not confer personal rights and instead limits legislative or executive power ([28]). McKenzie and Abbotto were discussed as earlier consideration of the constitutionality of Senate voting arrangements ([30]). Webster was cited in relation to what a petition must assert to plead facts capable of invalidating an election ([24]). Hudson v Lee was referred to in discussing the statutory framework for election petitions ([25]).
The judgment also noted Muldowney and related cases in connection with who may petition and the limits of election-dispute jurisdiction ([19]). Hayne J did not decide the proposed class-action issue. He said the point was not examined in detail and did not affect whether the respondent's application should be granted ([19]). Those references show the context of the reasoning, not later treatment of McClure itself.
Several questions were expressly left undecided or not explored. First, Hayne J observed that the relationship between s 355(a) and s 355(aa) might be obscure ([23]). The reasons did not resolve that interpretive issue because the petition failed on the substance of the allegations.
Second, the Court did not decide whether s 362(3) exhaustively stated the circumstances in which an election could be declared void. Hayne J said the respondent's argument might be stated too broadly, but found it unnecessary to reach a concluded view because the pleaded facts would not justify avoiding the election ([25]). The decision should not be read as resolving that wider question.
Third, the judgment did not decide the legal treatment of joining election petitions as a class action. It noted the petitioner's failure to identify a provision in the Act or High Court Rules contemplating that procedure, but left the issue unexplored because it did not affect the respondent's application ([19]).
Fourth, Hayne J made no findings about whether some people had been misled into entering appearances or had appearances entered in their names without their knowledge ([34]). The reasons identify concerns about the process but do not determine the facts or their legal consequences.
Finally, the judgment's discussion of ss 211 and 211A addressed the arguments and relief before Hayne J. It rejected the proposed amendment based on Royal Assent and sovereignty and rejected the pleaded unfairness argument as a basis for avoiding this election ([8], [30]-[33]). The judgment does not decide every possible constitutional challenge to Senate voting provisions or address later legislative changes.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
HAYNE J
MALCOLM McCLURE PETITIONER
AND
THE AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
AND
PHILIP JONES & ORS PARTIES JOINED
McClure v Australian Electoral Commission [1999] HCA 31
24 June 1999
M119/1998
ORDER
Petition dismissed with costs.
Representation:
Petitioner appeared in person
S J Gageler for the respondent (instructed by Australian Government Solicitor)
J T Shiels (instructed by GSM Lawyers) for Kelly Buzza (a party joined)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
McClure v Australian Electoral Commission
Elections – Senate – Court of Disputed Returns – Petition disputing validity of half Senate election – Validity of Commonwealth Electoral Act 1918 (Cth), ss 211, 211A – Deposit lodged pursuant to s 170 – Whether unsuccessful candidate entitled to refund – Powers of Court pursuant to Commonwealth Electoral Act 1918 (Cth) – Remedies.
Constitutional law – Implied constitutional rights – Freedom of communication about political matters – Whether entitles election candidate to media coverage.
The Constitution, ss 7, 24.
Commonwealth Electoral Act 1918 (Cth), ss 170, 211, 211A, 355, 358, 362, 364.
"The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."
This Court is the Court of Disputed Returns1. The petitioner has filed an election petition which, it is said, "concerns the election of the Half Senate for the Commonwealth of Australia in the State/Territory of Victoria held on 3rd October 1998". The writ for the election is alleged to have been returned on 29 October 1998. The petitioner was a candidate at that election; he was not elected.
The validity of Div 1 (ss 352-375A) of the Act was unsuccessfully challenged in Sue v Hill2.
The respondent has applied for orders that the petition be dismissed, or that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.
More than 380 appearances have been entered, apparently on behalf of persons who claim to have voted or to have had the right to vote at the election to which the petition relates3. When the respondent's application first came on for hearing the application had not been served on any of the persons who had entered an appearance. The further hearing of the application was adjourned. I directed that notice of the application would be given sufficiently if a short form of notice were sent by post to persons appearing. That notice told the recipient that a copy of the summons, affidavit in support, and the respondent's outline of submissions could be inspected at the Registry.
Only two of the persons to whom notice was given appeared on the further hearing of the application. One, Mr Murgatroyd, made a short supplementary submission in support of the petitioner. The other, Ms Buzza, appeared by solicitor to say that she had not understood that the documents she had been asked to sign constituted entry of appearance to the petition.
When the application came on for further hearing, the petitioner sought, for the first time, to amend the petition by alleging that ss 211 and 211A of the Act are not valid laws of the Parliament because (in effect) there was no proper signification of the Royal Assent to the bills by which those sections were inserted in the Act. Either in amplification of or in addition to this contention the petitioner sought to allege that Australia became a sovereign and independent nation at or after the time of its execution of the Treaty of Versailles. Accordingly (so the argument went) the signification of Royal Assent to legislation by, or on behalf of, a person who is the sovereign of the United Kingdom was of no effect.
