FEDERAL COURT OF AUSTRALIA

Kelly v Campbell [2002] FCA 1125

ELECTIONS – Court of Disputed Returns – motion to strike out election petition - petition disputing validity of New South Wales half Senate election – validity disputed on several grounds – commission of NSW Governor not invalid – Governor able to issue writ for election because of validity of Australia Act 1986 (Cth) and Australia Act 1986 (UK) – alleged breaches of Senators’ Election Act 1903 (NSW) in respect of dates fixed for certain events relevant to the running of the election – whether Court could be satisfied on the facts pleaded in the petition that any alleged contraventions would be likely to affect the result of the election

WORDS & PHRASES – “likely to be affected”

Commonwealth Electoral Act 1918 (Cth) ss 152, 155, 156, 352, 354, 355, 356, 358, 359, 360,

   362, 363A, 364, 365, 368

Evidence Act 1995 (Cth) s 144

Australia Act 1986 (Cth)

Australia Act 1986 (UK)

Constitution Act 1902 (NSW), ss 5, 9A

Constitution Act 1867 (Qld), s 53

Australia Acts (Request) Act 1985 (Qld)

The Constitution s 9 

Senators’ Election Act 1903 (NSW) s 3, 4B, 4C

Sue v Hill (1999) 199 CLR 462, referred to

Sykes v Australian Electoral Commission (1993) 115 ALR 645, followed

Cole v Lacey (1965) 112 CLR 45, cited

Nile v Wood (1988) 167 CLR 133, referred to

Crouch v Ozanne (1910) 12 CLR 539, considered

Webster v Deahm (1993) 116 ALR 223, considered

Sharples v Arnison [2001] QCA 518, followed

NED KELLY v GEORGE CAMPBELL & ORS

N499 of 2002

MADGWICK J

11 SEPTEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The election petition filed on 15 January 2002 be dismissed.

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

REASONS FOR JUDGMENT

HIS HONOUR:

Introduction

1                     On 15 January 2002, Mr Ned Kelly filed in the High Court of Australia in the Brisbane Registry an election petition, purportedly made pursuant to Part XXII (ss 352-381) of the Commonwealth Electoral Act 1918 (Cth)(“CE Act”).  It is convenient and appropriate to set out the substance of the petition in full.  A copy of the text of the petition, omitting formal parts, is annexed hereto.  A Notice of Constitutional Matter was also filed on that date by Mr Kelly.  On 25 January 2002, Mr Kelly served a copy of that Notice on the relevant Attorneys-General of the Commonwealth and States in accordance with the requirements of s 78B of the Judiciary Act 1903 (Cth).  No Attorneys General sought to appear.

2                     The matter concerns the validity of the New South Wales half Senate election in 2001 (“the election”).  The poll was held on 10 November 2001 and the writ returned on 6 December 2001.  Following the filing of Mr Kelly’s petition, the matter was listed before McHugh J in the High Court, sitting as the Court of Disputed Returns, for directions on 14 May 2002.  The Australian Electoral Commission, now the seventh respondent (“the Commission”) was then granted leave to be joined as a party.  Under s 359 of the CE Act, with the leave of the Court, the Commission is entitled to enter an appearance in proceedings of this kind, and to be represented and heard; upon leave being granted, the Commission is deemed to be a party respondent to the petition.  It may be that in any event, as McHugh J was apparently inclined to think, the Commission was entitled without leave to be made a party, having regard to some of the allegations made against its officers in the petition.

3                     The first six respondents, the then re-elected senators or senators-elect, each caused the Court to be informed that he or she was aware of Mr Kelly’s petition, but elected not to take an active role and understood that the Commission proposed to argue in opposition to the orders sought by Mr Kelly in the petition.  After hearing the parties, McHugh J ordered that the petition be referred for trial in this Court, sitting as the Court of Disputed Returns, in its New South Wales District Registry pursuant to s 354(1) of the CE Act. 

Statutory framework

4                     The CE Act requires, as to these proceedings, that a petitioner must deposit with the High Court $500 as security for costs (s 356).  Section 358 provides that, subject to the Court relieving the petitioner wholly or in part from compliance with s 355(aa) “no proceedings shall be had on the petition unless the requirements of [relevantly, s 355(a)] are complied with”.  Section 355 provides that, subject to an immaterial exception, “every petition disputing an election or return … shall:

(a)       set out the facts relied on to invalidate the election or return;

(aa)           subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;

(b)               contain a prayer asking for the relief the petitioner claims to be entitled to;

…

(e)               be filed in the Registry of the High Court within 40 days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution, within 40 days after the notification of that choice or appointment.”

5                     Section 360, so far as relevant, provides as follows:

“(1)     The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:

…

(v)               To declare that any person who was returned as elected was not duly elected;

…

(vii)     To declare any election absolutely void;

(viii)    To dismiss or uphold the petition in whole or in part;

(ix)      To award costs;

…

(2)               The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(3)               Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election.”

6                     Section 352 defines “illegal practice” to mean a contravention of the Act or the regulations made under it.

7                     Section 362, so far as presently material, provides:

“(1)  If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.

(2)         No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.

(3)         The Court of Disputed Returns shall not declare that any person returned as elected 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 the knowledge or authority of the candidate; 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.”

