Supreme Court of Queensland|1999-08-18|Before: Desmond J, Atkinson J

Sharples v O'Shea & Anor [1999] QSC 190 (18 August 1999)

ONE NATION (as registered under the Electoral Act

CATCHWORDS ADMINISTRATIVE LAW - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - application for review of decision of Electoral Commission to register political party - whether applicant had standing to bring application - where application brought out of time - whether discretion to extend time should be exercised.

ADMINISTRATIVE LAW - ADMINISTRATIVE DECISION - procured by misrepresentation of fact or fraud - invalidity - consequences.

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - QUEENSLAND - OTHER MATTERS - invalid administrative decision - whether obtained by fraud or misrepresentation - effect.

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PLEADING - STATEMENT OF CLAIM - where application for review brought under the Electoral Act 1992 - whether questions posed at trial sufficiently raised on the pleadings.

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - INTERNAL MANAGEMENT - GENERALLY - political organisations - membership - whether people were members of the political party.

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - RULES AND MEETINGS - political organisations - whether political party properly registered by Electoral Commission - change to constitution - whether applicants for membership accepted as members.

Associations Incorporation Regulation 1982 (Qld)

Corporations Law s.360

Electoral Act 1992 (Qld) ss.3, 7, 69-75, 84, 180, sch.

Allan v Development Allowance Authority (1998) 152 ALR 439 referred to

Alphapharm Pty Ltd v Smithkline Pty Ltd [1994] FCA 996; (1994) 121 ALR 373 considered

Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 referred to

Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to

Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454 referred to

Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 followed

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 71 ALR 73 referred to

A'Hearn v Comcare (1993) 18 AAR 22 referred to

Baldwin v Everingham [1993] 1 Qd R 10 followed

Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 considered

Bateman's Bay Land Council v Aboriginal Fund [1998] HCA 49; (1998) 72 ALJR 1270 considered

Bollag v Attorney-General (Cth) (1997) 149 ALR 355 referred to

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 followed

Burton v Murphy [1983] 2 Qd R 321 referred to

Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 at 384 considered

Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 50 FCR 150 referred to

Chapman v Tickner (1995) 55 FCR 316 referred to

Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 referred to

Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42 referred to

Dare v Pulham (1982) 148 CLR 658 referred to

Edgar and Walker v Meade [1916] HCA 70; (1916) 23 CLR 29 followed

Federal Commissioner of Taxation v Bayly [1952] HCA 31; (1952) 86 CLR 506 considered

Fenlon v Radke [1996] 2 Qd R 157 referred to

Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 considered

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 referred to

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 followed

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 considered

Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 referred to

Lazurus Estates Ltd v Beasley [1956] 1 QB 702 referred to

Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313; (1997) 150 ALR 76 considered

Lewis v Heffer [1978] 1 WLR 1061 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1982) 149 CLR 27 followed

Packer v Meagher (1984) 3 NSWLR 486 referred to

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841; 51 ALR 490 applied

R v Ashford, Kent, Justices; Ex parte Richley (No 2) [1956] 1 QB 167 referred to

R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 considered

Rajski v Bainton (1990) 22 NSWLR 125 referred to

Re Wilcox; ex parte Venture Industries Pty Ltd [1996] FCA 1497; (1996) 137 ALR 47 considered

Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 considered

Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 referred to

Robertson v Knuth [1997] 1 Qd R 95 referred to

Robinson v Western Australian Museum (1977) 138 CLR 283 referred to

Scarcella v Morgan [1962] VicRp 30; [1962] VR 201 referred to

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 referred to

Thorp v Holdsworth (1876) 3 Ch D 637 referred to

Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421 referred to

Turner v King [1992] 1 Qd R 307 referred to

Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] HCA 67; (1994) 68 ALJR 304 referred to

United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520 referred to

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 referred to

Woods v Bate (1987) 7 NSWLR 560 applied

Woods v Beattie, ex parte Woods [1995] 1 Qd R 343 referred to

P J Lyons QC and P J Roney for the second defendant

Solicitors: Crown Solicitor for the first defendant

Hearing dates: 25-26, 29-30 March 1999, 7 April 1999 and 10 May 1999.

