Whitby v Garlett

Statutory Framework 7 For the purposes of the ATSIC Act, Australia, other than the Torres Strait area, is divided into thirty five regions the boundaries of which are as determined from time to time by the Minister in writing (s 91(1)). A Regional Council is established for each region (s 92(1)). Regional Councils have functions defined in the Act which include the formulation and revision from time to time of a regional plan for improving the economic, social and cultural status of Aboriginal and Torres Strait Islander residents of the region (s 94(1)(a)). Regional Councils also have the function of assisting, advising and cooperating with the Commission and other bodies in the implementation of the regional plan (s 94(1)(b)), making proposals for Commission expenditure in relation to the region (s 94(1)(c)), receiving and passing on to the Commission and other bodies the views of Aboriginal persons and Torres Strait Islanders about the activities in the region of the Commission and other bodies (s 94(1)(d)) and representing Aboriginal and Torres Strait Islander residents of the region and acting as an advocate of their interests (s 94(1)(e)). 8 Regions are grouped into zones for the purposes of the Act (s 130(1)). Members of the Regional Councils of the regions included in a zone elect one of their number to represent the zone on the Aboriginal and Torres Strait Islander Commission (s 131 and s 27). Division 4 of Part 3 of the Act provides for Regional Council elections which are to be conducted by the Australian Electoral Commission in accordance with the provisions of the Act and the "Regional Council Election Rules" in force at the beginning of the election period (s 100). The rules may provide for the division of a region into such wards as are specified, set out the boundaries of each ward and fix the designated number for each ward so specified (s 100A(1)). The designated number is the number of members of the Regional Council for the ward (s 100A(3)). 9 By s 101 of the Act a person is entitled to vote at a Regional Council ward election if and only if the person is an Aboriginal person or a Torres Strait Islander person and is either on the Commonwealth Electoral Roll and within the ward concerned or is entitled to vote at the election pursuant to rules made under subs 113(3). Voting at Regional Council elections is not compulsory (s 108). It is to be by secret ballot (s 109). The method of voting is set out in s 110 as follows: "110(1) A voter shall cast a vote at a Regional Council election by marking the ballot paper so as to show the order of the voter's preference for the candidates. (2) A ballot paper is formal if and only if: (a) the authorised electoral officer is satisfied that it is an authentic ballot paper; (b) it indicates the voter's first preference for one, and only one, candidate; and (c) it does not have upon it any identifying mark. (3) A ballot paper that is formal shall be given effect according to the voter's intention so far as that intention is clear. (4) In this section: identifying mark means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper (whether or not in contravention of any law) by a person involved in conducting the election." The Minister is authorised, after consulting with the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner to make rules, not inconsistent with the Act, prescribing the manner in which Regional Council elections are to be conducted (s 113(1)(a)). 10 Division 8 of Part 3 deals with disputed elections. It has only one section, that is s 140 in the following terms: "The provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election, a TSRA election or a zone election." Clause 2 of Schedule 4 specifies the method of disputing elections thus: "2(1) The validity of any election, or of the declaration of a poll for an election, may be disputed by petition addressed to the Court and not otherwise. (2) The Court has jurisdiction to try election petitions. (3) The jurisdiction of the Court to try election petitions may be exercised by a single judge of the Court." The Court is defined in cl 1 of Schedule 4 as "the Federal Court of Australia". Election means a "Regional Council election, a TSRA election or a zone election". The requisites of election petitions are set out in cl 3: "3. Subject to clause 5, every election petition shall: (a) set out the facts relied on to invalidate the election or declaration; (b) contain a request for the relief the petitioner claims to be entitled to; (c) be signed by a candidate at the election in dispute or by a person who was, or who claimed to be, qualified to vote at that election; (d) be attested by 2 witnesses whose occupations and addresses are stated." The deadline for filing a petition is specified in cl 3A: "3A(1) Any petition disputing an election held as part of a general election must be filed in a Registry of the Court within 40 days after the last day on which a poll is declared in relation to the general election. (2) Any petition disputing any other election must be filed in a Registry of the Court within 40 days after the poll is declared in relation to the election. (3) In this clause: general election means: (a) a round of Regional Council elections; or (b) a round of zone elections; or (c) a TSRA election for all wards." Clause 6 specifies that no proceedings shall be had on an election petition unless the requirements of clauses 3, 3A and 4 (providing for a deposit as security for costs) are complied with. That clause also imposes an obligation to comply with cl 5 which, however, relates to election petitions filed by the Electoral Commission. 11 The powers of the Court are defined in cl 10 and, in material parts, are expressed thus: "10(1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers: . . . (e) to declare that any person who was returned was not duly elected; (f) to declare any candidate duly elected who was not returned; (g) to declare the election absolutely void; (h) to dismiss or uphold the petition in whole or in part." The Court is precluded from inquiring into the correctness of the Commonwealth Electoral Roll (s 11). The Court may declare an election void in cases of attempted bribery or the exercise of undue influence. 12 Clauses 12 and 14 of Schedule 4 relate to the avoidance of elections for illegal practices and errors and omissions by officers respectively. Clause 12 provides: "12(1) If the Court finds that a candidate at an election has committed or has attempted to commit bribery or undue influence, the candidate's election, if he or she is a successful candidate, shall be declared void. (2) No finding by the Court shall bar or prejudice any prosecution for any illegal practice. (3) The Court shall not declare that any person returned 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 his or her knowledge or authority; 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." Clause 14 provides: "14(1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of the poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election. (2) 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." 13 The term "illegal practice" is defined in cl 1 of Schedule 4 as follows: "illegal practice means a contravention of this Act, the Regional Council election rules, the TSRA election rules or the zone election rules." 14 Part 4 of Schedule 4 provides in cl 23: "The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not." All decisions of the Court shall be final and conclusive and without appeal and shall not be questioned in any way (cl 24). 15 Regional Council election rules have been made pursuant to the provisions of the Act. It is not necessary for present purposes however to set out the relevant provisions of those rules.