8                     Section 363A provides that the Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances.

9                     Section 364 provides:

“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.”

10                  Section 365 provides:

“No election shall be avoided on account of any delay in the declaration of nominations, the provision of certified lists of voters to candidates, the polling, or the return of the writ, or on account of the absence or error of or omission by any officer which did not affect the result of the election:

            Provided 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.”

11                  Section 368 provides:

“All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.”

12                  Upon the matter entering my docket, it was first listed for directions on 5 July 2002.  Thereafter various directions were given for the conduct of the matter.  On 12 August 2002 the Commission filed a Notice of Motion seeking orders that the petition be dismissed or in the alternative that the proceedings on the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or on the ground that the proceeding is an abuse of a process of the Court.  It is however true to say that, earlier, on 13 May 2002 the Commission had filed a Summons in the High Court seeking like relief, but my attention was not drawn to this until the Notice of Motion of 12 August was filed; there were, no doubt, other distracting interlocutory proceedings.

General principles to be applied

13                  It is well established that Courts should be slow to strike out or dismiss an action without entering upon a full hearing of it.  Particularly having regard to s 368 of the Act, which, as indicated, seeks to make the Court of Disputed Returns the final arbiter, in my opinion, this principle should be applied rigorously and it is only in the clearest of cases that the Court should so act.  I would not be inclined to dismiss or stay proceedings on a petition for supposedly manifest want of merit unless the case appears quite hopeless.

The Commission’s submissions

14                  The substance of the attacks made by the Commission on the petition are as follows:

·                    Insofar as the petition asserts or raises any question of an illegal practice as defined, s 362(3) prohibits the Court from granting the principal relief sought unless the Court is satisfied that the result of the election was “likely to be affected”, yet there are no facts set out in the petition which, if established, could ground a conclusion that the result of the election was likely to be affected. 

·                    While the Court is not limited to “illegal practices” (that is to say, contraventions of the CE Act) as bases for declaring an election void:  see Sue v Hill (1999) 199 CLR 462, insofar as the petition relies on other matters, none of these matters constitutes a ground in law upon which the election in question can be declared void. 

·                    The petition does not set out facts that would support a finding that the rejection of the petitioner’s nomination was in contravention of the CE Act nor does it set out facts which allege that his failure to make a valid nomination was caused by any incorrect advice from officers of the Commission. 

·                    The CE Act does not have the effect, as assumed in the petition, that the giving of advice voluntarily by the Commission’s officers (that is, without any legislative requirement that such advice be given), which advice is negligently given, amounts to a contravention of the CE Act.

Does the petition sufficiently set out facts?

15                  It is convenient to begin with the question whether, insofar as contraventions of the CE Act are raised by the petition, there are sufficient facts set out in it.  This question is distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s 355(aa).  A failure of the latter kind might be forgiven under s 358(2) if the grant of relief would not unreasonably prejudice the interest of another party to the petition (see s 358(3)).

16                  For the purpose of considering the Commission’s submission, every reasonable inference in the petitioner’s favour should be drawn from the facts which are actually set out in the petition.  Likewise, I am prepared to assume that facts which truly are notoriously common knowledge and which would not need to be proved by evidence (even of the kind contemplated by s 144 of the Evidence Act 1995 (Cth)) may be assumed, when reading the petition.  (Section 144 provides that proof is not required about knowledge that is not reasonably open to question and is either common knowledge where the proceeding is held (or generally) or can be verified by reference to a document, the authority of which cannot reasonably be questioned.)  The question is not whether, in the actual exercise of any jurisdiction the Court may have, evidence might or might not need to be called to establish one or more of those facts.  It is important to bear in mind for present purposes that the question is whether the petition sets out the facts which, if true, could cause the Court to invalidate the election.  Nevertheless, I am prepared to assume, even at the jurisdictional stage, that the Court should not shut its eyes to matters which are genuinely notorious, even if not alleged in the petition, in a way which would bring the administration of justice into disrepute. 

17                  Also, the petitioner is, in my opinion, entitled to have the Court assume an understanding of the effect of relevant aspects of the electoral laws, even though, on one view, such effects might be thought to amount to “facts”, the existence of which is crucial to the series of propositions which must be established to entitle the petitioner to relief.  Thus it should be taken as given, for example, that the Senate voting system is by way of preferential and proportional representation and that the logical implications of this include that candidates or groups of candidates who might attract quite small numbers of votes may contribute, by the allocation of their preferences, to the success or failure of the last of the six Senators elected at an election for half of the Senators for a State.

18                  That the petition should nevertheless set out the facts relied upon to invalidate an election is a jurisdictional prerequisite, and that flows from the combined effect of ss 358(1) and (2), 355(a) and (aa) and 362(3).  In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648-9, Dawson J said:

“The statement of the facts relied on to invalidate the election which para (a) of s 355 requires cannot be amended if, as is the case here, more than 40 days have elapsed since the return of the writ for the election.  Otherwise the amendment would in effect evade s 355(e) which requires the petition to be filed within that time.  It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid.  Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on.  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.  That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little.  If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied.  The Court would then be required to try the petition even though on its face it could not succeed.