ONE NATION (as registered under the Electoral Act

1 Terry Sharples is an accountant who lives on the Gold Coast in south east Queensland. Prior to his involvement with the political party known as Pauline Hanson's One Nation, he had twice contested a council ward in local government elections but had never been a member of a political party. On 20 May 1998, he met with Paul Trewartha whom he believed to be the national vice-president and national secretary of Pauline Hanson's One Nation. In fact Mr Trewartha was national vice-president and national secretary of Pauline Hanson Support Movement Inc, an incorporated association. On 22 May 1998 they agreed that Mr Sharples would stand as a candidate for Pauline Hanson's One Nation in the electorate of Burleigh and Mr Sharples filled out a membership application form for Pauline Hanson's One Nation[1] and a candidate nomination application form which he handed to Mr Trewartha who faxed them to the Sydney office of Pauline Hanson's One Nation. At that time Mr Sharples intended to join the political party for whom he was standing as a candidate. Subsequently he came to the view that he had unwittingly applied to join another organisation which was a support movement but not a political party. Mr Sharples paid Mr Trewartha $290.00 cash, being $40.00 for membership application fees and $250.00 for candidate party nomination fees. He also gave Mr Trewartha a $250.00 cheque for electoral nomination fees. He added two conditions to his application to the party:- firstly that in his electorate of Burleigh, no preferences would be given by Pauline Hanson's One Nation without Mr Sharples' written agreement; and secondly, that the Electoral Commission refund to candidates would be passed on by the party to Mr Sharples at the rate of 75% of his personal campaign expenditure. Mr Trewartha also gave Mr Sharples a document which Mr Trewartha signed which was headed "Draft Only" and which read:

"SUBJECT: QUEENSLAND STATE ELECTION REIMBURSEMENTS REFUND OF EXPENDITURES FOR STATE CANDIDATES ACHIEVING MORE THAN 4% OF THE PRIMARY VOTE.

WHERE APPROPRIATE DOCUMENTATION IS SUPPLIED TO THE QUEENSLAND ELECTORAL COMMISSION VIA THE STATE ELECTORAL PARTY AGENT, MICK CHAPMAN ... BOX 246 GYMPIE 4570 ... PH 0754866243 ...

APPROVED EXPENSES WILL BE REIMBURSED AT 75% OF CANDIDATES [sic] PERSONAL EXPENSES RELATING TO STATE CAMPAIGN.

ALSO, INDIVIDUAL CANDIDATES SHOULD APPOINT THEIR OWN AGENTS OT [sic] HANDLE ELECTORAL EXPENSES (WITH COPY TO MICK CHAPMAN.)"

2 On 22 May 1998, Mr Sharples signed an Electoral Commission form entitled "Endorsed Candidate's Consent and Declaration" stating that he was the candidate endorsed by Pauline Hanson's One Nation and nominated by the registered officer of that party for the electoral district of Burleigh and that he consented to being nominated.

3 Mr Sharples received a membership card in the post for Pauline Hanson's One Nation dated 4 June 1998. It showed his membership number as 6227 and his branch as "Gold Coast". The card recited "Members of Pauline Hanson's One Nation are dedicated to assisting candidates endorsed by Pauline Hanson to win seats in the next Federal Election". On the reverse were set out "Pauline's Political Goals":

"1. To stop all immigration except that related to investment until all Australia's unemployment is solved.

2. To treat all Australians equally and abolish divisive and discriminatory policies, such as those related to aboriginal and multicultural affairs.

3. To restrict foreign ownership of Australia, repeal the Native Titles Act [sic], abolish ATSIC and reverse WIK.

4. To restore tariff protection, revitalise Australian manufacturing and initiate financial support for small business and the rural sector.

5. To take positive action on such matters as taxation reform, education, health, unemployment, crime and the discrimination created by political correctness."

The "support movement" goals were set out as follows:

"1. To volunteer members [sic] time to assist endorsed candidates at the next election.

2. To assist with letterbox drops, staffing election booths, distributing and placing election material.

3. To conduct fundraising activities and functions to raise funds needed to fight the next election.

4. To recruit new support group members and promote the benefits of voting for Pauline Hanson's One Nation.

5. To remain a non-political organisation which exists only to support Pauline Hanson's One Nation."

4 Mr Sharples stood as a candidate for the seat of Burleigh in the Queensland State Election held on 13 June 1998 and received more than 4% of the valid first preference votes polled in the electorate. He was described on the ballot paper[2] as Sharples, Terry, Pauline Hanson's One Nation. However, he had a disagreement with David Oldfield from Pauline Hanson's One Nation about the allocation of preferences. On the evening before election day Mr Trewartha rang Mr Sharples to tell him that "they were withdrawing all help" and that he was "on [his] own".

