High Court of Australia|1993-09-03|Before: Gaudron J

Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223; (1993) 67 ALJR 781 (3 September 1993)

ALASDAIR PAINE WEBSTER v. MAGGIE DEAHM (aka MARGARET JOAN DEAHM) AND ANOR

[1993] HCA 38; (1993) 116 ALR 223

1. That the notices of motion of the first and second respondents be stood over for the hearing of further argument as to the thirteenth and fifteenth allegations in Petition No. S71 of 1993 (p.12, par(b), and, p.13, par.(b), respectively).

2. That, subject to Order 1 and save to the extent of the sixth and the part of the ninth and tenth allegations, that "persons unlawfully marked ballot papers to which they were not entitled" and that "(p)ersons voted, who were not entitled to vote" (p.7, par.(c) and, p.10, par.(a) of the Petition, respectively) and as particularized in the Petition, there be no further proceedings on the Petition.

3. That the petitioner be relieved from c0mpliance with s.355(aa) of the Commonwealth Electoral Act 1918 (Cth) in relation to the sixth allegation that "persons unlawfully marked ballot papers to which they are not entitled" (p.7, par.(c) of the Petition), on terms that, within 21 days hereof, he provide particulars of the ballot papers involved.

4. That the petitioner have access to the Electoral Rolls used in the election for the Commonwealth Division of Macquarie held on 13 March 1993.

5. That, save to the extent of Orders 3 and 4, the petitioner's notice of motion be dismissed.

6. That the petitioner have liberty to a0pply within 7 days hereof for relief under s.358(2) of the Commonwealth Electoral Act 1918 (Cth) with respect to the part of the ninth and tenth allegations that "(p)ersons voted who were not entitled to vote" (p.10, par.(a) of the Petition).

GAUDRON J Alasdair Paine Webster ("the petitioner") has filed a petition ("the Petition") in this Court, sitting as the Court of Disputed Returns, pursuant to s.353(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act"), disputing the election of Maggie Deahm ("the respondent") as the Member for the Commonwealth Electoral Division of Macquarie at the House of Representatives elections held on 13 March 1993. The petitioner was an unsuccessful candidate for that Division, having been defeated by the respondent by 165 votes.

2. The Petition also contains a claim that "the General Election held for Members of the House of Representatives ... be declared void" and that "there be a fresh General Election throughout Australia for the House of Representatives". That claim has since been abandoned and it is accepted by the petitioner that, to the extent that it raises matters going only to that claim, the Petition must be dismissed.

3. There are three notices of motion before the Court. The first was filed on behalf of the Electoral Commissioner ("the Commissioner"). It seeks orders setting aside nominated paragraphs of the Petition which, it is claimed, inter alia, do not comply with one or other of pars (a) and (aa) of s.355 of the Act. The second was filed on behalf of the respondent and seeks orders of the same kind and on the same grounds. The third was filed on behalf of the petitioner and seeks relief, under s.358(2) of the Act, from initial compliance with s.355(aa) in relation to certain allegations in the Petition. The petitioner also seeks access under s.360 of the Act to various documents in the possession of the Commissioner so that he can particularize those allegations in due course.

4. So far as it is relevant to the present motions, s.355 of the Act provides as follows:

"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

(aa) subject to subsection 358(2), set out those facts with

matter or matters on which the petitioner relies as

no present relevance. Section 358 is as follows:

"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).

(3) The Court shall not grant relief under subsection

(2) unless it is satisfied that:

(a) in spite of the failure of the petition to comply

with paragraph 355(aa), the petition sufficiently

identifies the specific matters on which the

petitioner relies; and

(b) the grant of relief would not unreasonably prejudice

the interests of another party to the petition."

5. Under s.362(1) of the Act, an election is to be declared void if the Court finds that "a successful candidate has committed or has attempted to commit bribery or undue influence". Section 362(3) has the effect that in other cases as set out in pars (a) or (b), namely, "illegal practice committed by (a) person other than the candidate and without the knowledge or authority of the candidate" or "illegal practice other than bribery or corruption or attempted bribery or corruption", a return can be declared invalid or an election can be declared void only if "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".

6. Putting to one side the case in which a person is prevented from voting and which is the subject of special provision ((1) Section 365 is subject to the proviso that:

"where any elector was, on account of the absence or

error of, or omission by, any officer, prevented from

voting in any election, the Court shall not, for the

purpose of determining whether the absence or error of,

or omission by, the officer did or did not affect the

result of the election, admit any evidence of the way

in which the elector intended to vote in the election".),

s.365 of the Act provides that an election is not to "be avoided on account of ... the absence or error of or omission by any officer which did not affect the result of the election".

7. It will later be necessary to have regard to certain other provisions of the Act, but it clearly appears from ss.362 and 365 that, apart from bribery or undue influence by the successful candidate, including his or her attempted bribery or undue influence (both of which attract the consequence set out in s.362(1)), 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". 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.