General Provisions Governing Petitions 16 A petition is the only way in which the validity of an election or the declaration of a poll may be disputed (cl 2). The jurisdiction to try the petition is vested in the Federal Court (cl 2(2) and (1)(1)). It is a condition of that jurisdiction that the petition comply with the requirements of cl 3 as to form and content, the requirements of cl 3A as to time limits for lodgment and the requirements of cl 4 for a deposit as security for costs (cl 6). As with the Commonwealth Electoral Act 1918, the ATSIC Act contains no provision for an extension of the time allowed for the filing of a petition - Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409; Nile v Wood (1988) 167 CLR 133 at 137. 17 The requirement of cl 3(a) is that the petition shall set out the facts relied on to invalidate the election or declaration. If on the face of the petition the facts are insufficient to invalidate the election, then the petition is liable to be dismissed or stayed on the basis that the Court lacks jurisdiction. That is the case in respect of the similarly worded s 355(a) of the Commonwealth Electoral Act. In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 649, referring to s 355(a), Dawson J said: "The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity." The requirement of sufficiency will also apply to facts relied upon severally rather than collectively to invalidate the election. Importantly, the statement of facts relied on cannot be amended if, as in the present case, more than forty days have elapsed since the declaration of the poll. If such amendment were possible then the time limit provisions would be evaded - Sykes v Australian Electoral Commission at 648. 18 Recently in Rudolphy v Lightfoot (1999) 167 ALR 105 at 107, dealing with like provisions in the Commonwealth Electoral Act, the High Court said: "The requirement that the petition be filed within the 40 day period specified in s 355(e) is to be read with the limited disputation of any election or return permitted by s 353(1) and the interdiction in s 358(1) of proceedings on a petition unless requirements, including that in s 355(e), are complied with. Section 355(e) stipulates an essential condition or jurisdictional requirement for the Court of Disputed Returns. In particular s 358(1) does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns." Their Honours there cited with approval the observations of Windeyer J in Australian Iron Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-9 that the forty day requirement under the Commonwealth Electoral Act 1918 does not bar an existing cause of action but rather imposes a condition "which is of the essence of a new right". The purpose of the time limit identified by their Honours in respect of the Commonwealth Electoral Act also applies to the electoral provisions of the ATSIC Act, ie: "… to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns." 19 The provision of particulars cannot be relied upon to cure a deficiency in the facts set out in the petition. If such a procedure were open, it would amount to amending the petition and, if the particulars were provided outside the forty day time limit, thereby avoiding the time limit condition. As has been observed time and again in other contexts, particulars cannot be used to fill gaps in the principal pleading which ought to have been filled by appropriate statements of the various material facts which together constitute a cause of action - Bruce v Odhams Press Limited [1936] 1 KB 697; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 419. 20 In the event of an allegation of an illegal practice the effect of cl 12(3) of Schedule 4 is that an election cannot be declared void on the grounds of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority or 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. Importantly, to the extent that the facts alleged in the petition assert an illegal practice in categories (a) or (b) in cl 12(3) it is necessary that facts are also alleged which, if made out, could satisfy the Court that the result of the election was likely to be affected. Positive satisfaction in that regard is a condition of its power to invalidate the election. 21 Clause 14 headed "Immaterial Errors not to Vitiate Elections" precludes the Court from avoiding any election on account, inter alia, of any error of or omission by, any officer which did not affect the result of the election. The expression of this condition in the negative distinguishes cl 14 from cl 12. The petitioner is not required to allege facts showing that such an error or omission affected the election. This proposition derives originally from dicta of Taylor J in Cole v Lacey (1965) 112 CLR 45 at 48-9. In that case Taylor J referred to s 194 of the Commonwealth Electoral Act 1918 as it then stood. It had previously been considered, in different form, by Isaacs J in Kean v Kerby (1920) 27 CLR 449. Referring to an English statute which required that "non-compliance…did not affect the result of the election" Isaacs J said at 458: "In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid." Taylor J's view, based upon what Isaacs J had said, was then expressed at 48: "…on the assumption that an unspecified number of informal votes were admitted in the course of the scrutiny, it was not incumbent upon the petitioner to allege, or at a later stage, to prove that they were sufficient in number or such as to affect the result of the election. I do not, of course, mean to say that if it appeared from the petition that they were insufficient in number to affect the result the petition should proceed. But as I understand the position the petitioner, in a matter such as the present, is not obliged to prove that the result of the election was affected and, therefore, not under any obligation to allege in his petition facts showing that it was or that it is probable that it was." In Sykes v Australian Electoral Commission, Dawson J considered s 365 of the Commonwealth Electoral Act 1918 which provided: "No election shall be avoided…on account of the absence or error of or omission by any officer which did not affect the result of the election." His Honour noted that the analysis of Taylor J was supported by the Second Reading Speech for the Commonwealth Electoral Bill 1922 and that Starke J in construing a similarly worded provision in Varty v Ives [1986] VR 1 at 10-16, had come to the same conclusion. Nevertheless as Dawson J pointed out, originally there was no definition of "illegal practice" in the Commonwealth Electoral Act and in the absence of a definition the wrongful rejection of a nomination would constitute an "error or omission" rather than an "illegal practice". The definition of "illegal practice" was added by amendment in 1983 - Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 128. His Honour said, at 652: "There can, I think, be no doubt that the wrongful rejection of a nomination is a "contravention of the Act" and it must follow, in accordance with the definition, that it is an illegal practice. That means that s 362 is the more specific section and is the section which operates where applicable in preference to s 365. Under s 362 the Court, before granting relief, must be satisfied that the result of the election was likely to be affected by the illegal practice. Under s 355(a) the petitioner must set out the material facts upon which he relies to establish that likelihood." See also Hudson v Lee (1993) 177 CLR 627 at 631 where Gaudron J said: "Although there is no express statement in the Act to that effect, s 362, in my view, provides exhaustively as to the general grounds on which an election may be invalidated or declared void." The application of these observations to cls 12(3) and 14(1) of Schedule 4 was accepted by O'Loughlin J in Australian Electoral Commission v Lalara (1994) 53 FCR 156 at 165. See also Pettit v Atkinson (1994) 50 FCR 174 at 179 (Gray J). 22 What emerges from these authorities is that where the petition alleges facts capable of characterisation as disclosing an illegal practice it will be caught by cl 12(3) and the petitioner will be required to allege facts showing that the election result is likely to have been affected. If the facts alleged do not amount to an illegal practice but to an official error or omission then a positive allegation of that kind is not required. 23 It is necessary now to consider each of the facts set out in the petition which are, on the face of it, relied upon severally, but also, according to counsel for the petitioner, collectively. In dealing with the Australian Electoral Commission's motion, I confine my consideration to the facts as they appear on the face of the petition. If they are sufficient, resort to the particulars is unnecessary. If they are insufficient, resort to the particulars will not rectify that deficiency.