5 On 16 June 1998 Mr Sharples caused solicitors acting on his behalf to write to Mr King of Pauline Hanson's One Nation Queensland Electoral Campaign Committee saying that Mr Sharples had spent in excess of $11,000.00 in the campaign, that he had not been paid any of his expenses to date and that he was entitled to a full reimbursement of the amount which would be paid by the Electoral Commission to the party for each primary vote cast for Mr Sharples. On 14 July 1998, Mr Sharples sent letters of demand for his election expenses to Mr Trewartha described in the address as "National Vice-President, National Secretary, Pauline Hanson's One Nation" and to Mr James described as "State Director, Pauline Hanson's One Nation". No reimbursement has been made to Mr Sharples. As a result he started investigating Pauline Hanson's One Nation to determine what entity to sue to recover his electoral expenses.

6 This matter was commenced by writ on 10 July 1998 and was set down for trial by jury. An injunction which had been granted on 29 July 1998 restraining the first defendant the electoral commissioner from paying electoral funding to Pauline Hanson's One Nation until the trial of the matter was discharged on 14 August 1998 and on 2 September 1998, the electoral commission paid $225,071.07 and on 25 September 1998, $273,566.24 in public funding to Pauline Hanson's One Nation after a decision in the Court of Appeal on 9 September 1998. That matter was not further pursued on the trial of the action.

7 Immediately before the date on which the trial was to commence, the plaintiff sought and was granted leave on 22 March 1999 to amend his case so that it became an application to review under s.180 of the Electoral Act 1992 (Qld). That section provides as follows:

180.(1) The decisions set out in the following table are reviewable under this section if an application for review is made under this section by the person set out in the table.

1. A decision under section 58(4) regarding the inclusion of a person's address in the publicly available part of an electoral roll

2. A decision under section 65 not to amend an electoral roll to give effect to a notice by a person

3. A decision to take action, or not to take action, under section 67(5) to amend the electoral rolls

The person who objected under section 67 to the enrolment of another person or the other person

4. A decision under section 72 to register, or under section 73 to refuse to register, a political party

5. A decision under the Act that a person is a special postal voter

(2) An application for review of a reviewable decision must -

(i) in the case of a reviewable decision mentioned in item 4 in the table - the Supreme Court; and

(c) be made within 1 month after the decision comes to the notice of the applicant or such further period as the court allows; and

(3) The court must review the decision and make an order -

(4) If an application for review of a decision has been made to a Magistrates Court, a party to the application or the Attorney-General may, before or at any stage during the hearing of the application, apply to a District Court or the Supreme Court for removal of the matter to the court.

(5) The court may, by order, grant the application.

(6) If an application for review of a decision is required to be made to a Magistrates Court, a person who may make the application may apply to a District Court or the Supreme Court for leave to make the application to the court instead of a Magistrates Court.

(8) The Supreme Court or a District Court is to be constituted by a single judge for the purposes of this section.

(9) The Magistrates Court is to be constituted by a stipendiary magistrate for the purposes of this section."

This is the review of a reviewable decision under subsection 180(1) item 4 i.e. a decision pursuant to s.72 to register a political party.[3] Such an application for review can only be made to the Supreme Court constituted by a single judge. Accordingly the plaintiff withdrew his request for a jury. The plaintiff has set out his grounds on which review is sought in his statement of claim and it is only those grounds as particularised which will be considered,[4] i.e. that the procedure required by law to be observed in relation to the making of the decision was not observed; that the making of the decision was an improper exercise of the power conferred by the Electoral Act 1992 under which it was purported to be made; that the decision involved an error of law; that the decision was induced or affected by fraud or misrepresentation;[5] and that the decision was otherwise contrary to law.

8 The application for registration falls to be determined by the Electoral Commission of Queensland ("the commission") under s.72 of the Electoral Act 1992 which provides:

72.(1) If the commission, after considering all statements and replies to the statements under section 71, is satisfied that the application complies with the requirements of section 70, the commission must, subject to subsection (3) and section 73, register the political party.

(2) Registration is effected by entering or otherwise including in the register of political parties -

(a) the information set out in the application (other than under section 70(4)(e)); and

(b) any document accompanying the application as required by section 70(4)(f) and (g).

(3) The commission must not take any action in relation to the application during the election period in relation to an election.