8. The allegations and particulars in the Petition are numbered and lettered in a way that is not easy to follow. This, it seems, is the result of a word processing error. It is convenient to proceed on the basis of the allegations in the order that they appear in the Petition, identifying them by page and paragraph.

"During the Election the electoral rolls used at the

Election were not marked in accordance with the provisions

of the Act".

"Cameron John Webster of 53 Hawkesbury Road, Springwood,

Hospitality worker, cast his vote for the Petitioner at the

polling booth at East Blaxland. He subsequently received

a notice from the Australian Electoral Commission entitled

'Apparent Failure to Vote' at the Election."

This raises no matter affecting any vote that was or might properly have been cast, or the counting of that vote. In terms used in s.365, and at its highest, it raises no more than an "error of or omission by (an) officer which did not affect the result of the election". It is not a matter which can invalidate the election or the return and, thus, this part of the Petition must be dismissed.

11. The second, third and fourth allegations (p.2, par.(b); p.3, par.(c); and, p.3, par.(d), respectively) are allegations of undue influence, illegal practices and the making of false and/or untrue statements on the part of the respondent. The allegations are particularized compendiously, in the sense that each particular "is set forth in support of each of the (allegations)". The particulars concern the distribution of election material as follows:

(i) "(A) circular that stated, inter alia: 'Dr Hewson

says he'd cut the price of petrol. What he doesn't

tell you is that he would increase the price of your

insurance, NRMA fees, repairs, registration. Today

it costs $218 to register a Commodore, under Hewson

it will rise to a staggering $566.80. And then the

State Government will impose another petrol tax to

get back what Hewson is taking from the States.

It's a con] Don't let Hewson take you for a ride'";

(ii) "(A) newspaper ... (called) the 'Black and White

Issue' with the large headlines 'Stop Thief'

... (which) claimed that the Liberal Party and/or

John Hewson intended to axe Medicare; that the

Liberal Party would remove the right to union

representation; that the Liberal Party would

introduce slave wages for youth";

(iii) "(A) document headed 'NSW Young Labor' ... (which)

had annexed to it two self-adhesive stickers

entitled 'Public Phone Price Rises' and 'Postage

Stamp Price Rise'. The document ... stated, inter

alia 'The orange stickers are meant to be put in

public telephone booths and the green ones are meant

to be stuck on post boxes. Please stick them on the

public phones and post boxes nearest your home.'

(As well), under (a) heading 'please read me' (was)

the statement, 'place the stickers neatly so that

they look like official notices'";

(iv) "(A) statement which declared: 'For schools in the

Electorate of Macquarie Fightback would mean larger

class sizes, more expense for parents, less

fairness. Alasdair Webster = Stepback for

Education'";

(v) "(A) statement in a letter distributed to business

and business proprietors in the electorate of

Macquarie: 'While my political opponent is

receiving financial support from special interest

groups, my campaign on the other hand depends on

donations from ordinary Australians'"; and,

(vi) "(L)arge signs" attached to the fences of polling

booths in the electorate of Macquarie stating:

"Stop the GST. Vote Labor".

The Petition variously asserts that the statements were made by the respondent or that she was party to their distribution, that they were untrue or untrue to her knowledge or recklessly so.

12. It is convenient to deal first with the allegation of undue influence which is spelt out in the Petition as an attempt "to wrongfully coerce voters ... by engaging in the (acts particularized)". By s.352(1) of the Act "undue influence" is defined for the purposes of Pt XXII, which is concerned, inter alia, with disputed elections and returns, to mean "a contravention of section 327 of (the) Act or section 28 of the Crimes Act 1914".

13. Section 327 of the Act ((2) Section 327 provides:

"(1) A person shall not hinder or interfere with

the free exercise or performance, by any other person,

of any political right or duty that is relevant to an

election under this Act....)

is concerned with acts which hinder or interfere with the free exercise or performance of a "political right or duty that is relevant to an election under (the) Act", and with discrimination on political grounds. Section 28 of the Commonwealth Crimes Act ((3) Section 28 provides:

"Any person who, by violence or by threats or

intimidation of any kind, hinders or interferes with

the free exercise or performance, by any other person,

of any political right or duty, shall be guilty of an

offence.")

is also concerned with interference with political rights or duties.

14. None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s.327 of the Act or of s.28 of the Crimes Act. There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s.355(a) which requires that the petition "set out ... facts" relied on to justify the relief sought ((4) See Cole v. Lacey [1965] HCA 11; (1965) 112 CLR 45, at pp 49, 51; Soegemeier v. Macklin (1985) 58 ALR 768; Nile v. Wood [1988] HCA 30; (1988) 167 CLR 133, at pp 138-140.). So far as the Petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s.355(a).