His Honour followed Cole v Lacey (1965) 112 CLR 45 and Nile v Wood (1988) 167 CLR 133 in which Brennan, Deane and Toohey JJ said at 138:  “The petition must set out facts which would justify relief under the Act…”.

19                  Counsel for the Commission, Mr Hanks QC and Ms Jagot, submit, correctly in my opinion, that the word “likely” when used in a statute can have a variety of meanings ranging from “just possible” to “highly probable”, depending on the context.  In my opinion, the present context includes the following matters.  Australia is a democratic country.  However the legislative, indeed the constitutional, expression of democratic principles has been influenced (a purist might say, compromised) by a number of considerations of perceived necessity and practicality.  Thus, for example, the people of a less populous state, such as Tasmania, are represented by the same number of Senators as the people of the more populous states such as New South Wales, and by six times as many Senators as either of the Territories.  The effect of s 355 and 358 of the CE Act is that the Court may not forgive a failure to set out the facts relied on to invalidate an election.  The CE Act provides only forty days in which a candidate or person qualified to vote may challenge the validity of an election:  see s 355(e) and 353(1) which provides: “the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise”.  These and other requirements of the Act are plainly steps aimed at both providing for the ability of the people to ensure that elections have been lawfully conducted and considerably limiting when and how this might be done, in the interests of (a) certainty of the results of elections and (b) the necessity for the machinery of government to be able to function without undue interference.

20                  In my view, s 362 is of a piece with the legislative policy and context thus apparent.  It would defy the policy underlying the provisions referred to if a merely timely voter or candidate with access to pleading prowess could set elections at nought for some contravention of the CE Act, even if there were no real possibility, as distinct from a merely theoretical or remote possibility, that the result of the election might have been affected by such contravention.  It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred.  It is in that sense that I think the word “likely” should be understood.  In Crouch v Ozanne (1910) 12 CLR 539 O’Connor J was considering whether the prevention of some of a candidate’s scrutineers “from exercising their duties in looking after Mr Crouch’s interests during the day [in certain polling booths], and also … from taking the part which they ought to be allowed to take in the scrutiny” was “likely to have affected the election”.  At the affected booths, the majority of votes polled for the successful candidate was larger than his total majority.  His Honour said at 543:

“I cannot act upon the mere conjecture that the result of the election would have been different if the scrutineers had not been interfered with … The question for my determination is whether I would be justified in disturbing the choice of the electors by so large a majority on the mere supposition or conjecture that, if at these three polling places Mr Crouch had had the full benefit of the presence of his scrutineers, the result would have been so different as to have affected the result of the election.”

21                  It seems to me that the approach I favour is in accordance with that applied by O’Connor J.

22                  I did not understand the Commission ultimately to put the matter any higher against Mr Kelly than this.  To my mind any more liberal interpretation of the word “likely” which might aid the petitioner cannot be sustained.

23                  It is immediately apparent that the petition is quite deficient in failing to set out the necessary facts.  The facts as to the result of the election, such that one might be able, even by a process of generous inference, to conclude that the exclusion of Mr Kelly and the other candidates in his group might, as a real possibility, have influenced the actual outcome of the election, are simply not there.  There is no question of such result being, in the sense mentioned, notoriously common knowledge.  I doubt that there would be five people in Australia who could say from memory who were the groups of candidates and the individual candidates and how many votes they attracted in the election in question.  There would be very few who could even indicate, merely to some reasonably approximate order of magnitude, by what margin the last-elected of the respondents was so elected.  One may infer, from the legislation establishing a voting system such as has been provided for the Senate, that if there is a large number of groups of candidates and/or individual candidates, arrangements as to distributions of preferences that a particular group or candidate may be able to engineer might result in that group or candidate wielding a degree of influence on the election result much larger than the actual proportion of the votes attracted by that group or candidate, and that that may be so even if the proportion of votes so attracted is quite small.  But that is a matter merely of logical or theoretical possibilities.  As I have indicated, whether there was any real chance of that occurring, but for Mr Kelly and his group’s exclusion, so far as the petition is concerned, is entirely a matter of speculation and, by reason of the absence of facts set out in the petition, quite uninformed speculation.

24                  I have however been troubled, to some extent, as to whether facts asserting the illegal exclusion of a candidate might not, of themselves, oblige the Court to say that the result of the election is likely to have been affected.  Such an interpretation of the CE Act would tend to vindicate a fundamental notion of modern Australian democracy that, in general, any citizen should be able to stand for election to Parliament.  In Webster v Deahm (1993) 116 ALR 223 Gaudron J said (at 225):

“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[CE 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.” (emphasis added)

However, the matter was squarely dealt with by Dawson J in Sykes v Australian Electoral Commission (1993) 115 ALR 645.  His Honour said (at 650-51):

“The petitioner alleges in ground 6 that his nomination was valid and was wrongfully rejected.  If that was so, then there was a contravention of the [CE Act] and, for that reason, an illegal practice on the part of the officer to whom the nomination was made.  But that would not be a sufficient basis under s362(3) to declare the relevant election void.  Before that can be done the court must be satisfied that the result of the election was likely to be affected, and ground 6 sets out no facts which would justify the court in being so satisfied.  And grounds 1, 2, 3 and 5 similarly set out no such facts. It follows, I think, that on the facts relied on by the petitioner in relation to these five grounds no relief could be granted.”