(4) The commission must not register a political party other than in accordance with this section.

(5) On registration of the political party, the person whose name was set out in the application under section 70(4)(c) becomes the party's registered officer for the purposes of this Act.

(6) As soon as possible after it registers the political party, the commission must -

(a) give written notice to the registered officer that it has done so; and

(b) if any person made a statement to the commission under section 71 in relation to the application - give written notice to the person stating that it has registered the party and setting out why the reasons in the person's statement were rejected; and

The commission in this Part of the Act is constituted solely by the electoral commissioner ("the commissioner"), Mr O'Shea, the first defendant in this matter.[6]

9 The commissioner must not register a political party otherwise than in accordance with the procedures set out in s.72. If the commissioner, after following those procedures, is satisfied that the applicant complies with s.70, the commissioner, subject to subs.72(3) and s.73, must register the political party. The commissioner, in addition, has a discretion to refuse the registration of a political party given by s.73 of the Electoral Act 1992 which provides:

"application name" means a name for a political party, or the abbreviation of the name for a political party, set out in the party's application for registration.

"party body name" means the name, or an abbreviation or acronym of the name, of a prominent public body.

"party name" means the name, or an abbreviation or acronym of the name, of a parliamentary party or registered political party.

(2) The commission may refuse to register a political party if the commission believes on reasonable grounds that information set out in, or documents required to accompany, the application are incorrect.

(3) The commission must refuse to register a political party if the party's application name -

(d) so nearly resembles a party name that it is likely to be confused with or mistaken for the party name; or

(f) would otherwise be likely to cause confusion if registered.

(4) The commission may refuse to register a political party if the party's application name -

(b) so nearly resembles a public body name that it is likely to be confused with or mistaken for the public body name.

(5) If the commission decides to refuse an application, it must give the person who was to be the registered officer of the political party written notice of -

10 Section 70 sets out what is required to be contained in an application for registration as follows:

70.(1) An application for registration of a political party is to be made in accordance with this section.

(2) The application must only be made for the registration of a registrable political party.

(3) The application must be made by the secretary of the party.

(4) The application must be made to the commission in a form approved by the commission for the purposes of this section, and must -

(b) if the political party wishes to use an abbreviation of its name on ballot papers for elections - set out the abbreviation; and

(c) set out the name and address of the person who is to be the political party's registered officer for the purposes of this Act; and

(d) if the application is for a Queensland parliamentary party - set out the name of 1 member of the party who is a member of the Legislative Assembly; and

(e) if the application is for a party that is not a Queensland parliamentary party - set out the names and addresses of 500 members of the party who are electors; and

(f) be accompanied by a copy of the party's constitution; and

(g) set out any other prescribed information and be accompanied by a copy of any other prescribed document."

A "registrable political party"[7] is an organisation whose object or activity, or one of whose objects or activities, is the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part, that either is a parliamentary party or has at least 500 members who are electors and is established on the basis of a written constitution (however described) that sets out the aims of the party.

11 Ms Hanson who was the person named as the party's registered officer in the application for registration by Pauline Hanson's One Nation pursuant to subs.70(4)(c) is the second defendant in this matter in her capacity as representative of herself and all members of Pauline Hanson's One Nation (as registered under the Electoral Act 1992 (Qld)).

12 After an application for registration is made, the commissioner must give members of the public the opportunity to object to the registration of the party. The procedure for doing so is set out in s.71 of the Electoral Act 1992:

71.(1) As soon as practicable after an application is made to the commission, the commission must publish a notice in relation to the application in -

(b) a newspaper circulating generally in the State.

(a) set out the information included in the application under section 70(4)(a) to (c); and

(b) invite any persons who believe that the application -

(i) is not in accordance with section 70; or

(ii) should be refused under section 73;

to submit to the commission, within 1 month after the day of publication of the gazette notice, a statement under subsection (3).

(a) set out in detail the grounds for the belief; and

(4) The commission must make the statement available at its office for public inspection, without fee.

(5) The commission must give the person who is to be the party's registered officer -

(b) a notice inviting the person to give the commission a reply to the statement within such reasonable period as is specified in the notice.

(6) If the person gives the commission a reply within the period, the commission must, as soon as practicable, make the reply available at its office for public inspection, without fee."

