FEDERAL COURT OF AUSTRALIA

Australian Electoral Commission v Wilson [2003] FCA 434

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 102

Whitby v Garlett (2000) 98 FCR 585 referred to

Hansen v Australian Electoral Commission [2000] FCA 606 referred to

Re Wood (1987) 167 CLR 145 followed

Pettit v Atkinson (1994) 50 FCR 174 cited

Free v Kelly (1996) 185 CLR 295 applied

Sykes v Cleary (1992) 176  CLR 77 cited

AUSTRALIAN ELECTORAL COMMISSION v HAROLD STEVEN WILSON & BETTY DALY & VICTOR THOMAS PARRY

D 21 of 2002

MANSFIELD J

9 MAY 2003

ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

1                     This is a petition concerning the election of a Regional Councillor for the Daly River ward of the Jabiru Regional Council held on 19 October 2002 (the election).  On 30 April 2003, having heard the parties, I made the following orders:

1.                  That Harold Steven Wilson was not qualified to stand for election as the regional councillor for the Daly River ward of the Jabiru Regional Council held on 19 October 2002.

2.                  That Harold Steven Wilson was not duly elected as the regional councillor for the Daly River Ward of the Jabiru Regional Council held on 19 October 2002.

3.                  That the Australian Electoral Commission conduct as soon as reasonably practicable a fresh election for the member as the regional councillor for the Daly River ward of the Jabiru Regional Council.

2                     These are my reasons for making those orders.

3                     The statutory framework governing the election, conducted under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the Act) and under the ATSIC (Regional Council Election) Rules 1990 (the Election Rules) is set out by French J in Whitby v Garlett (2000) 98 FCR 585 at 588-591, and by Kenny J in Hansen v Australian Electoral Commission [2000] FCA 606 at [5]-[9].  I respectfully adopt their Honours’ analysis of those provisions and that framework.  I shall refer to particular provisions of the Act and the Election Rules only as necessary.

4                     The Jabiru region is one of four regions of the Northern Territory (North) zone established under s 91 and Sch 1 of the Act.  There is a regional council for each region:  s 92, and pursuant to s 93(3) the regional council for the Jabiru region is called the Jabiru Regional Council.  The functions and powers of regional councils are prescribed principally in ss 94 and 95 of the Act.  The regional councils comprise the prescribed number of members elected in accordance with Div 4 of Pt 3 of the Act and such additional members as are appointed under ss 115A and 116 of the Act:  see s 115(1).

5                     Division 4 of Pt 3 (ss 100-104) deals with regional council elections.  The elections are conducted by the Australian Electoral Commission:  s 100.  They are conducted in accordance with the Act and the Election Rules prescribed under s 113.  The relevant election rules are those to which I have referred.  As contemplated by s 100A, the rules divide the Jabiru Regional Council into wards and fix the designated number of councillors for each ward.  The Jabiru region has five wards, one of which is the Daly River ward.  The elected councillors for each of the five wards together comprise the Jabiru Regional Council.  The designated number of members of the Jabiru Regional Council for the Daly River ward is, and was for the 2002 round of elections, one.

6                     On 19 July 2002 the Minister for Immigration & Multicultural & Indigenous Affairs acting in accordance with s 104(2) of the Act fixed 19 October 2002 as the date for polling in the 2002 round of regional council elections to be held pursuant to the Act:  Commonwealth Gazette S275, 19 July 2002.  On 9 August 2002 the Acting Minister for Immigration & Multicultural & Indigenous Affairs varied that notice by fixing 12 November 2002 as the day for polling in the regional council elections in Tasmania, Gazette S298, 13 August 2002.  The variation is of no significance to the present petition, save that it meant that the last day of the 2002 round of regional council elections was the day the polls were declared in Tasmania, namely 20 November 2002.