Ground 1 - Enrolment Forms Not Attested 24 The Commission submits that the facts stated in par 1 of the petition are not sufficient if made out to invalidate it. Thus no fact is stated as to: (i) whether the electoral enrolment forms pertained to the Perth Regional Council election; (ii) how many of the forms were not attested; (iii) in what respect the attestation was not in accordance with s 98 of the Commonwealth Electoral Act; (iv) whether the electoral enrolment forms in question were accepted by the second respondent to cause the persons named in the enrolment forms to be enrolled; (v) the identity of the persons invalidly enrolled and thus the wards in which their votes were or would have been case; (vi) how and to what extent this fact, if made out, would have affected the results of the election. In any event, it is said cl 11 of Schedule 4 is said to prevent the Court from inquiring into the correctness of the Commonwealth Electoral Roll so that non-compliance with s 98 of the Commonwealth Electoral Act or otherwise is not a matter which the Court may consider for the purposes of the petition. 25 The petitioner argues that failure to attest the electoral enrolment forms in accordance with s 98 is the essential fact. Given that the petition concerns the election of the Perth Regional Council there is said to be a sufficient basis for inferring that the electoral forms in question also related to that election. 26 In my opinion the facts relied upon are insufficient to invalidate the election. The level of generality of the assertion renders it virtually meaningless. Moreover it does appear to require an inquiry into the state of the Commonwealth Electoral Roll which is precluded by cl 11 of Schedule 4.