13 The system of registration of political parties in Queensland was recommended by the Electoral and Administrative Review Commission ("EARC") in its report "The Review of the Elections Act 1983-1991 and Related Matters"[8] ("the EARC Report"). The EARC Report and the implementation of its recommendations recognise the important role of political parties in the public life of the State and underscore the political neutrality[9] of the commissioner in overseeing the registration and funding of political parties. The EARC Report observes:

"Registration of political parties and candidates is a process whereby the central role of parties and candidates is given a more official electoral status. This formal recognition enables the electoral system to confer certain privileges and benefits on parties, candidates and electors. At the same time it provides a means of achieving greater accountability in the electoral system."[10]

"The registration process is designed to confer a level of electoral status and official recognition on a political party."[11]

Once a political party is registered the details of the party are entered into a public register of registered political parties,[12] the party may nominate its candidates centrally[13] and thereby is entitled to have the name of the party or the abbreviation thereof after the candidate's name on ballot papers,[14] the party is entitled to public funding rather than the individual candidates,[15] and the party is required to lodge an annual return of receipts and expenditure.[16]

14 Section 180 of the Electoral Act 1992 makes the decision to register a political party judicially reviewable. However the statutory recognition of political parties also means that other matters such as disputes concerning the rules of registered political parties are justiciable.[17] As Dowsett J observed in Baldwin v Everingham,[18] referring to registration of political parties under the Commonwealth Electoral Act:

"the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations".

The same applies to political parties registered under the Queensland Electoral Act 1992. Their rules are more than just a matter between the members of the political party as those rules are required to be registered.[19] There is now a significant public interest in the enforcement of the rules of registered political parties.[20]

15 The question of substance to be determined in this matter is whether or not Pauline Hanson's One Nation was properly registered as a political party under the Electoral Act 1992. In the grounds of review as particularised the plaintiff essentially relies on three matters, and perhaps a fourth, to challenge the party's compliance with the requirements of the Electoral Act 1992. The first three are that it did not have 500 members who were enrolled as electors in the State of Queensland;[21] that it did not have as one of its aims and objectives the election of candidates to the Queensland Legislative Assembly;[22] and thirdly, that the person who signed as secretary of the party was not in fact the secretary of the party.[23] The fourth consideration, which was not vigorously pursued at trial because of a lack of evidence, was that the political party's registered officer, Ms Hanson, did not give her correct residential address as her address as required.[24] There is, however, no statutory requirement to give a residential address. The plaintiff says that the second defendant, its servants and agents, knew that its application for registration did not comply with the requirements of the Electoral Act 1992 and obtained its registration by fraud or misrepresentation.

16 In order to determine the questions of standing, extension of time and the merits of the action, it is necessary to look at the history of Pauline Hanson's One Nation and the organisations which were formed and how the plaintiff came to form the view that it had failed to satisfy any or all of the matters referred to above. This has necessitated a careful examination and evaluation of all of the evidence before the Court and any inferences that might properly be drawn. There are facts which are difficult to reconcile with one another and the rules of the party,[25] whether because of a lack of transparency or lack of care in drawing up the rules or in statements made, but the Court's role is to examine the evidence and come to a determination about the matters raised before it.[26]

17 For the reasons given by Gibbs CJ in Onus v Alcoa of Australia Ltd,[27] I considered it appropriate to proceed to hear this case on its merits before determining the question of standing.

18 While it is important to guard against vexatious and illegitimate litigation, it is equally important not to unnecessarily deny those with a real interest in a question which also has great public interest from litigating such an issue on what might be seen as technical grounds. In Bateman's Bay Land Council v Aboriginal Fund,[28] the High Court referred with approval to the warning given by Brennan J in Onus v Alcoa[29] that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement." The courts have attempted to reconcile these competing considerations by developing a flexible rule that a plaintiff has standing to prevent the violation of a public right if he or she has an interest in the subject matter beyond that of other members of the public.[30] As the High Court observed in Bateman's Bay Land Council v Aboriginal Fund:[31]

"Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation."

19 The plaintiff's standing in this case is determined by whether he is a person affected[32] by the decision to register the political party.[33] This criterion of standing should not be given a narrow construction.[34] The legislation, in terms, gives a right to a person affected to seek judicial review of a decision in addition to the public objection procedure in s.71 of the Electoral Act 1992.[35] This gives an important statutory role to the Supreme Court to exercise curial supervision of the decisions of the commissioner to register political parties.