15. It is common ground that the allegations of illegal practice and false and untrue statements are based on s.329(1) of the Act. That sub-section provides:

"A person shall not, during the relevant period in

relation to an election under this Act, print, publish or

distribute, or cause, permit or authorize to be printed,

published or distributed, any matter or thing that is likely

to mislead or deceive an elector in relation to the casting

of a vote."

16. It was held in Evans v. Crichton-Browne ((5) [1981] HCA 14; (1981) 147 CLR 169, at p 207-208.) that s.161(e) of the Act, as it then stood, referred "to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment". That decision was based on the ordinary meaning of the words "the casting of his vote" as used in s.161(e). Section 329(1) repeats the substance of s.161(e) and, more significantly, the very words (albeit in degendered form) on which the decision in Evans v. Crichton-Browne was based. Accordingly, it must be construed in the same way.

17. There is nothing in the publications particularized from which it can be concluded that they were likely to mislead or deceive an elector in relation to the casting of a vote within the meaning of s.329(1) of the Act, as distinct from forming a judgment as to the person for whom to vote. This part of the Petition must also be dismissed.

"That, contrary to Section 224 and/or Section 338 of the

Commonwealth Electoral Act with respect to the taking of

votes from hospital patients the said legislation was not

complied with".

"(a) Mr. William Charles Bradbury of 112 Rickard Road,

Warrimoo, a person duly enrolled as a person entitled

to vote in the electorate of Macquarie, was a patient

in Springwood Hospital on Friday 12 March 1993. He

had applied for a postal vote. Persons acting for the

Australian Electoral Commission visited him on that

day and told him to forget about the postal vote, that

they would take his vote for him. He was given no

alternative.

(b) One of the officers from the said Commission asked

Mr. Bradbury for whom he wished to vote. Mr. Bradbury

then indicated that he wished to vote for

Alasdair Webster. The officer then filled in a

voting form for Mr. Bradbury but did not show him the

completed ballot paper at any time."

20. It is not alleged that the ballot paper did not correctly record the vote of Mr Bradbury or that his vote was not counted. There is, thus, no allegation of a fact which could invalidate the election, as required by s.355(a) of the Act. This part of the Petition must also be dismissed.

The sixth allegation: Unlawful Marking of the Ballot Papers

21. This allegation (p.7, par.(c)) is the subject of applications by the petitioner under ss.358 and 360 of the Act, as well as applications by the respondent and the Commission. It is alleged that, contrary to s.338 of the Act, "persons unlawfully marked ballot papers to which they were not entitled".

22. The particular given of this allegation is that:

"There were between 100 and 370 instances where the roll was

marked more than once for particular voters."

The particular does not advance the allegation, for the marking of the Roll in the manner indicated, standing alone, does not prove anything with respect to the casting or counting of votes. However, the particular does serve to identify the matter on which the petitioner relies, namely, that some votes, possibly as many as 370, were cast by persons who had already voted, or, were otherwise not entitled to vote. That raises a matter which, if made out, is capable of affecting the election result, either alone (depending on the number of votes involved) or, perhaps, in combination with other matters raised in the Petition.

23. It was put on behalf of the respondent that the votes involved in this allegation "cannot be identified" and may "have been cast for the Petitioner". And, it was said, there is nothing to "connect (her) in any way with these alleged instances". On the basis of these propositions, it was argued that the allegation should be struck out because it could not be said, for the purposes of s.362(3) of the Act, that the "election was likely to be affected" or that "it is just that the candidate should be declared not to be duly elected". Whether the votes can or cannot be identified will appear if and when evidence is given. And only when the evidence is considered will it be possible to say whether it is "just that the candidate should be declared not to be duly elected". In my view, these are not matters which should lead to summary dismissal of the allegation that votes were cast by persons who had already voted or were otherwise not entitled to vote. That being so, the allegation does not fail for non-compliance with s.355(a) of the Act.

24. For the purposes of s.358(3)(a) of the Act, I am satisfied that this part of the Petition "sufficiently identifies the specific matters on which the petitioner relies". And for the purposes of s.358(3)(b), I see no basis on which it can be said that it would "unreasonably prejudice the interests of another party to the petition" if the petitioner is relieved from compliance with s.355(aa) to the extent claimed in his notice of motion. The petitioner should have access, pursuant to s.360(1)(iii) of the Act, to the Electoral Rolls used in the election for the purpose of providing further and better particulars of this allegation.

The seventh allegation: Misleading or Deceptive Publications

25. This allegation (p.7, par.(b)) expressly asserts a contravention of s.329 of the Act. The particulars given are a repetition of the first, second and fourth particulars provided with respect to the second, third and fourth allegations.

26. For the reasons given with respect to the third and fourth allegations, this part of the Petition must also be dismissed.