Ground 2 - Not all Votes Duly Cast were Counted 27 Counsel for the Commission submits this allegation is also insufficient as no fact is stated as to: (i) the number of votes "duly cast" but not counted; (ii) the wards in which the votes were cast, but not counted; (iii) whether or why the non counting of the votes contravened the Act, the regulations or the Regional Council Election Rules; and (iv) how, if at all, the non counting of the votes affected the election results. 28 Ground 2 is characterised by the Commission as a bare assertion which itself cannot satisfy cl 3(a). In Webster v Deahm (1993) 116 ALR 223, Gaudron J was dealing with a petition under the Commonwealth Electoral Act 1918 alleging, inter alia, undue influence of which she said, after referring to particulars which had been delivered: "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. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a)." (at 227) In this case the petitioner says that the fact alleged relates to omissions by officers contrary to cl 14(1) and that it is not incumbent upon her to allege or at a later stage to prove that the alleged irregularities affected the result of the election. This would be so if what were alleged were not an illegal practice. The allegation, however, is so devoid of particularity that it does not exclude the possibility that what is asserted is an illegal practice as distinct from mere error or omission by an officer. No factual basis for the contention that some votes cast were not duly counted is disclosed. In my opinion. this bare assertion is not sufficient of itself to invalidate the election. In particular it does not contain sufficient particularly to indicate whether it is cl 12 or cl 14 that would apply to it.

Ground 3 - Non-inclusion of a Vote in the Walunga Ward 29 This ground asserts a contravention of Rules 77 and 78 of the Regional Council Election Rules. It therefore alleges an illegal practice within the meaning of that term as defined in cl 1. Even if the facts stated in this ground were proven, they would not establish that the election was or was likely to be affected. In particular no fact is stated as to the election results for the Walunga Ward. Ground 3 addresses only the election of Regional Councillors from the Walunga Ward and provides no basis to invalidate the election.