20 The real interest of the plaintiff is seen in the fact that he believed he had joined the political party, Pauline Hanson's One Nation, and he had stood as a candidate for it in the State election held on 13 June 1998. The name of the party, Pauline Hanson's One Nation appeared next to his name only because it was a registered party[36] and he was endorsed by that party.[37] His expectation of a refund of his electoral expenses was based on his expectation that the political party was registered and would receive electoral funding[38] from which his expenses or a part of them would be reimbursed. Thus his interest comes within the scope and purpose of the statute in issue because he was affected by the rights given to the political party by registration.

21 Mr Sharples has never resigned from the party believing that it was unnecessary in view of his belief that he did not become a member in the first place. On 17 February 1999 Mr Sharples received written notice of the forthcoming Annual General Meeting of Pauline Hanson's One Nation to be held on 28 February 1999 at the Rooty Hill RSL in Sydney. He showed his membership card but Mr Ettridge said words to the effect "that's just a bit of paper with your name on it" and he was refused entry to the Annual General Meeting. Mr Sharples gave evidence that Mr Ettridge said to him that he had never been "a member of the party Pauline Hanson's One Nation". Although Mr Sharples had it put to him in cross-examination that Mr Ettridge had not made these statements to him Mr Sharples was unshaken in his evidence. On the other hand Mr Ettridge failed to give any evidence. In all of the circumstances, I prefer Mr Sharples' recollection of the conversation. No reason was put forward by the second defendant as to why Mr Sharples' application for membership might have been dealt with any differently from any other application for membership when he applied to join.

22 Although Mr Sharples' credit was undermined by the fact that he gave oral evidence at the hearing about an indemnity from Mr Abbott MHR which apparently contradicted oral evidence given by him before Ambrose J on 21 September 1998 to the effect that he had not had any discussion with Mr Abbott about Mr Abbott's providing an indemnity for this action or any action he may bring, none of these findings are thrown into doubt by that and I have not been required to make any finding about whether or not there was an indemnity given by Mr Abbott MHR to the plaintiff for his costs in this action.

23 All of this seems to represent sufficient standing to challenge the registration of a party which was registered only a few months before Mr Sharples was issued with a membership card and became a candidate for Pauline Hanson's One Nation in the first State election after its registration as a State party. The question is whether he has standing when he commenced the action not whether he had standing at the time registration was effected on 4 December 1997. The matters which give him standing directly relate to the objects of the legislation and the consequences that flow to a political party from registration.[39]

24 A decision that the plaintiff has standing is consistent with the view taken of standing by the Administrative Appeals Tribunal, constituted by the President Mathews J and Deputy Presidents Beaumont and Hill JJ in Re Williams and Australian Electoral Commission[40] with regard to the equivalent section[41] of the Commonwealth Electoral Act 1918 that membership of the party or a related party is sufficient to give standing to challenge a decision made under the Commonwealth Electoral Act to change the name of the registered officer of the Greens Party. The plaintiff in that case was a person affected by the decision because, in the event of an election, any member of a political party which was related to the Greens would have had a legitimate interest in ensuring that any nomination of candidates to represent the Greens should be made by a person who was validly appointed to perform the function of registered officer.

25 The time within which an applicant must make an application for review is one month after the decision comes to his or her notice or such further period as the Court allows.[42] This discretion is unfettered but must be exercised judicially according to the circumstances of the case. The onus is on the applicant to show that time should be extended as the presumption is that it should not. As Moynihan J observed in Kuku Djungan Aboriginal Corporation v Christensen:[43]

"It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest. The same may be said of considerations of prejudice to the respondent and others consequent on the delay in bringing the application."

Although it was immediately before trial that the matter was reconstituted as an application for review, the matter was commenced by writ of summons on 10 July 1998, seeking, inter alia, "a declaration that Pauline Hanson's One Nation is not a validly registered party pursuant to the Electoral Act 1992 (Qld)".

26 From the time of delivery of the original statement of claim on 14 September 1998 it was apparent that the matter was similar to an application to review. Leave was given to so amend the statement of claim without objection on 25 March 1999. On the same date a request for further and better particulars by the first defendant, the particulars given in response by the plaintiff, and by leave amended defences of the first and second defences were tendered.