7                     The period fixed in accordance with rules 18 and 19 of the Election Rules during which any person may nominate as a candidate for the elections with the Regional Returning Officer for the Jabiru region was between 20 August and 18 September 2002.  During that period, the Regional Returning Officer received three nominations for the election.  They were from the respondents Mr Wilson, Ms Daly, and Mr Parry.  On 19 September 2002 the Regional Returning Officer declared each of those three nominations valid.

8                     Consequently, an election was held to elect the councillor for the Daly River ward of the Jabiru Regional Council.  The election took place as required by s 107 of the Act.  Voting is not compulsory, but is by an optional preferential voting system:  r 83(1) of the Election Rules and ss 109 and 110 of the Act.  The successful candidate is to be the candidate who obtains an absolute majority of the formal votes cast after distribution of preferences.

9                     Polling took place between 14 and 16 October 2002.  There were 256 votes cast in the election, of which 252 were formal and four informal.  Mr Wilson received 107 first preference votes, Ms Daly 58 first preference votes, and Mr Parry 87 first preference votes.  Consequently, the preferences of Ms Daly were distributed.  At the end of the distribution of her preferences, Mr Wilson had 140 votes and Mr Parry 111.  As Mr Wilson then had an absolute majority of votes required for his election, he was declared duly elected as the regional councillor of the Daly River ward of the Jabiru Regional Council.

10                  Section 102(1)(d)-(ea) of the Act provides:

“(1)     A person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward if:

…

(d)       subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer; or

(da)     subject to subsection (2), the person has been convicted of 2 or more offences against a Commonwealth, State or Territory law and sentenced in respect of all the offences to a single penalty of imprisonment for one year or longer; or

(e)        subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer; or

(ea)      subject to subsection (2), the person has been convicted of 2 or more offences against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of all the offences to a single penalty of imprisonment for 3 months or longer;”

Those eligibility requirements are reflected in the nomination form, so Mr Wilson’s nomination (inter alia) that he had not been convicted of an offence (that did not involve dishonesty) and sentenced to prison for one (1) year or more.

11                  In fact, Mr Wilson was convicted of an offence against the law of the Northern Territory on 6 June 2002 in the Northern Territory Court of Summary Jurisdiction, namely unlawful assault, accompanied by circumstances of aggravation, committed on 15 September 2001, contrary to s 188(2) of the Criminal Code (NT).  On 6 June 2002 he was sentenced to imprisonment for a term of 12 months commencing on that date.  It was further ordered that he be released after serving four months of that term of imprisonment, and that the balance of the term of imprisonment be suspended.  He was in fact released under an unsupervised bond on 5 October 2002.

12                  In my view, those facts demonstrate that Mr Wilson was not qualified to stand for election or to be elected as the regional councillor for the Daly River Ward of the Jabiru Regional Council by reason of s 102(1)(d) of the Act.  He had been convicted of an offence against a law of the Northern Territory and sentenced to imprisonment for one year.  The eligibility requirements imposed by ss 102(1)(d)-(ea) are not absolute.  Subsections 102(2) and (3) provide:

“(2)     In spite of subsection (1), a person covered by paragraph 1(d), (da), (e) or (ea) is not disqualified by that paragraph from standing for election, or being elected, as a member of a Regional Council if:

(a)               where the person was never actually imprisoned for the offence or offences – at least 2 years have elapsed since the person was convicted;

(b)               where the person served a term of imprisonment for the offence or offences – at least 2 years have elapsed since the person was released from prison; or

(c)               in any case – the Federal Court of Australia, on application by the person, declares that in spite of the person’s conviction, he or she ought not to be disqualified from standing for election, or being elected, as a member of a Regional Council.

(3)          The Federal Court of Australia has jurisdiction with respect to matters arising under subsection (2).”

It is not necessary to refer further to those subsections as, on the evidence, Mr Wilson does not fall within s 102(2)(a) or (d) and he has made no application to the Court under s 102(2)(c).