25                  I am of course bound by such a conclusion of a member of the High Court, sitting as the Court of Disputed Returns, on a matter necessary to the decision in the case.  Thus it appears that, in subjecting an allegedly wrongfully excluded candidate to the requirement that he or she should assert, in addition to an allegation of wrongful exclusion, that such exclusion was, as a matter of reality, “likely” to affect the election result, Parliament took another step to express a democratic principle in a practical manner.

26                  The failure to assert facts regarding the likely effect on the election was not, in my opinion, a matter merely of failure to set out the necessary “facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief” as required by s 355(aa), which might be remedied under s 358(2).  Granted that there may be no very bright dividing line between setting out facts and setting them out with sufficient particularity for the purposes of the statute (c.f. Dawson J’s remarks in Sykes supra), it is at least clear that some factual assertion, however generally framed, capable of supporting the conclusion that the exclusion of Mr Kelly’s group was likely to have affected the result, should have been made.

27                  It is accordingly unnecessary to consider further the adequacy of the petition or the legal premises on which it is based, insofar as it concerns matters that do not involve more than supposed contraventions of the CE Act, namely grounds three and four of the petition.

Validity of amendments to NSW Constitution and the Australia Act 1986 (Cth)

28                  I turn to the petitioner’s claims in the petition that there are other grounds, independent of the CE Act, upon which the election should be declared void.  In ground one, the petition asserts that “the [NSW] Governor’s commission was invalid [and] as a consequence no power existed [in the Governor] to issue the writ”.  As will be seen from paras 5 and 6 of the petition, this view depends upon arguments that the Australia Act legislation of the Australian and the United Kingdom Parliaments, respectively, the Australia Act 1986 (Cth) and the Australia Act 1986 (UK), are invalid.  The intended effect of these statutes was, as the long title indicates, “to bring the constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation”.  The unspoken assumption linking the asserted invalidity of those Acts and the supposed invalidity of the NSW Governor’s commission is that amendments made by the NSW Parliament of the Constitution Act 1902 (NSW) (“NSW Constitution”) in 1986, whereby s 9A was inserted, depended upon the validity of one or other of the two statutes just mentioned.  Section 9A provides:

“(1)     There shall continue to be a Governor of the State.

(2)       The appointment of a person to the office of Governor shall be during Her Majesty’s pleasure by Commission under Her Majesty’s Sign Manual and the Public Seal of the State.

(3)       Before assuming office, a person appointed to be Governor shall take the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another Judge of the Supreme Court.”

29                  To my mind there is a threshold difficulty with the whole of Mr Kelly’s position and it lies in the fallacy of the unspoken assumption to which I have referred.  Section 5 of the NSW Constitution provided at all relevant times:

“The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:

Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.”

30                  The received legal position is that before the passage of the Australia Acts, the NSW Constitution was in force and had effect.  No submission of Mr Kelly denies that, though he may well have some theory other than the received one as to the ultimate source of the authority of that Constitution.  Nothing has been submitted which, having regard to the actual terms of s 9A, would make me doubt that, before the Australia Acts, s 5 would have authorised the amendment of the NSW Constitution by the insertion of s 9A.  It follows that, whatever the position as to the invalidity of either of the Australia Acts, s 5 continued thereafter to have legal force and effect.  To the extent that either or both of them may have been invalid, the pre-existing force and effect of s 5 would continue.  To the extent that either or both Acts was/were valid, nothing in them adversely affected the continuing force and effect of s 5.

“Avoidance” of Queensland manner and form provisions

31                  If that view is correct, it is unnecessary to deal further with the matters at issue.  However, I would add some further brief comments.  Firstly, as to what may be called the “Queensland” point, the manner and form restriction relied on by Mr Kelly relevantly applied so as to require a referendum before royal assent might be given, among other things, to “a bill that expressly or impliedly provides for the for the abolition or alteration of the office of the Governor [of Queensland]”:  s 53 of the Constitution Act 1867 (Qld) (“the Queensland Constitution”).  However, the Australia Acts (Request Act) 1985 (Qld) (“the Queensland Request Act”) is not a law within the contemplation of s 53 of the Queensland Constitution.  The Queensland Request Act did not purport to abolish or alter the office of the Governor of Queensland (nor otherwise affect the other manner and form protected provisions of the Queensland Constitution).  While it expressed a request for the enactment of legislation by the Commonwealth and United Kingdom Parliaments, the Queensland Request Act did not itself abolish or alter the Governor’s office.  Consequently, there was no requirement that the Bill for the Queensland Request Act should have been approved by a referendum of the Queensland people.  Any complaint about the effect secured by the Queensland Request Act process lies in the realm of politics, not law.  Sharples v Arnison [2001] QCA 518, a unanimous decision of the Queensland Court of Appeal, in litigation brought by Mr Kelly before he adopted his present name, makes this clear.  Even if I thought this decision were attended by some doubt, which as presently advised I do not, I would certainly follow it as to matters concerning the Queensland Constitution, unless I were quite convinced that it was plainly wrong; it is obvious that I am not so convinced.