The eighth allegation: Misleading or Deceptive Publication

"The first-named Respondent was party to a document handed

out at polling places on the 13th of March, 1993, knowing

such document was likely to mislead or deceive some voters."

"(a) The document stated 'Thinking of Voting Democrat?

... Vote Maggie Deahm.'

(b) The colour and size of the document and the variation

in print size was such that it was misleading to both

booth workers and voters alike, as to the name of the

Democrat Candidate and as such was in breach of Section

329(1) of the Act."

29. A photocopy of the document was tendered in evidence. It was put by counsel for the petitioner that the size and colour of the document was the same as that of the Democrat candidate's how-to-vote card. The purport of the allegation, the particulars and that submission is that voters were likely to vote for the respondent, thinking that they were voting for the Democrat candidate.

30. The document is more extensive than the particulars would indicate. It reads as follows:

! !

! !

!"Thinking of voting !

! Democrat? !

! !

! If you're casting your !

! No. 1 vote for the !

! Democrat candidate, !

! be sure to give your !

! No. 2 vote to the !

! Labor Candidate. !

! !

!Maggie Deahm !

! !

! Number all squares. !

! !

!Your preferences will count. !

! !

!Maggie Deahm will stop the G.S.T.". !

! !

! !

When read as a whole, the document clearly could only influence the formation of a judgment as to the candidate who should receive the elector's second vote. For reasons already given in relation to the third and fourth allegations, it does not, when read as a whole, offend s.329(1). But even if given only a cursory glance, the document could not have been mistaken for a how-to-vote card, whether for the Democrat candidate or anyone else. Thus, contrary to the purport of the allegation, the particulars and the submission for the petitioner, the document could not have affected the casting of a vote in any manner amounting to a contravention of s.329(1) of the Act. In these circumstances, this part of the Petition must also be dismissed.

31. These allegations (p.10, pars (c) and (d)) are:

"That there was a breach of Section 106 of the Act in that

insufficient attention was paid by the (Commissioner) or

his officers, agents or staff to ensuring that persons not

entitled to enrol for the electoral division of Macquarie

did not, in fact, enrol.

Responsible officers of the (Commissioner) acted contrary to

the provisions of Section 102(1) of the Act by failing to

satisfy themselves adequately that claimants for enrolment

in the Electorate of Macquarie were entitled to be so

enrolled."

"(a) Persons voted who were not entitled to vote in the said

electorate(.) The roll for the Electorate of Macquarie

contained the name of persons;

(b) who had died up to and more than two years prior to the

date of such election;

(c) who were recorded in the rolls as having lived in

residences that did not exist;

(d) who were recorded in the rolls as having their places

of residence at vacant blocks of land;

(e) who did not exist at all;

and that, therefore, the Electoral rolls for the

Electorate of Macquarie were obviously defective to a

material extent and were unable, therefore, to provide

the guarantees given by Sections 30 and 41 of the

Commonwealth of Australia Constitution Act and/or were

inconsistent with other provisions of the Act and/or

were inconsistent with the common law".

33. Despite the way in which these parts of the Petition are set out, it is clear that the petitioner is making two quite separate allegations. The first is that the Electoral Roll for the Division of Macquarie contained names that should not have been there. The second is that, by posing as persons on the Roll when those persons did not exist, various people voted when they were not entitled to.

34. The allegation with respect to the Electoral Roll can be dealt with shortly. A mere allegation that there are or were names on the Roll that should not be there, whether or not made by reference to ss.30 and 41 of the Constitution, by reference to other provisions of the Act or by reference to the common law, is not an allegation of a matter likely to affect the election result. It can only become so if there is a further allegation that persons voted who were not entitled so to do. And this is what the Petition does, albeit that the assertion appears in what are said to be "PARTICULARS" of the allegations with respect to the Electoral Roll.

35. The purport of the allegation that people voted in the names of people who did not exist sufficiently appears from the Petition. Subject only to particularizing the number of votes which are said to be involved, this is a matter which, if established, is capable of affecting an election result. No claim has been made for relief under s.358(2) from compliance with s.355(aa) with respect to the number of votes said to be involved in this allegation, but I see no reason why relief should not be granted if sought.

36. So far as these parts of the Petition raise allegations with respect to the Electoral Roll only, they should be dismissed. That part which alleges that "(p)ersons voted who were not entitled to vote" should stand, including the particulars which indicate that the votes involved are those which were cast in the names of persons who were on the Electoral Roll but did not, in fact, exist.

"Sections 30 and 41 of The Constitution have not been

complied with in the election for the electorate of

Macquarie."

It is particularized as follows:

"The guarantee provided by The Constitution of one vote

per Elector has not been complied with during the said

Election".