I heard argument in support of the application for leave to amend but indicated that I would give my decision on that application at the same time as giving my reasons in relation to the respondent's application. The application for leave to amend is refused.
Leave to amend in the terms proposed would be futile. For the reasons I gave in Joosse v Australian Securities and Investment Commission4, I consider the arguments that the proposed amendment seeks to found are arguments that must fail. The immediate question presented by arguments of this kind is what law is to be applied by the courts. That question is resolved by covering cl 5 of the Constitution:
"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State".
In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament. So far as now relevant, s 58 governs. It provides that the Governor‑General "shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name". There is nothing to suggest that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act. The history of international dealings to which the petitioner referred is not to the point.
The petition
In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election6, and what has become known as voting above or below the line7. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected.
In addition, he seeks four other kinds of relief: first, the return of the lodgment fee of $700 that he paid on his nomination as a Senate candidate (a claim that I will call the "deposit claim"); second, that the Court "instruct" the respondent to make provision for ticket voting for independent candidates in all future elections for the Senate (the "ticket voting claim"); third, that:
"[t]he Chiefs of Staffs of the media bodies referred to in this petition be informally instructed by the [C]ourt to make provision for and ensure proper coverage of press releases and policy launches by independent candidates and/or that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independents"
(the "publicity claim"); and fourth, that leave be granted to join this petition, and certain other petitions now pending in the Court, "as a Class-Action before the Full Bench of the High Court" (the "class action claim").
The claims for relief other than avoidance of the election
The deposit claim
The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) and (3) of the Act. Section 170(2) says that a nomination under Pt XIV of the Act is not valid unless the prescribed amount is deposited with the nomination8 or, if the nomination is submitted by facsimile, before the latest time for valid submission of the nomination9. Section 170(3)(a) prescribes $700 as the deposit if a person is nominated as a Senator.
The petitioner characterises this deposit as "confirmation of a contract" between the petitioner and the respondent and says, in effect, that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be - one in which "no one candidate would be disadvantaged above … another".
There are at least two answers to this contention. First, the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee. The Act prescribes the circumstances in which the deposit is to be forfeited10 and those circumstances came to pass in the petitioner's case - the number of votes polled in his favour as first preferences was less than 4% of the total number of votes polled as first preferences. Questions of consideration, failure of consideration, or meeting of the minds simply do not arise and the claim must therefore fail.
Secondly, it may be very much doubted that the Court has power to order the return of a candidate's deposit. No such power is included in the list of powers of the Court given by s 360(1) and, although that list is not exhaustive, the petitioner was not able to point to any basis for concluding that the Court does have the power for which he contends. This claim must fail.
The publicity claim
The ticket voting claim
The class action claim
The claim to avoid the election
Section 355 of the Act
"Subject to section 357, every petition disputing an election or return in this Part called the petition shall:
(a) set out the facts relied on to invalidate the election or return;
(aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;
…
(e) be filed in the Registry of the High Court within 40 days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution, within 40 days after the notification of that choice or appointment."
(Section 357 concerns petitions by the Australian Electoral Commission; it has no application to the present matter.)
"(1) Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with.
(2) The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa)."
(The provisions of s 358(3) governing when relief may be granted under sub‑s (2) are not relevant.)
The relationship between s 355(a), requiring that a petition "set out the facts relied on to invalidate the election", and s 355(aa), requiring that the petition "set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief", may be obscure14. It is, however, clear from s 358(1) that no proceedings may be had on the petition unless it sets out the facts relied on to invalidate the election.
Section 362(3) provides that:
"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."
In Webster v Deahm, Gaudron J held that (leaving aside from consideration certain kinds of case not then relevant, and not relevant in the present matter):
"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 Act is one raising a matter or matters by which 'the election was likely to be affected'"15.
No doubt it was in light of this, that the respondent submitted that a petition must be dismissed if it does not set out facts which, if proved, would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds.
The petitioner's complaints
As I have noted earlier, the petitioner makes essentially two complaints: the first about media coverage (or the lack of it) and the second about the "above the line" voting system. I deal with them in turn.
The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral process. As counsel for the respondent pointed out, much of this part of the petition is copied from the report of the argument of Sir Maurice Byers QC in Australian Capital Television Pty Ltd v The Commonwealth18. Central to the petitioner's case in this respect is the assertion in his petition that representative and responsible government:
"requires that every person and every political candidate have the entitlement to make his or her views known on political issues not only between elections but also especially during election campaigns. It requires that all political candidates have an equal opportunity to be elected and that the voting process should unfairly disadvantage no political candidate."
That assertion must then be understood in light of other provisions of the petition in which it is made plain that the conduct of which complaint is made is the decision of persons associated with radio or television stations not to give coverage to the petitioner's platform or press releases.
"ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous21, they are 'a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a "right" in the strict sense'. In Cunliffe v The Commonwealth22, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said23:
'The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.'" (Emphasis added)
The second complaint, about the application of the provisions of the Act dealing with the grouping of Senate candidates, requires some further reference to those provisions. Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group, the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement, being an order that gives preferences to the candidates lodging the statement before any other candidate. Section 211A of the Act makes like provision for candidates who are Senators or, if there has been a dissolution of the Senate, were Senators immediately before the dissolution and who are not members of a group. There is no like provision for other candidates not part of a group.