27 The time that the decision to register the party was made was 4 December 1997. The applicant must seek an order to review within one month after the decision comes to his or her notice or such further period as the court allows. Mr Sharples' uncontradicted evidence, which I accept, was that he knew from late April or early May 1998 that Pauline Hanson's One Nation was fielding candidates in the forthcoming State Election. That election was held on 13 June 1998. He gave evidence that if he had thought about it he would have understood that some registration process had occurred, but he did not think about it. He had not seen the relevant advertisements in the "Courier-Mail" or the "Queensland Government Gazette". It could be said that he knew of the decision at least constructively to register the party on 20 May 1998 when he met Mr Trewartha.

28 On 3 July 1998, after he had recovered from the aftermath of the State Election campaign, Mr Sharples contacted the commission to obtain a copy of the constitution that had been submitted by Pauline Hanson's One Nation. It was only then that the court can be certain that he had actual notice[44] that the party was registered under the Electoral Act 1992. On 7 July 1998, Mr Sharples wrote to Mr O'Shea about the registration of Pauline Hanson's One Nation. This letter which was drafted by Tom Bradley, a solicitor, advised the commissioner of the following matters which Mr Sharples believed to be true:

"· Mr Briggs was involved in preparing the application for registration of Pauline Hanson's One Nation Party as a political party under the Electoral Act in September 1997.

· The body for which Mr Briggs believed the application was being prepared (and which he believed was seeking registration as a political party) was the Pauline Hanson Support Movement Inc, an association incorporated under the Associations Incorporation Act (Qld) and now known as the Pauline Hanson One Nation Members Inc.

· Mr Briggs supplied a copy of the constitution of the Pauline Hanson Support Movement Inc and the names and addresses of 530 members of that association for inclusion in the application.

· Before the application was submitted to the Commission, the constitution of the organisation known as Pauline Hanson's One Nation was substituted for the constitution of the Pauline Hanson Support Movement Inc. (I have obtained a copy of the constitution of the Queensland registered party from your office and can confirm that this is not the constitution of the Pauline Hanson Support Movement Inc.)

· The persons whose names and addresses Mr Briggs supplied for inclusion in the application were not members of the organisation known as Pauline Hanson's One Nation.

· The Pauline Hanson Support Movement Inc is not part of the organisation known as Pauline Hanson's One Nation.

· The Pauline Hanson Support Movement Inc and the body known as Pauline Hanson's One Nation are not both parts of the same political party.

· The constitution of the Pauline Hanson Support Movement Inc (a copy of which is enclosed) does not include as an object or activity the promotion of the election to the Legislative Assembly of Queensland of a candidate or candidates endorsed by it (or by a body of which it forms a part).

· According to Mr Briggs, at the time of the application, the only members of the organisation known as Pauline Hanson's One Nation were Mrs Hanson, Mr David Oldfield and Mr David Ettridge.

· The persons who responded to the Commission's survey were not supplied with a copy of the constitution lodged as part of the application. They answered the Commission's question in ignorance of the identity of the entity whose constitution had been lodged. Like Mr Briggs they assumed that the organisation seeking registration was the one they had joined, namely the Pauline Hanson Support Movement Inc.

· The applicant represented to the Commission that the 530 persons whose names and addresses were included in the application were members of the organisation known as Pauline Hanson's One Nation. In fact, the 530 persons whose names were used in the application, were not members (and are not members) of the entity whose constitution was submitted. They have no rights under that constitution to take any part in the affairs of the body which has become the registered political party under the Electoral Act.

· The person or persons responsible for the substitution of constitutions in the application intentionally deceived the Commission for the purpose of obtaining registration as a political party, contrary to the Act, for an organisation which at the time, according to Mr Briggs, had only three members and no Queensland parliamentary representative."

In the circumstances, he submitted to the commissioner that there were reasonable grounds for the Commissioner to suspect that the registration of Pauline Hanson's One Nation had been obtained by misrepresentation or fraud. He sought an investigation by the commissioner and requested the cancellation of the registration of Pauline Hanson's One Nation under s.75 of the Electoral Act if the commissioner was so satisfied.

29 The commissioner took the view that the Electoral Act 1992 did not expressly empower him to make such an investigation. However Mr O'Shea sent a copy of Mr Sharples' letter to Peter James as the Deputy Registered Officer of Pauline Hanson's One Nation and asked for his response in writing at the earliest opportunity.

Sharples v O'Shea & Anor [1999] QSC 190

At a glance

Court

Decision date

Before

Source

Judgment (570 paragraphs)

Sharples v O'Shea & Anor [1999] QSC 190 (18 August 1999)

Parties

Cases Cited (42)