• Any

Constitution,s 10.

Commonwealth Electoral Act 1918 (Cth),ss 168,209,210,211,211A,327,329(1),355,362(3),364.

DAWSON J. This is an application by the Australian Electoral Commission ("theCommission") as respondent to a petition underPtXXII of theCommonwealthElectoral Act 1918 (Cth) ("the Act"). The petition to the Court ofDisputed Returns was lodged by John Murray Abbotto ("the petitioner"), who wasanunsuccessful candidate for election as a senator for the State of Victoriaat the half-Senate election held on 2 March 1996. Bys 354(1) of the Act theHigh Court is appointed to be the Court of Disputed Returns and itsjurisdiction is prescribed byPt XXIIof the Act.

The orders sought by the Commission are that no proceedings be had on thepetition and/or that the petition be dismissed upon thegrounds that thepetition does not comply with certain requirements ofs 355 of the Act and thatno ground alleged in the petitionwould, if established, entitle the petitionerto the relief sought in it. In the alternative,an order permanently stayingproceedingson the petition is sought pursuant to O 63 r 2 of the High CourtRules.

The substantive relief which is sought in the petition is as follows:

"1.As per section 360(1)(vii) of the 'Act' declare the 1996 Election for theFederal Senate absolutely void.

2.As per section 360(1)(v) of the 'Act' declare any person or persons who wasreturned as elected was not duly elected.

3.Under the powers vested to the Court of disputed returns under s 360(1) theCourt order a Re-Election for the Federal Senate forAustralia as a whole andorder that the Electoral Officer make the necessary amendments to the 'ballotpaper' to give the 'Independents'equal status to all other Candidates in thesame Federal Elections for the Senate."

The relief sought in the second and third paragraphs could only be grantedconsequent upon granting the relief sought in the firstparagraph, namely thatthe 1996 half-Senate election for the entire Federal Senate be declared void.However, that relief is of akind which the Court of Disputed Returns has nojurisdiction to order. As Brennan ACJ said in Muldowney v AustralianElectoral Commission[1]:

"The framework of the Act as well as the language of s 355(c) indicates thatthe jurisdiction of the Court of Disputed Returns doesnot extend to the makingof a declaration that the entirety of a general election is void. Thejurisdiction to declare an electionvoid on the petition of a person 'who wasqualified to vote thereat' is limited to those elections in which thepetitioner was anelector entitled to vote. If a challenge on justiciablegrounds can be mounted to the validity of a general election - a questionthatI need not consider - such a challenge cannot be entertained by the Court ofDisputed Returns[2]. It may be that the HighCourt has such a jurisdiction but that has not been decided: see the dicta ofGibbs CJ inMcKenzie v The Commonwealth[3]."

InPavlekovich-Smith v Australian Electoral Commission[4] andSykes v Australian Electoral Commission[5] I expressed my agreement with this view andfollowed the decision of Brennan ACJ, as did Toohey J inRobertson vAustralian Electoral Commission[6]. TooheyJ added:

"The matter is put beyond question when regard is had to s 221 of the Act whichmakes it clear that an elector shall only be admittedto vote for the electionof Senators for the State or Territory for which he or she is enrolled and forthe election of a memberof the House of Representatives for the Division forwhich he or she is enrolled. In the light of that clear statement, therequirementin s 355(c) that a petition disputing an election shall be signedby a candidate at the election 'or by a person who was qualifiedto votethereat' leaves no doubt as to the limited scope of the jurisdiction of theCourt of Disputed Returns in this regard."

It may be noted that in the passage which I have reproducedfromMuldowney v Australian Electoral Commission, Brennan ACJ spoke of thejurisdiction to declare an election void on the petition of a person "who wasqualified to vote thereat"as limited to those elections in which thepetitioner was an elector entitled to vote. But as is clear from the Act andfrom thedecision inPavlekovich-Smith v Australian ElectoralCommission, the jurisdiction of the Court of Disputed Returns is equallylimited in the case of a petition of a person who was "a candidateat theelection" because, as was noted by Toohey J inRobertson v AustralianElectoral Commission[7], s 355(c) speaks ofa petition signed by a candidate at the election in dispute or by a person whowas qualified to vote thereat. It is the one election which is referred to.Thus a Court of Disputed Returns has no jurisdiction to declare a generalelectionvoid on a petition lodged under Pt XXII of the Act.