38. This allegation, and the particulars given of it, may suggest to an astute reader that some people voted twice. The petitioner has not sought relief from compliance with s.355(aa) in respect of this allegation and I assume, therefore, that he does not wish to raise any matter affecting or bearing upon any particular votes. On this basis, the allegation satisfies neither sub-s.(a) nor sub-s.(aa) of s.355, and must be dismissed.

"That Section 99(5) and 106 of the Commonwealth Electoral

Act is invalid in that it is inconsistent with other

provisions of the same Act".

"Section 106 of the Commonwealth Electoral Act provides

that the name of any person who has been placed on a roll

for a Division by means of any false statement can be

subsequently removed from that roll. Section 99 provides

that the validity of any enrolment shall not in any case be

questioned on the ground that the person enrolled has not

in fact lived in the subdivision for a period of one month.

These two provisions are inconsistent with each other,

both sections are, therefore, of no effect; that since the

election for the seat of Macquarie was based partly on this

invalid legislation the election for that seat was also

invalid".

41. The short answer to what is asserted in this part of the Petition is that, in accordance with ordinary principles of construction ((6) See Ebbs v. Boulnois (1875) 10 LRChApp 479, at p 484; Reg. v. V.AT. Tribunal; Ex parte Happer (1982) 1 WLR. 1261, at p 1267; Re Media, Entertainment and Arts Alliance; Ex parte the Hoyts Corporation Pty. Ltd., unreported, High Court of Australia, 11 August 1993, at p 5.), if the provisions involved conflict with each other, one must be construed as qualifying the other so that both have meaning and effect. So construed, there is no question of inconsistency and, more to the point, no question of invalidity as asserted in the Petition. That being so, the very foundation of the claim that the election is invalid falls away. Accordingly, this part of the Petition must also be dismissed.

"Persons voted in the Election in the Electorate of

Macquarie who were not entitled so to vote."

"At least 40 persons who were enrolled to vote for the

Election were enrolled in the Electorate of Macquarie in

circumstances where they had resided in the Electorate for

a period less than one month prior to the date of enrolment

contrary to Section 99(1)."

44. It was argued for the respondent that this allegation must be struck out because it is not one that can be maintained in the face of s.361(1) of the Act. Section 361(1) of the Act is as follows:

"The Court shall inquire whether or not the petition is

duly signed, and so far as Rolls and voting are concerned

may inquire into the identity of persons, and whether their

votes were improperly admitted or rejected, assuming the

Roll to be correct, but the Court shall not inquire into the

correctness of any Roll."

The petitioner argued that, so far as it prevents the Court from inquiring into the correctness of the Roll, s.361(1) of the Act is unconstitutional. Indeed, the petitioner claims to this effect in his Petition.

45. The issue before the Court on the return of the notices of motion was whether the constitutional validity of s.361(1) of the Act, so far as it prevents inquiry into the correctness of the Roll, should be determined by the Court as presently constituted or should be referred to the Full Court. However, it may be that no question involving s.361(1) of the Act arises because of s.99(5) to which reference was made in the last allegation.

46. Section 99 of the Act imposes a residential requirement upon enrolment and transfer of enrolment as follows:

"(1) Any person qualified for enrolment ((7) See, as to

entitlement to enrol, s.93 of the Act.), who lives in a

Subdivision ((8) See, as to Subdivisions, s.79 of the Act.), and has

so lived for a period of one month last past, shall be entitled

to have his or her name placed on the Roll for that Subdivision.

(2) Any elector whose name is on the Roll for any

Subdivision and who lives in any other Subdivision, and has

so lived for a period of one month last past, shall be

entitled to have his or her name transferred to the Roll for

the Subdivision in which he or she lives."

It is in that context that s.99(5) provides:

"The validity of any enrolment shall not in any case be

questioned on the ground that the person enrolled has not in

fact lived in the Subdivision for a period of one month."

47. The intended effect of s.99(5) is that if a person who lives in a Subdivision is otherwise entitled to be enrolled for that Subdivision, that person's enrolment is valid, notwithstanding that he or she has not lived there for a month prior to enrolment. Even if there is some difficulty in reconciling s.99(5) with s.106, as suggested by the petitioner in his last allegation, it would not seem to involve any consequences with respect to the intended operation of s.99(5) in the circumstances of this case.

48. Notably, s.106 confers a power on a Divisional Returning Officer to remove a name from the Electrol Roll in certain circumstances. It provides:

"Where a person, whose name has been placed on the Roll

for a Division, is not entitled to enrol for that Division

and that person secured enrolment pursuant to a claim in

which the person made a false statement, the Divisional

Returning Officer for that Division, upon receipt of a

certificate from the Australian Electoral Officer setting

forth the facts, may, at any time between the date of the

issue of the writ for an election for that Division, and

before the close of the polling at that election, remove the

name of that person from that Roll."

