THE COURT ORDERS THAT:

1.         The notice of motion is dismissed.

2.         The applicant is to pay the respondent’s costs of the motion.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This is a notice of motion seeking injunctive relief in connection with the conduct of the Senate election which is to be held tomorrow.  In Queensland, that election is for the election of six senators. 57 candidates have nominated, including the present applicant, Mr Hodgetts.  Most of the candidates have requested that they be grouped into party or similar groupings on the ballot paper in accordance with the provisions of the relevant legislation.  Mr Hodgetts has not done so and has been included in the ungrouped column at the extreme right-hand end of the ballot paper.

He has commenced proceedings in this court aimed at establishing that the ballot paper is in some way unlawful and to restrain any election based upon it.  As an alternative, he suggests that the various returning officers could perhaps amend the process by which voters fill in the ballot paper so as to bring about what he considers to be a fairer process.  I will return to this matter in more detail at a later stage.  I should say, however, that the difficulty with the alternative approach appears to be that it is not in accordance with the Act. 

The ballot paper, in accordance with the Act, offers the voters an opportunity to cast their votes in one of two ways.  With respect to those candidates who have asked to be grouped, each group has a box at the top of the column in which the names of the candidates for that group appear.  It is possible to place a tick or other mark in one only of those boxes with the result, as I understand it, that the voter will be taken to have indicated an intention to follow the pre-arranged order of preferences prescribed by candidates in that column.  Alternatively, voters may cast their votes by filling in each of the 57 boxes which appear below the line by inserting in those boxes the numbers 1 to 57, reflecting their preferences as to the order in which such candidates should be elected to the Senate.

Mr Hodgetts says, and there is, I suppose, some justification for the view, that the second method is much more complex than the first method, and that independent candidates will suffer because they do not have the benefit of being able to participate in the first voting method.  While that may be so, it seems that two members of the High Court sitting as the Court of Disputed Returns have upheld the validity of the process.  See McKenzie v Commonwealth of Australia (1985) 59 ALJR 190 and Abbotto v Australian Electoral Commission (1997) 71 ALJR 675.

Whilst those decisions may not be binding in the way that a decision of the full High Court would be, they are decisions on legislation in the current form.  In the case of McKenzie, the decision has stood for over 10 years, and I see no reason to doubt its correctness.  In the circumstances, I find it difficult to see any serious question to be tried as to the validity of the ballot paper in its present form.

In any event, even if a serious question to be tried were established, the balance of convenience would still arise for consideration.  Given the weakness of the applicant's case, it is difficult to see how the balance of convenience could ever favour the granting of interlocutory relief.  In the present case, however, the situation is much more acute.  The logistic consequences of restraining the Senate election in Queensland tomorrow are obviously momentous.  Quite apart from anything else, it is difficult to see how the interests of the Australian community as a whole could possibly be served by suspending the Senate election in one state only.

Further, the costs incidental to preventing the Senate election from proceeding would, I infer, be very great, and it seems likely that it would be beyond the resources of most private people to meet any award of damages made as a result of such interlocutory injunction having been wrongly granted.  In the circumstances, I am firmly of the view that the balance of convenience lies against granting any injunctive relief at this time.

I said that the applicant, Mr Hodgetts, offered an alternative course, namely that the respondent be compelled to conduct the election in a somewhat different way.  Mr Hodgetts says, and there may well be some truth in this, that the need to fill in the 57 squares is not obvious as there are only six vacancies to be filled.  A meaningful vote could be cast simply by filling in, say, 10 of the boxes, indicating the first 10 preferences.

The difficulty with this approach is that it is inconsistent with the Act, and even if I were minded to strike down the Act as being in some way invalid - which I am not presently inclined to do - I would not have the power to prescribe an alternative method of voting.  The power to make electoral laws lies with the Parliament and not with the court.  Whilst the court may strike down legislation as unconstitutional where it is shown to be so, the court cannot create its own alternative legislative structure.

In those circumstances, the notice of motion will be dismissed.

Associate:

Dated:              12/10/98