32                  As to the political and legal evolution of relations between Australia and the United Kingdom, the point may be simply enough answered as it was by counsel for the Commission:  it excites no judicial surprise that legal developments do not always keep pace with political realities.  In any case, even if an Australian court ought, by 1985, have declined to recognise any UK Act as having any legal force for Australia, ex hypothesi s 5 of the NSW Constitution must have derived its undoubted force and effect from the sovereign power, subject to the Commonwealth Constitution, of the people of New South Wales, expressed (among other ways) by the periodic election of the members of the NSW Parliament.

The method of election and the timing of the poll

33                  Ground two of the petition alleges that:

“The terms of the writ as issued [for the Senate election in NSW] were illegal and constitutionally invalid; franchise skewed, poll illegal, proprietary of conduct of election, substantial contraventions, official error – no due electing according to law.”

34                  It may be that this ground alleges no more than an “illegal practice”, in which case, for the reasons given earlier, it must fail:  nothing in the petition asserts that the result of the election was thereby affected or how or why that might be so.  However, lest the matter complained of properly bears a different character, for instance, that there has been a contravention of the Commonwealth Constitution, I add the following.

35                  The basis for the ground is Mr Kelly’s argument that the writ issued did not comply with the requirements of the Senators’ Election Act 1903 (NSW) (“the NSW Election Act”) because the dates fixed for the close of rolls, nominations and the poll were incorrect.  This argument is principally based on Mr Kelly’s claim that the times for various steps in the election fixed by that Act ran from the publication of the writ in the Government Gazette and not from the date the writ was issued by the NSW Governor.  The facts alleged by Mr Kelly in his petition are that on Monday, 8 October 2001, Her Excellency Professor Marie Bashir AC, issued a writ for the election, which commanded the place and times for the election, and that a copy of the writ was electronically forwarded to the NSW Government Printing Services with a heading that purported to proclaim the issue of the writ on the same day.  However, Mr Kelly alleges, the Special Gazette No 155 (which presumably sets out the text of the writ) was not printed and published until Friday, 12 October 2001 and was not available to the public until 2:00 pm on that day.  Mr Kelly submits that time must run from publication of the writ by means of the Government Gazette on 12 October 2001.  Section 3 of the NSW Election Act provides:

“For the purpose of elections of Senators for New South Wales of the Parliament of the Commonwealth, the Governor may, from time to time, by order published in the Gazette, fix the dates for: the issue of the writ; the close of the electoral rolls; the nomination of the candidates; the polling; and the return of the writ.”  (emphasis added)

36                  Mr Kelly alleges that the dates fixed in the writ were incorrect because of the delayed publication of the writ and thereby provisions of the NSW Election Act were contravened.  Mr Kelly finally asserts that, even if the dates are determined by reference back to the date the Governor issued the writ and not the date of publication, on his calculations, the dates specified in the writ are one day out: s 36 of the Interpretation Act 1987 (NSW).  On his calculations, the following dates should have been fixed (the first date is calculated from the date the writ was issued and the second date is calculated from the date of publication):

date fixed for the close of the rolls:                    16 or 22 October 2001

date fixed for the close of nominations   19 or 23 October 2001

date fixed for the poll                                        17 November 2001

37                  In effect, Mr Kelly principally submits that the Governor, in setting the dates she did, at the evident behest of the Commonwealth authorities and the NSW State Parliament, was incorrect and the election should therefore be declared invalid.

38                  Counsel for the Commission submit that, assuming the facts alleged by Mr Kelly regarding the issue and publication of the writ to be correct, those facts do not provide a ground to declare that the NSW Senate election was invalid or void. 

39                  Section 9 of the Commonwealth Constitution provides:

“The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States.  Subject to any such law [emphasis added], the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Times and places.  The Parliament of a State may make laws for determining the times and places of elections of senators for the State.”

40                  Counsel for the Commission point out that the effect of s 9 is that, whilst the NSW Parliament may make laws concerning the method of choosing senators, including laws to determine the time and place of the State’s elections of senators, such State laws will, except as to the actual times and places of the elections themselves, give way to any Commonwealth legislation on the same subject.  (It is implicit in the submission that, in this context, the “elections” are the polls; I agree with this assumption.)  Therefore, one must first look at the CE Act, as it prescribes the method for choosing senators, including the times available for the nomination of candidates and as such, displaces any State legislation on the subject including the NSW Election Act.  Section 152 of the CE Act provides for the manner in which the writ shall be issued:

“(1)     Writs for the election of Senators for States, Senators for Territories or Members of the House of Representatives may be in the Form A, Form AA or Form B respectively in Schedule 1, shall be signed by the Governor of a State, the Governor-General or the Speaker, as the case requires, and shall fix the date for:

(a)     the close of the Rolls;

(b)     the nomination;

(c)     the polling; and

(d)     the return of the writ.

(2)       For the purposes of this Act a writ shall be deemed to have been issued at the hour of 6 o'clock in the afternoon of the day on which the writ was issued.”

41                  Section 155 provides:

“The date fixed for the close of the Rolls shall be 7 days after the date of the writ.”

42                  Section 156 then provides:

“(1)  Subject to subsection (2), the date fixed for the nomination of the candidates shall not be less than 10 days nor more than 27 days after the date of the writ.