49. It may be questioned whether, as a matter of construction, s.106 of the Act has any operation in circumstances involving s.99(5). But assuming it does, it would seem that the combined effect of s.99(5) and s.106 is that a person who lives in a Subdivision, who is otherwise entitled to be enrolled for that Subdivision, and whose name is on the Roll at the time of the election, is, at least for practical purposes ((9) There may be a question whether s.99(5) validates or merely avoids the consequences that would otherwise attach to contravention of s.99(1).), validly enrolled and, thus, entitled to vote, notwithstanding that he or she had not lived in that Subdivision for one month prior to his or her enrolment or, for that matter, prior to the election. And if s.106 does not operate, it would appear that there is no question but that s.99(5) operates to the effect already indicated.

50. It is clear from the particulars given of this allegation that it is concerned only with persons to whom s.99(5) applies. That being so, it appears that they were, for practical purposes, validly enrolled and entitled to vote and, thus, that no question arises involving s.361(1). However, this matter was not fully explored in argument and, accordingly, the proper course is for the matter to be relisted for further argument on this aspect of the Petition.

"The Commonwealth Electoral Act condones illegal

activities."

"Section 99(5) prohibits the questioning of the enrolling

of a person to vote in circumstances where such enrolment

has been obtained contrary to Section 99(1); that such

illegality existed in and during the conduct of the Election

for the seat of Macquarie and that, therefore, the Election

for that seat was void."

53. As explained earlier, s.99(5) appears to operate, for practical purposes, to validate enrolments which would otherwise be defective on account of electors not having resided in the Subdivision concerned for a month prior to enrolment so that persons who fall within its terms are validly enrolled and entitled to vote. At least, that would seem to be the case if their names are on the Roll at the time of the election. On that basis, the allegation raises no question of illegal practice, undue influence or bribery or corruption and, as they are the only matters on which the Court can act under s.362 of the Act, it raises no matter on which the Court could invalidate the election or return ((10) See Hudson v. Lee, unreported, Court of Disputed Returns, 6 August 1993, at pp 3-4.). But even if that is not the correct approach to s.99(5), this allegation does not involve any statement of fact bearing on the casting or counting of any vote and, thus, does not raise any matter that could invalidate the election result. It must, on that account, be dismissed for non-compliance with s.355(a) of the Act.

The Fifteenth allegation: Constitutional Invalidity

"Section 361(1) of the Act is invalid."

"(a) That section provides that the Court shall not inquire

into the correctness of any Roll. This is contrary to

the intention of Sections 30 and 41 of the Constitution

in that Section 361(1) thereby does not provide the

means of guaranteeing the requirements of Sections

30 and 41 of the Constitution.

(b) Additionally, Section 361(1) of the Act is inconsistent

with Section 93 of the Act by denying the Court the

ability to enquire whether the requirements of Section

93 are complied with or not."

56. The only matter in the Petition which might conceivably raise a question involving s.361(1) of the Act is the thirteenth allegation which, as it has been seen, claims that, contrary to s.99(1), persons were enrolled for the electorate of Macquarie, notwithstanding that they had not been resident for the month prior to enrolment in the Subdivision concerned. As already pointed out, the effect of s.99(5) seems to be that, for practical purposes, they were validly enrolled and, thus, entitled to vote. If that is so, it seems that no question arises involving s.361(1). I add, for the sake of completeness, that there is nothing in the Petition to suggest that persons who were not qualified to enrol under s.93 of the Act were enrolled or, more to the point, voted in the election for the Division of Macquarie.

57. As the aspect was not fully argued, the matter must be relisted for further hearing directed to the question whether any issue arises involving s.361(1) of the Act.

58. This allegation (p.13, par.(c)) is one in respect of which the petitioner seeks to be relieved, under s.358(2) of the Act, from compliance with s.355(aa). The allegation is as follows:

"Provisional votes for the Election in the Electorate of

Macquarie were unlawfully excluded from being counted."

"That, in accordance with Section 235 of the Commonwealth

Electoral Act persons entitled to vote as provisional

voters cast their vote according to the rights accorded to

them by the Act and by Section 41 of The Constitution;

yet a substantial number of such votes were subsequently

disallowed wrongfully, denying such disallowed voters their

right to have their votes counted and considered as part of

the Election process according to law, and, therefore, that

the Election for the Electorate of Macquarie is invalid.

The total number of provisional voters was approximately

1200 and about 800 were unlawfully disallowed."

60. This particular does no more than identify the number of votes involved and state the consequences of the votes not being counted. Stripped of these details, the allegation is no more than a bare assertion that the votes were unlawfully disallowed. And it clearly appears from the submissions made on behalf of the petitioner that he has no facts on which to base an assertion to that effect. Rather, he hopes to be able to make some case in that regard by gaining access to nominated documents, being:

"(The) envelopes containing provisional votes cast in the

election;

(the) declarations which accompanied provisional votes cast

in the election; (and,)

(the) documents supporting and recording of the

disallowance of provisional votes cast in the election".