The constitutional validity of provisions like s 211 has twice been considered - in McKenzie v The Commonwealth24 and in Abbotto v Australian Electoral Commission25. At the time of McKenzie, the Act was cast in slightly different terms and did not contain s 211A. Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution26 and held that the provisions then in force did not "so [offend] democratic principles as to render the sections beyond the power of the Parliament to enact"27. In Abbotto, Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution28. The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A. The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out, that challenge is not sustainable.
The petitioner alleges that the provisions are "unfair" and asserts that s 211 (and, perhaps, s 211A) is not a reasonably proportionate regulation of the subject‑matter. He prays in aid of this submission that the Court is obliged by s 364 to be "guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities".
s 354(1). ↩
[1999] HCA 30. ↩
High Court Rules, O 68 r 6(1). ↩
(1998) 73 ALJR 232; 159 ALR 260. ↩
Nile v Wood (1988) 167 CLR 133 at 137 per Brennan, Deane and Toohey JJ. ↩
ss 211 and 211A. ↩
s 209(1). ↩
s 170(2)(b). ↩
s 170(2)(c). ↩
s 173. ↩
(1993) 178 CLR 34. ↩
See also Pavlekovich-Smith v Australian Electoral Commission (1993) 67 ALJR 711; 115 ALR 641; Sykes v Australian Electoral Commission (1993) 67 ALJR 714; 115 ALR 645; Robertson v Australian Electoral Commission (1993) 67 ALJR 818; 116 ALR 407; Abbotto v Australian Electoral Commission (1997) 71 ALJR 675; 144 ALR 352. ↩
s 352(1). ↩
McClure
Australian Electoral Commission [1999] HCA 31; 73 ALJR 1086; 163 ALR 734
(1998) 73 ALJR 232
(1988) 167 CLR 133
(1993) 178 CLR 34
(1993) 67 ALJR 711
(1993) 67 ALJR 714
(1993) 67 ALJR 818
(1997) 71 ALJR 675
(1993) 67 ALJR 781
(1993) 177 CLR 627
(1992) 177 CLR 106
(1997) 189 CLR 520
(1994) 182 CLR 104
(1994) 182 CLR 272
(1984) 59 ALJR 190
(1925) 35 CLR 422
(1992) 28 NSWLR 26
The petition was dismissed with costs, and leave to amend the petition was refused.
Read in the context of the Act, s 364 and its reference to "substantial merits and good conscience" is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition; it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness29. If the provisions made in the Act for election of Senators are valid laws of the Parliament, it is not to the point for the Court to attempt to characterise those provisions as "fair" or "unfair". In particular, s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative prescriptions.
Thus, if ss 211 and 211A are valid laws of the Parliament, an election conducted in accordance with those provisions (and the other applicable provisions of the Act) cannot be held to be void. The asserted challenge to validity is, as I have said, without foundation. It follows that the second of the petitioner's complaints fails.
Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case. As I have noted earlier, more than 380 appearances were filed. It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent. More troubling were the suggestions in an affidavit filed on behalf of the respondent, first, that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and, second, that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering appearance. I have, however, embarked on no inquiry into these assertions and make no finding about them.
The petition is one that cannot succeed. Although the petitioner contended that the respondent should pay its own costs, I do not consider that there is any reason to depart from the ordinary rule that costs follow the event. I will therefore order that the petition is dismissed; the petitioner will pay the costs of the respondent - the Australian Electoral Commission.
Sykes v Australian Electoral Commission (1993) 67 ALJR 714 at 717 per Dawson J; 115 ALR 645 at 648. ↩
(1993) 67 ALJR 781 at 782; 116 ALR 223 at 225. ↩
Hudson v Lee (1993) 177 CLR 627; Robertson v Australian Electoral Commission (1993) 67 ALJR 818 at 819 per Toohey J; 116 ALR 407 at 409. ↩
Sue v Hill [1999] HCA 30 at [9] per Gleeson CJ, Gummow and Hayne JJ, [121] per Gaudron J. ↩
(1992) 177 CLR 106 at 109-113. ↩
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. ↩
(1997) 189 CLR 520 at 560. ↩
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 168. See also at 146-148. ↩
(1994) 182 CLR 272 at 326. ↩
(1994) 182 CLR 272 at 327. ↩
(1984) 59 ALJR 190; 57 ALR 747. ↩
(1997) 71 ALJR 675; 144 ALR 352. ↩
Section 7 provides (so far as relevant): "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." Section 16 provides: "The qualifications of a senator shall be the same as those of a member of the House of Representatives." ↩
(1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. ↩
Section 10 provides: "Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State." ↩
British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 at 438 per Isaacs J; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-31 per Gleeson CJ and Handley JA. ↩