(2)     Where a candidate for an election dies, after being nominated and before 12 o'clock noon on the day fixed by the writ as the date of nomination for the election, the day fixed as the date of nomination for the election shall, except for the purposes of section 157, be taken to be the day next succeeding the day so fixed.”

43                  On this basis, counsel submit that the CE Act thus determines the dates fixed for the close of rolls and nominations.  The CE Act does not make reference to the subject of the relevant times and places of the election, which are determined by the relevant State legislation.  Thus, whilst there is a timetable provided for in the NSW Election Act, as to matters preceding the poll it has been displaced by the provisions of the CE Act.  Of particular relevance is that the CE Act does not require publication of the writ in any Gazette as part of the issuing of the writ.  Indeed the effect of s 152 is that time must run from 6:00 pm on the day on which the writ was issued, in this case, from 6:00 pm on 8 October 2001.  The only relevant provisions of the NSW Election Act which have legal force are s 4B and s 4C which provide, respectively:

“4B.    The date fixed for the polling shall not be less than 23 days nor more than 31 days after the date of nomination.

4C.      The day fixed for the polling shall be a Saturday.”

44                  Thus the following timetable was correct:

            date fixed for the close of the rolls                     15 October 2001 (s 155 CE Act)

            date fixed for the close of nominations   18 October 2001 (s156 CE Act)

            date fixed for the poll                                        10 November 2001

45                  In my opinion, these submissions are correct.  There was no error in the dates fixed for the close of the rolls and for the close of nominations.  Accordingly, the date fixed for the election was also correct.  The dates are to be calculated from the date the writ was issued, namely 8 October 2001.  There is no substance in the matters raised by Mr Kelly.

46                  As I have already dealt with grounds three and four above, the final ground to be considered is ground five, which is as follows:

“No properly elected or appointed Premier of the State existed, such to advise Her Majesty in relation to the exercise of the powers and functions pursuant to 7(5) Australia Acts 1986 could be legally given.”

47                  As para 29 of the petition indicates, this ground depends on Mr Kelly’s submissions as to the lack of constitutional power of the NSW Parliament after 1986 in relation to NSW Governors.  For the reasons I have given above in respect of ground one, in my opinion, those submissions have no substance.

A new matter

48                  Finally, Mr Kelly also sought to assert, in argument, that, whatever the fate of his other legal submissions, the Queen, whether as Queen of the United Kingdom or as Queen of Australia, had never signed Professor Bashir’s commission.  This submission raises matters of fact which by no reasonable stretch can be regarded as having been set out in the petition.  The Court therefore has no jurisdiction in relation to those matters and it is unnecessary to say more.

Disposition

49                  Thus, in respect of some matters the petition is deficient for want of the assertion of enough facts to permit “proceedings [to be] had on the petition”, having regard to s 358(1) of the CE Act.  In respect of the remaining matters, the petition is plainly legally misconceived and no amount of factual evidence could cure the legal misconceptions.

50                  It follows that the petition should be dismissed.  My present sense is that costs should follow the event but I will permit the parties to be heard if there is to be any submission to the contrary.

Associate:

Dated:           11 September 2002

HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS

SYDNEY OFFICE OF THE REGISTRY                                                           No. 512 of 2002

BETWEEN

NED KELLY

Petitioner

GEORGE CAMPBELL

              First Respondent

HELEN COONAN

Second Respondent

KERRY NETTLE

Third Respondent

MARISE PAYNE

Fourth Respondent

SANDY MacDONALD

            Fifth Respondent

URSULA STEPHENS

          Sixth Respondent

ELECTION PETITION

This Petition concerns the Senate Election for the New South Wales, poll held 10 November 2001, writ returned 6 December 2001.

INTERPRETATION

Commission or AEC means the Australian Electoral Commission.

Constitution means the Constitution of the Commonwealth of Australia 1901.

Election means the election of six senators for the State of New South Wales held pursuant to the Writ issued by Professor Marie Bashir on the advice of Bob Carr.

Act means the Commonwealth Electoral Act 1918 (Cth) as amended

State means the State of New South Wales.

States means the Original States forming part of the Commonwealth of Australia pursuant to Commonwealth of Australia Constitution Act 1900 63 & 64 Victoria Ch 12.

Petitioner’s Nomination means nomination pursuant to s168 of the Electoral Act.

Senators’ Election Act means Senators’ Election Act 1903 (NSW) as amended

UK means United Kingdom and Northern Ireland

Writ means writ for the election of Senators directed to David Farrell, the Australian Electoral Officer for the State of New South Wales, commanding closure of the electoral roll on 15 October 2001, appointing the day and time of nomination 18 October 2001 at 12 o’clock noon, appointing the date of poll 10 November 2001, return of the writ on or before 16 January 2002.

THE ENTITLEMENT TO FILE THIS WRIT

The petitioner is a person qualified to vote under the laws of the State in the said election.

STATEMENT OF FACTS

1.                   Section 9 and 12 of the Constitution provide a writ for a Senate election shall be issued by the Governor of the State.

2.                   Senators’ Election Act sets out the relevant provisions of the States’ powers pursuant to section 9 of the Constitution to determine times and places of election.