61. As earlier pointed out, the authorities clearly establish that s.355(a) of the Act is not satisfied by a mere assertion of some contravention of the Act ((11) See above at fn.(4).). And it is not satisfied merely by asserting that provisional votes were unlawfully disallowed.

62. This part of the Petition must be dismissed for non-compliance with s.355(a) of the Act. The question of relief under s.355(aa) and access to the documents above identified, thus, becomes academic. To that extent, the petitioner's notice of motion must be dismissed.

"There was hindrance or interference with the free exercise

or performance of a political right or duty that is relevant

to the Election, in contravention of Section 327(1)".

"(a) Mr. D. Hennesy of 5 Eucalypt Road, Springwood, a person

duly enrolled to vote in the Electorate of Macquarie

was about to enter the polling booth at Springwood

Public School, at about 12.30 pm for the purpose of

voting. He was then accosted by a person handing out

Labor how to vote forms. The man said to Mr. Hennesy:

'This is how you vote for Labor.' Mr. Hennesy said

he was not interested in voting Labor. The man then

abused Mr. Hennesy, approached him in a threatening

manner, shouted abuse at him, called him a fuck-wit,

told him to 'vote Labor or else,' and continued to

shout other abuse and obscenities.

(b) It is claimed that this behaviour was likely to affect

the outcome of the Election for the Electorate of

Macquarie."

65. It is not alleged that the respondent committed the acts in question and, thus, committed or attempted to commit an act contravening s.362, that being undue influence as defined in s.352(1) of the Act. If it were, s.362(1) of the Act would apply. As it is, the allegation is one which falls within s.362(3) and, thus, can only result in a declaration that the respondent was not duly elected or that the election was void if "the result of the election was likely to be affected, and ... it is just that the candidate should be declared not to be duly elected or that the election should be declared void".

66. There is nothing to suggest that the events in question had any bearing on the vote cast by Mr Hennesy or any other person. There is, then, no allegation of a fact which could "invalidate the election or return" as required by s.355(a) of the Act. Accordingly, this part of the Petition must also be dismissed.

"The requirements of the ballot paper were confusing."

"The form of the ballot paper in requiring the number

1 inserted in the voter's Senate choice yet requiring

several squares to be numbered by the voter for the House

of Representatives resulted in a large number of voters

marking 1 for the Senate choice but failing to mark boxes

for the House of Representatives, which caused such ballot

papers to be marked invalid; that that was a rejection of

the voters' clear intention of how they wanted to vote and

was, therefore in breach of Section 364 of the Commonwealth

Electoral Act and/or Section 41 of the Constitution,

and that, therefore, the result of the Election in the

Electorate of Macquarie was invalid."

69. Neither s.364 of the Act nor s.41 of the Constitution has any bearing on the matter alleged: s.364 is concerned with the procedures of the Court ((12) Section 364 of the Act provides:

"The Court shall be guided by the substantial

merits and good conscience of each case without regard

to legal forms and technicalities, or whether the

evidence before it is in accordance with the law of

evidence or not.") ; s.41 of the Constitution ((13) Section 41 of

the Constitution provides:

"No adult person who has or acquires a right to

vote at elections for the more numerous House of

Parliament of a State shall, while the right

continues, be prevented by any law of the Commonwealth

from voting at elections for either House of the

Parliament of the Commonwealth.")

is concerned with the protection of the right to vote in federal elections ((14) Reg. v. Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254, at pp 260, 279, 280; Muldowney v. Australian Electoral Commission, [1993] HCA 32; (1993) 114 ALR 513, at p 516.).

70. It clearly emerged in the course of argument that the ballot paper, for the House of Representatives election for the Division of Macquarie, complied with s.209 of the Act and, in particular, with Form F in Sched.1. The allegation, thus, raises no matter which could possibly ground a declaration that the respondent was not duly elected or that the election was void. It raises no contravention of the Act, which, by virtue of the definition in s.352(1), constitutes an illegal practice; it certainly raises no allegation of bribery, corruption or undue influence. And these are the only matters on which the Court can act under s.362 ((15) See above at fn.(10).). There is, then, no allegation of any fact which, in terms of s.355(a), could "invalidate the election or return". This part of the Petition must also be dismissed.

The nineteenth allegation: False and Defamatory Statements

"The (respondent) published false and defamatory statements

in relation to the personal character or conduct of the

Petitioner."

72. The particular given of this allegation is that:

"The said (respondent) was guilty of breach of Section

350(1) and/or of the Commonwealth Electoral Act in that she

published an advertisement in a widely-circulated newspaper

that the Petitioner would not engage in a public debate with

the (respondent), which statement was false to the knowledge

of the (respondent) and was defamatory of the Petitioner,

and the (respondent) published other defamatory material of

the Petitioner".