It follows that the relief sought in the petition is of a kind which a Courtof Disputed Returns is unable to order unless it ispossible to read down thepetition to confine the relief sought in it to the half-Senate election for theState of Victoria. However,apart from the general terms in which the reliefsought is cast, the petition is directed to the general manner in which Senatevotingis conducted throughout the country and cannot be read as confined tothe Senate election for the State of Victoria. Relief so confinedis not whatthe petitioner seeks[8]. So much was confirmedby the petitioner in argument, thus making it impossible to read down therelief sought.

Whilst what I have said is sufficient to dispose of the matter, it is,perhaps, desirable to consider the substance of the petitioner'scomplaint. Iam able to do so without pausing to consider the question, raised by theCommission, whether the petition sets outthe facts relied upon to invalidatethe election and does so with sufficient particularity to identify the specificmatter or matterson which the petitioner relies as justifying the grant ofrelief[9]. Of course, if the petition does notdo that, then, subject to s 358(2) and (3), no proceeding may be had on it[10]. However, it is clear enough that thesubstance of the petitioner's complaint is that the relevant sections of theAct which providefor group and individual ticket voting are invalid, and I canturn directly to that matter. In order to understand it, it is necessarytodescribe in brief compass the ticket voting system set up by the Act in respectof Senate elections.

Section 209(1) of the Act provides that ballot-papers to be used in a Senateelection shall be in Form E in Schedule 1 to the Act. That form shows aballot-paper across which is drawn a horizontal black line. Pursuant to s 168of the Act, two or more candidatesmay request that their names be grouped onballot-papers, but candidates who wish the word "Independent"to be printedadjacent totheir name on ballot-papers pursuant to s 169A are not able to makesuch a request. Under s 210 of the Act, in printing ballot-papersthe names ofgrouped candidates are to be printed before the names of ungrouped candidates.The namesof grouped candidates appearin a single column dedicated to thatgroup below the line on the ballot-paper, and except as otherwiseprovided bythe regulationsa square is to be printed opposite the name of each candidate[11]. Where grouped candidates lodge with theAustralian Electoral Officer a statement in accordance with s 211 indicatingtheir orderof preferences or orders of preferences in relation to all thecandidates, they are taken to have a group voting ticket or groupvotingtickets, and a square appears above the line on the ballot-paper in the samecolumn in which the names of the grouped candidatesare listed individuallybelow the line[12]. The names of ungroupedcandidates appear, subject to s 210(3)(b) and (c), in a single column after thenames of grouped candidates. Since those candidates are unable to registervoting tickets, no voting ticket square appears above the line in that column[13].

The voter may mark his vote either by placing consecutive numbers in everysquare appearing beside the names of candidates belowthe line, or simply byplacing the figure "1" or a tick or a cross in one only of the voting ticketsquares appearing above the line[14]. Thus,the Act allows a simplified method of voting for grouped candidates by markinga single group voting ticket square appearingabove the lineon theballot-paper. Where a group voting ticket square is marked in this way, theballot-paper is deemed to be markedin accordancewith the relevant votingticket or tickets[15]. However, thissimplified voting procedure is not available to ungrouped independentcandidates who are unable to register a votingticket.

In addition to the scheme which may be discerned from the provisions to whichI have referred, it is necessary to refer to s 211Aof the Act. That sectionallows an ungrouped individual candidate who is a sitting member of the Senateto lodge an individual votingticketor individual voting tickets. Where sucha ticket or such tickets is or are lodged, the candidate is able to availhimselfor herselfof the advantages enjoyed by grouped candidates because avoter who wishes to vote for such a candidate is able to usethe simplifiedmethod of voting provided for in the Act, namely, by casting a vote for theindividual ticket or tickets simply byplacing the figure "1" or a tick orcross in a square abovethe line on the ballot-paper. That is not an advantageenjoyed by ungroupedcandidates who do not fall within the language of s211A.