Ground 4 - Double Voting 30 Ground 4 involves an allegation of a contravention of Rule 26 of the Regional Council Election Rules and therefore alleges an illegal practice. Even if the facts stated in ground 4 were proven, they would not establish that the election was or was likely to be affected. The ground addresses the election of Regional Councillors from the Bibra Ward. No facts were stated as to election results for the Bibra Ward or whether any or all of the four votes in question were included in the count. No basis is shown for invalidating the election.

Ground 5 - Hindrance in the Casting of Votes 31 While it is said that persons were hindered or interfered with in the free exercise of performance of the casting of a vote at Midland polling booth, it is not asserted that any person was prevented from casting a vote and if any person or persons were prevented from voting, how many were so prevented. Nor is any effect upon the election results asserted. A bald and unelaborated assertion of hindering does not establish a basis for declaring the election to have been invalid. It is asserted on behalf of the petitioner that this ground states succinctly and with "generality" the "essential" facts that persons were "hindered or interfered with" in casting a vote in two specified places. It is said to be reasonable to infer that it is intended by those words to state that such persons were prevented from voting. I do not accept that contention. In my opinion the ground is not sufficient to invalidate the election.

Ground 6 - Votes Cast by Means of a Mark not Counted as Formal Votes 32 Ground 6 is evidently intended to allege a contravention of s 110 of the ATSIC Act. Asserting as it does a contravention of the Act, this ground also alleges an illegal practice. But no fact is stated as to:

(i) the number of votes cast (as described) but not counted;

(iii) the ward or wards in respect of which the votes were cast; or

(iv) the effect of the contravention on the election results.

In my opinion this ground is also insufficient to invalidate the election.

Ground 7 - Home Detention Orders 33 This allegation is simply too general to provide a basis for the invalidation of the election. In particular, it fails to disclose sufficient facts from which it may be ascertained whether what is alleged is an illegal practice or an error or omission. This ground is, on the face of it, so general as to be insufficient.

Ground 8 - Method of Voting did not Constitute a Secret Ballot 34 This appears to be a complaint about the provisions of the Regional Council election rules relating to the provision of a secret ballot. It relates to the provisions of rule 74 and rule 91 of the Regional Council election rules. These provide for each voter to complete a voter card which sets out his or her details, to sign the voter card in the presence of the issuing officer and to give the voter card to the issuing officer for his or her signature. The issuing officer must sign and date the voter card and separate it from the voter card envelope. The issuing officer then hands to the voter the envelope and the ballot paper for the ward in respect of which the voter claims to be enrolled. Rule 77 requires the voter upon receipt of the ballot paper to mark his or her vote on the ballot paper in the privacy of a booth, fold the paper so as to conceal his or her vote and insert it into the voter card envelope and seal the voter card envelope. Rule 91 dealing with the scrutiny of votes, requires, inter alia, the separation of voter and voter card envelopes before scrutiny of the vote. 35 The procedures set out in the rules are consistent with the directions I gave in Yarran v Blurton (No 2) (1992) 36 FCR 152 for a procedure sufficient to constitute a secret ballot in compliance with s 109 of the Act. The facts alleged in ground 8 do not disclose a basis for invalidating the election.

Ground 9 - Regional Council Rules for Wards Invalid 36 The petitioner asserts that this bald contention is sufficient to support the petition. The rules being subordinate legislation, it is said, must be proved as a matter of fact. The particular facts which establish whether or not such rules are valid may be various. It is said that they may comprise a failure to comply with the statutory preconditions for validity set out in the ATSIC Act or they may be invalid because they comprise an instrument which has been disallowed. So to say is simply to engage in speculation. As the Australian Electoral Commission submits, this ground merely asserts a conclusion of law and no facts are set out which, if proven, would establish that conclusion.

Conclusion 37 For the reasons I have given, none of the grounds set out in the petition alleges facts sufficient to invalidate the election. Considering the grounds collectively does not alter that position. In my opinion, for these reasons, the petition must be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Petitioner: Mr G. M. McIntyre

Solicitor for the Petitioner: Gadens Lawyers

Counsel for the First Respondents: No Appearance

Counsel for the Second Respondent: Mr G. McCarthy Solicitor for the Second Respondent:

Australian Government Solicitor Date of Hearing: 15 February 2000