73. Section 350(1) of the Act makes it an offence to "make or publish any false and defamatory statement in relation to the personal character or conduct of a candidate". Assuming that to have occurred, it is nonetheless necessary, before an order can be made under s.362(3), that there be some act or omission by which "the result of the election was likely to be affected". There is no allegation of any matter of that kind and, thus, no allegation of fact which would, in terms of s.355(a), "invalidate the election or return". This part of the Petition must also be dismissed.

"Section 229(1) of the Act was not complied with at polling

booths for the Electorate of Macquarie in that not all

voters were asked 'Have you voted before in this Election?',

therefore possibly affecting the outcome of the election".

75. This stops short of an allegation that people voted twice or, for that matter, of an allegation of any act or ommission relating to the actual casting or counting of votes. It thus raises no fact which, in terms of s.355(a), could "invalidate the election or return". This part of the Petition must also be dismissed.

The twenty-first allegation: Invalid Election Result

"The result of the election for the seat of Macquarie, and,

the result of the election Australia-wide is invalid."

As earlier indicated, the petitioner no longer claims that "the election Australia-wide (was) invalid", and concedes that this part of the Petition must be struck out. However, he presses the first part of the claim and, as well, seeks to be excused from compliance with s.355(aa) in relation to it. Moreover, the petitioner seeks access to various documents in relation to the claim, being:

"(The) documents recording the total number of valid votes

cast for the Senate and for the House of Representatives in

the Division of Macquarie; (and,)

(the) documents recording the issue of incorrect ballot

papers to voters enrolled in the Division of Macquarie".

77. The particular given of this allegation is that:

"There was such a discrepancy in the recorded votes for the

Senate and the House of Representatives that there is

demonstrated serious irregularities in the voting, counting

or electoral procedures applicable to the election.

Australia-wide there (were) 53,403 less votes declared for

the House of Representatives than the Senate, of which

19,474 relate to New South Wales. Such votes having been

lost, destroyed or otherwise not accounted for, therefore

affecting the outcome of the election."

It was put in the course of argument that the discrepancy or some part of it resulted from or may have resulted from incorrect ballot papers being issued to voters ((16) It appears that this is the explanation for that part of the petitioner's supplementary submissions, supporting his notice of motion, which seeks access to documents said to record this event.). This complaint was not made in the Petition and cannot be made now, the time for lodging a Petition having expired ((17) See s.355(e) of the Act and see Cameron v. Fysh [1904] HCA 49; (1904) 1 CLR 314, at p 316; In re Berrill (1978) 52 ALJR 359, at p 360; 19 ALR 254, at p 255; Pavlekovich-Smith v. Australian Electoral Commission, unreported, Court of Disputed Returns, 17 August 1993, at p 3; Sykes v. Australian Electoral Commission, unreported, Court of Disputed Returns, 17 August 1993, at p 4.).

78. At best, the matters raised in this part of the Petition do no more than suggest that one or more provisions of the Act relating to the casting and counting of votes may have been contravened. On no view do they constitute a statement of "the facts relied on to invalidate the election or return", within the meaning of s.355(a) of the Act ((18) See above at fn.(4).). Accordingly, this part of the Petition must also be dismissed. The question of relief from compliance with s.355(aa) becomes academic, as does the question of access to the documents described above. The petitioner's notice of motion with respect to these matters must be dismissed.

"The right of political freedom as guaranteed by the

Constitution was contravened during the election."

"Section 329 of the Commonwealth Electoral Act contravenes

the right of political freedom as guaranteed by the

Constitution and by the general law and is therefore invalid

and consequently, voting at the general election was

invalid."

81. As earlier mentioned, s.329(1) of the Act is concerned with publications which are "likely to mislead or deceive an elector in relation to the casting of a vote", as explained in Evans v. Crichton-Browne ((19) See above at fn.(5).). As there are no facts alleged in the Petition which could constitute a contravention of s.329, no question of its validity can arise. No issue is presented for determination by or under this allegation, and it must be dismissed.

82. The notices of motion of the respondent and the Commissioner must be stood over for the hearing of further argument as to the thirteenth and fifteenth allegations in the Petition (p.12, par.(b) and p.13, par.(b), respectively). Subject to that and save to the extent of the sixth allegation that "persons unlawfully marked ballot papers to which they were not entitled" (p.7, par.(c)) and that part of the ninth and tenth allegations to the effect that "(p)ersons voted who were not entitled to vote" (p.10, par.(a)), the Petition must be dismissed. There will be ancillary orders with respect to the petitioner's notice of motion so far as it concerns the sixth allegation. Otherwise that notice of motion will be dismissed.

Webster v Deahm [1993] HCA 38;

At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223; (1993) 67 ALJR 781 (3 September 1993)

Parties

Legislation Cited (2)

Cases Cited (10)