3.                   On 1 March 2001 Professor Marie Bashir AC. purportedly took office pursuant to a commission from Her Majesty (Queen of Australia) appointing her as Governor in and over the State, on dint of the royal prerogative pursuant to Australia Acts 1986.

4.                   The poll for the election was held on Saturday November 10, 2001 and the writ was returned to Professor Marie Bashir on 6 December 2001 by the AEC in purported compliance with section 283 of the Act.

GROUND ONE

The Governor’s commission was invalid; as a consequence no power existed to issue the Writ

5.         The Australia Act 1986 (Cth) is an unlawful enactment as it was based upon the Commonwealth’s powers under s51 (xxxviii) to so legislate.  This power required the request and concurrence of the Parliaments of all States; which in the case of Queensland, Australia Acts (Request) Act 1985 the relevant legislation was assented to without first securing by referendum the approval of a voting majority of electors; as a consequence the said Act and attaching schedules, 1 & 2 which unambiguously proposed alterations to the office of Governor and to s11A, 11B and 14 of the sections embedded pursuant to s 53 of the Constitution Act 1867(Q1d) was unconstitutional, as a consequence the enactment is a nullity, as must any commission reliant upon the said enactment.

6.         The Australia Act 1986 (Imp) as passed by the (UK) and assented to by Her Majesty (UK) on the advice of her Privy Council and brought into force by statutory instrument 1986/319 by order of the Secretary of State at 5 o’clock GMT 3 March 1986 pursuant to s4 Statute of Westminster 1931 (Imp) was an unlawful enactment or of no legal or constitutional effect, as must be any commission reliant thereon as:-

(a)           the political and legal evolutionary nature between the federation of the Australian States and the UK was such that the nature of the former colonies had fundamentally changed with federation and at the relevant time, 1986, the Imperial links between the States as part of the Commonwealth of Australia and the UK were terminated; thus the UK was a foreign power Sue v Hill and as a consequence without any valid legal power internationally or domestically to legislate for the Commonwealth or any of the Australian States.  Historically, this had been the case at the latest, since 1958, as evidenced by the convention of the Territorial Sea and Continguous Zone China Ocean Shipping Co v South Australia, but more probably since proclamation in the UK of the British Nationality Act 1948 (Imp) and/or since proclamation in Australia of the Nationality & Citizenship Act No 83 1948 (Cth).

(b)           Additionally and in the alternative, such legislation required an empowering statute Australian (Consent and Request Act) No. 143 of 1985 assented by the Governor‑General 4 December 1985; such legislation being enacted by power 51 (xxxviii) was however ultra vires, on the constitutional grounds set out in paragraph 5 hereof

(c)           the term royal prerogative is used to describe the powers of the Queen of the UK as defined by statute and common law history of the UK.  Terminated, as a consequence of the evolutionary constitutional changes set out in paragraph 6(a) hereof.  It is a political and legal fiction of Australia to describe the power as dint of the Australia Acts 1986 as the source of any such power.  The very nature of that legislation (if constitutional) was to terminate all appeals to Her Majesty in Council, political and legal responsibilities for the government of any State and legislative links between the Parliament of the UK and the States and the Letters Patent proclaimed by Her Majesty Queen of the UK in 1985 purportedly to reconstitute the offices of various State Governors (i) never came into effect as the Australia Acts 1986 were a nullity and (ii) was misconceived as there was inter alia no scope for Her Majesty in any capacity for consilience in extra constitutional formulations such is outside the terms of Constitution Act and such documents were from the sovereign of a foreign power; as a consequence, were of no consequence, here.

GROUND TWO

The terms of the writ as issued were illegal and constitutionally invalid; franchise skewed, poll illegal, proprietary of conduct of election, substantial contraventions, official error‑ no due electing according to law.

7.         On Monday 8 October 2001 purportedly as Governor of the State, Professor Marie Bashir issued a writ for the election, commanding the place and times of election.

8.         On Monday 8 October a copy of the writ was electronically forwarded to the Government Printing Service of NSW, the heading purported to proclaim the issue of the writ same date.

9.         On Friday 12 October 2001, Special Gazette No 155 page 8497 was printed and published available to the public at 2.00pm.  Time must run from publication by Government Gazette.

10.       The writ contained times that were therefore illegal, in that they differed and thus were in breach of provisions of sections 4A, s4B, s4C & 6 of the Senators’ Elections Act thus usurped the powers vested in the State Parliament of NSW pursuant to sections 7, 9 & 107 and more importantly, the franchise and thus principle of representative government pursuant to sections 7, 8, 24, 41 of the Constitution and the Act legislated by power of the Federal Government pursuant to section 51 of the Constitution.

11.       On 20 October 2001 Mr. Gerrit Hendrik Schorel‑Hlavka, of Melbourne informed the AEC by e-mail that the writ and other Gazetted writs were in fact illegal and deficient.  The AEC deliberately ignored the communication and thus its primary responsibilities and duties and when Mr. Schorel‑Hlavka sought injunctive relief from the Federal Court of Australia the AEC         unreasonably and deceitfully opposed the relief sought. Project Blue Sky v Australian Broadcasting Authority Dawson J.. “Either there was compliance or there was not”

12.       INTERPRETATION ACT 1987 (NSW)

s36 Reckoning of time

(1)        If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2)        If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of’ any thing falls:

            (a)     on a Saturday or Sunday, or

            (b)     on a day that is a public holiday or bank holiday in the place which the thing is to be or may be done, the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

(3)        If in any Act or instrument a period of time is prescribed or allowed for the doing of any thing and a power is conferred on any person or body to extend the period of time.