The significance of the scheme which I have outlined is clear enough, althoughit may, perhaps, be more readily appreciated by consideringthe two optionspresented to voters marking the ballot-paper used at the 1996 half-Senateelection for the State of Victoria. Thevoter's first option was simply tomark one square above the line; in the alternative, the voter could mark, withconsecutive numbers,all 44 squares below the line. Both means of voting wereavailable as alternatives to vote for individuals and groups with registeredvoting tickets, but only the latter method was available to vote for ungroupedindependent candidates who were unable to registera voting ticket. Thepetitioner contends that this placed such candidates, including himself, in aposition of disadvantage whichmay have affected the result of the election.In support of that contention, it is claimed in the petition that at the 1996half-Senateelection a very low percentage of electors voted by numbering everybox below the line on the ballot-paper. The petition also relieson documentsstyled as statutory declarations to the effect that certain persons whointended to vote for the petitioner or for independentcandidates were confusedor misled by the ballot-paper and failed to cast a formal vote as a result.

But even if these facts were ultimately established, the question is whetherany invalidity would thereby be disclosed. InMcKenzie v TheCommonwealth[16], a challenge wasunsuccessfully mounted to the group voting system for which the Act provides.The Act at that time was cast in slightlydifferent terms and did not include s211A, but those differences are not material. Gibbs CJ rejected a submissionon that occasionthat the system contraveneds 16 of theConstitution. He alsorejected a submission that it offended general principles of justice bydiscriminating against candidates who are not membersof established parties orgroups. Gibbs CJ was prepared to assume thats 7 of theConstitution requiresthe Senate to be elected by democratic methods but held that any disadvantagecaused by the group voting system to ungroupedand independent candidates didnot "so [offend] democratic principles as to render the sections beyond thepower of the Parliamentto enact"[17].

Even though the substance of the petitioner's argument in this case is thatthe voting ticket system as it currently operates isinvalid, the only realground raised is that the voting ticket system contraveness 10 of theConstitution. That section provides:

"Until the Parliament otherwise provides, but subject to thisConstitution,the laws in force in each State, for the time being,relating to elections forthe more numerous House of the Parliament of theState shall, as nearly aspracticable, apply to electionsof senators for the State."

However, by enacting the Act, including those provisions impugned in thepetition, the Parliament has otherwise provided for theelection of senatorsfrom eachState, ass 10 expressly allows it to do. There is therefore nosubstance in this ground.

The petition points more generally to the provisions of certainanti-discrimination legislation, without specifying that legislationaccuratelyor with any particularity, and without indicating the way in which it is reliedupon. The petition refers to theEqual Opportunity Act 1984 (Vic), astatute which was repealed and replaced by theEqual Opportunity Act1995 (Vic). Be that as it may, nothing in either statute has any bearing onthe validity or operation of the voting ticket system. Onemay doubt whether aState statute which purported to interfere with the system of voting in federalelections would be within thepower of a State legislature. But even if itwere, the Commonwealth Parliament could enact laws inconsistent with any suchlaws,in which case its laws would prevail over the inconsistent State lawsunders 109 of theConstitution. The petition also refers to the "1975Discrimination Act", presumably a reference to theRacial DiscriminationAct 1975 (Cth). However, there is nothing in theRacial DiscriminationAct which has any bearing on the validity of the voting ticket system laiddown by the provisions of the Act.

The petition also points to s 327(1) and (2)(d) of the Act. The manner inwhich those sub-sections are relied upon is not clear,and as thosesub-sections are in the same Act as the provisionsimpugned in the petitionthey could not operate to invalidate thoseprovisions. Nor could it be saidthat those who printed Senateballot-papers or conducted Senate elections inaccordance with theAct had hindered or interfered with the free exercise orperformance by any other person of any political right or duty that is relevantto an election under the Act within the meaning of s 327(1). Section 327(2)prohibits discrimination against a person on the groundof the making by thatpersonof a donation to a political party, candidate for election or group, butsays nothing relevant to thematters of which the petitionercomplains.

The petition also refers to s 329(1) which provides:

"A person shall not, during the relevant period in relation to an electionunder this Act, print, publish or distribute, or cause,permit or authorise tobe printed, published or distributed, any matter or thing that islikely tomislead or deceive an electorin relation to the casting of a vote."

InRe Australian Electoral Officer (Victoria); Ex parte Abbotto[18], I held that advertisements published by theAustralian Electoral Commission which directed voters that there were two waysof completinga Senate ballot-paper were not misleading or deceptive within themeaning of s 329(1). That conclusion equally applies to the ballot-papersthemselves. But more importantly, the printing of ballot-papers in accordancewith the Act could not be regarded as the printingof misleading or deceptivematerial as prohibited by the Act.

In argument, the petitioner placed particular reliance on ss 364 and 362(3) ofthe Act. Section 364 provides that the Court ofDisputed Returns shall beguided by the substantial merits and good conscience of each casewithoutregard to legal forms or technicalities,or whether the evidence before it isin accordance with the law of evidence or not. When that section speaks of the"substantialmerits" of the case, it means, of course, the substantial legalmerits of each caserather than what might be perceived to be thefairness ofthe law itself. For the reasons I have given, there is no legal meritin thepetitioner's case.

Section 362 refers to the declaring of elections void on the grounds ofbribery or corruption, illegal practice and undue influence. Those terms aredefined by s 352(1). "Bribery" or "corruption" means a contravention of s326(2), which is not alleged in the petitionand may be put to one side."Illegal practice" means a contravention of the Act or the regulations, but,for the reasons I have given,no such contravention could be established byanything raised in the petition. "Undue influence" means, inter alia, acontraventionof s 327 of the Act, but, as I have said, it is plain that nocontravention of that section is pointed to by anything in the petition.Section 362 istherefore not engaged in the present case.

For these reasons, I am satisfied that the petition does not disclose anythingwhich would entitle the petitioner to the reliefwhich he seeks. Theappropriate course is, I think, to dismiss the petition pursuant to the powerconferred by s 360(1)(viii) ofthe Act.

[1][1993] HCA 32; (1993) 178 CLR 34 at 42.

[2]Re Surfers Paradise ElectionPetition [1975] Qd R 114 at 117 suggests that a similar conclusion wasreached under theElections Act 1915 (Q) by Dunn J sitting as anElection Tribunal.

[3][1984] HCA 75; (1984) 59 ALJR 190 at 191;[1984] HCA 75; 57 ALR 747 at749-750.

[4][1993] HCA 37; (1993) 67 ALJR 711 at 712;[1993] HCA 37; 115 ALR 641 at642-643.

[5][1993] HCA 36; (1993) 67 ALJR 714 at 715;[1993] HCA 36; 115 ALR 645 at646-647.

[6][1993] HCA 50; (1993) 67 ALJR 818 at 818;[1993] HCA 50; 116 ALR 407 at408.

[7][1993] HCA 50; (1993) 67 ALJR 818 at 818;[1993] HCA 50; 116 ALR 407 at408.

[8] SeePavlekovich-Smith v AustralianElectoral Commission[1993] HCA 37; (1993) 67 ALJR 711 at 712;[1993] HCA 37; 115 ALR 641 at 643;Robertson v Australian Electoral Commission[1993] HCA 50; (1993) 67 ALJR 818 at 818;[1993] HCA 50; 116 ALR 407 at 408.

[9] See s 355(a) and (aa).

[10] See s 358(1), and see generallyMuldowney v Australian Electoral Commission[1993] HCA 32; (1993) 178 CLR 34;Pavlekovich-Smith v Australian ElectoralCommission[1993] HCA 37; (1993) 67ALJR 711; 115 ALR 641;Sykes v Australian Electoral Commission[1993] HCA 36; (1993) 67ALJR 714; 115 ALR 645;Webster v Deahm[1993] HCA 38; (1993) 67 ALJR 781; 116 ALR 223;Robertson v Australian Electoral Commission[1993] HCA 50; (1993) 67 ALJR 818; 116 ALR407.

[11] See s 210(f) and Form E.

[12] See s 211(4) and (5) and Form E.

[13] See s 210(3)(a) and Form E.

[14] See s 239 and Form E.

[15] See s 272.

[16][1984] HCA 75; (1985) 59 ALJR 190; 57 ALR 747.

[17][1984] HCA 75; (1985) 59 ALJR 190 at 191;[1984] HCA 75; 57 ALR 747 at749.

[18] (1996) 70 ALJR 493.