                        (a)     that power may be exercised, and

                        (b)     if the exercise of that power depends on the making of an application for an extension of the period of time such an application may be made, after the period of time has expired.

13.       The Senate Election Act section 4, states:­

            “the date fixed for close of the election rolls shall be 7 days after the date of the Writ”

14.       The correct legal date for the close of the rolls given the different dates between proclamation       and publication, must either be (a) 16 October or (b) 22 October 2001.

15.       The Senate Election Act s4A(I), states­

            “the date fixed for the nomination of the candidates shall not be less than 10 days nor more than 27 days after the date of the writ”

16.       The correct legal date for the close of nominations, given the different dates between proclamation and publication, must either be (a) 19 October or 23 October 2001.

17.       The Senate Election Act s4B, states:­

            “The date fixed for polling shall not be less than 23 days nor more than 31 days after the date of nomination”

18.       The Senate Election Act s4C, states:­

            “The date fixed for the polling shall be a Saturday”

19.       The correct legal date for the poll, can only be the 17 November 2001.

GROUND THREE & FOUR

Petitioner’s nomination unreasonably and wrongfully rejected ‑ held out of election ‑ right to participate in public affairs marginalized, franchise skewed for ulterior purpose on facts shown.

Illegal Practice and Undue Influence by AEC pursuant to sections 324 and 327 within the meaning of section 352 of the Act.

20.       On Friday 11 October 2001 the petitioner decided to stand as a candidate for the Senate of the State and obtained from the Divisional Returning Officer (DRO) at the Richmond Office, an allegedly correct group nomination form. The DRO admitted to the petitioner, when asked questions about the form that he knew nothing about Senate elections.

21.       Relying on this form and advise received DRO at Tweed Heads and by telephone conversation with Mr. David Farrell the Australian Electoral Officer (AEO) for the State and Deputy Commissioner Ms Anne Bright. The petitioner was lead to believe his nomination and deposit fee had to be personally presented at the Commission’s head office in Sydney not later than 12 o’clock noon, 18 October 2001. The petitioner who lives in Tweed Heads departed on the afternoon of Wednesday 17 October 2001 to travel to Sydney by train from Murwillumbah NSW. After his departure, Ms Anne Bright telephoned the petitioners home and in his absence left a message on his answering machine to the effect that, he had been given the wrong forms.

22        On the morning of 18 October 2001 the petitioner due to delay occasioned by engine failure aborted his rail travel to Sydney and travelled to the nearest office of the Commission, being its Newcastle offices.

23.       On arrival, the petitioner by telephone was advised by Ms Anne Bright he could forward his nomination by facsimile, which he subsequently did at approximately 10.55am.  Subsequent additional pages were progressively forwarded between the offices up until 12 o’clock noon that day, as a consequence of an incomplete group nomination being given to the petitioner.

24.       The petitioner after forwarding what he believed was his nomination by facsimile attempted to tendered his nomination deposit of $1,400 dollars in Australian currency notes ($50) notes to the DRO Officer at Newcastle. The deposit was refused by the DRO Officer, stating words to the effect “if 1 take that 1 will be accepting your nomination”.

25.       The petitioner, as a result was subsequently informed by telephone firstly by Ms Bright and at approximately 11.30am. and then by Mr. David Farrell that his nomination deposit would only be accepted if tendered personally or by agent at the Commission’s Sydney offices not later than 12 o’clock noon that day. As a result the petitioner arranged for an agent to personally lodge the nomination deposit on my behalf.

26.       At approximately 12.10pm 18 October 2001, the petitioners agent attended the Sydney offices of the Commission and offered to tender the said nomination deposit to a Mr. Geoffrey Miles an AEC officer who rejected it using words to the effect “We cannot receive money after midday”.

27.       As a result the petitioner’s nomination was not declared & his name not put on the ballot paper.

28.       The rejection of and the negligent advise, acts and omissions by AEC officers towards the petitioner constitute illegal practice within the meaning of s352 of the Act.

GROUND FIVE

No properly elected or appointed Premier of the State existed, such to advise Her Majesty in relation to the exercise of the powers and functions pursuant to 7(5) Australia Acts 1986 could be legally given.

29.       Mr. Bob Carr had no power to advise as to the issuing of the writ or appointment of Professor Marie Bashir; as the commissions’ of her purported predecessors, the Honourable Gordon J Samuels, Rear Admiral Peter Sinclair and Rear Admiral Sir David Martin were equally invalid as setout out aforesaid; as a consequence so too then was the appointment of the purported Premier and general state elections held since 1986, upon which the purported members of the States Parliament, rely for their authority.

PRAYER FOR RELIEF

30.       An Order declaring the election for six Senators for the State of NSW, absolutely void.

31.       An Order declaring each of the respondents returned as elected, was not duly elected.

32.       An Order that the Commonwealth pay the petitioner’s costs on an indemnity basis.

Dated this             15^th           of January 2002

Ned Kelly