13                  In my view, consistent with the reasons for decision of the High Court (Mason CJ, Wilson, Brennan, Deane, Dawson Toohey and Gaudron JJ) in Re Wood (1987) 167 CLR 145, especially at 162-164, the result is that Mr Wilson was not qualified to be elected, and was not duly elected, as the regional councillor for the Daly River ward of the Jabiru Regional Council.  He was a person who lacked the qualifications required by s 102 of the Act, so was incapable of being chosen as the councillor for that ward.  The legal status of councillor could not be, and was not, available to him.

14                  It then becomes necessary to determine what appropriate remedial orders should be made.  Under cl 10 of Sch 4 to the Act, the Court may make any order or give any direction that it thinks necessary or convenient for the purpose of giving effect to the declaration that Mr Wilson has not been duly elected.  Two particular options were discussed in the course of the hearing.  One involved a special recount of the votes passed at the election, in effect distributing the preferences of Mr Wilson to Ms Daly and to Mr Parry to determine then which of those two candidates secured an absolute majority of the formal votes cast in the election.  The other was to order a fresh election for a member to represent the Daly River ward on the Jabiru Regional Council.  Ms Daly did not appear at the hearing.  Mr Parry appeared, and supported the view that the Court should order a fresh election for a member to represent the Daly River ward on the Jabiru Regional Council.  It is of course not known at present what the outcome of distributing the preferences of Mr Wilson (his 107 formal votes) would be as that process has not at any time been undertaken by the Regional Returning Officer.

15                  In determining the appropriate orders to make, the Court should endeavour to give effect, as far as possible, to the will of the electorate:  see e.g. per Gray J in Pettit v Atkinson (1994) 50 FCR 174 at 180.

16                  In this instance, in my judgment, it was appropriate to make an order for a fresh election to be conducted for the regional councillor to represent the Daly River ward of the Jabiru Regional Council.  I think there is some analogy to be drawn with the process of election of Members of the House of Representatives, as they are elected in single member electorates upon reaching an absolute majority of the votes cast in the election.  Brennan CJ in Free v Kelly (1996) 185 CLR 296 at 303 expressed the view in the case of a single member preferential election, a recount of votes was more likely to produce distortion than a fresh election.  The election involved determining which candidate secured an absolute majority of the formal votes cast (as voting was not compulsory) in a single member ward:  Sch 2A of the Act.  In this matter, it is necessary to consider how best to secure or determine the will of the electorate.  In Free v Kelly Brennan CJ said at 303 that in the case of the election for a Member of the House of Representatives, the Court would not warrant or make an order for a special count unless a special count would reflect the voters true legal intent, or, conversely, would not result in a distortion of the voter’s real intentions.  His Honour was following the earlier decision in Sykes v Cleary (1992) 176 CLR 77 at 102.

17                  His Honour then remarked in Free v Kelly at 303-304:

“The principle to be derived from both cases is that an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters’ true legal intent or, conversely, would not result in a distortion of the voters’ real intentions (26).  In In re Wood, the Court was satisfied that a special count would reflect the voters’ true intentions but in Sykes v Cleary, no special count could be ordered ‘because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent’.”

18                  The present circumstances are, in one respect at least, different from those being addressed in Free v Kelly.  There are here only three candidates.  If Mr Wilson was ineligible to be a candidate so his preferences were distributed, there would not be the risk discerned in Free v Kelly by Brennan CJ that the distribution of Mr Wilson’s preferences might affect the order of exclusion of the less favoured candidates in a way which might have affected the proper determination of the will of the electorate.

19                  However, the election as prescribed by Sch 2A under the Act was for a single member of a regional council ward.  It requires an absolute majority system akin to the House of Representatives electoral system.  There is no evidence that Mr Wilson represented a particular constituency or set of views; nor indeed is there evidence to the contrary.  It may be that, had his ineligibility been discerned, those who voted for him may have expressed preferences for one or other of Ms Daly or Mr Parry in a different way from that which they expressed their preferences on the votes which they cast for Mr Wilson.  It may be that the preferences were expressed with some indifference through a belief that Mr Wilson would be elected.  It is presently unknown how many of the formal votes cast in favour of Mr Wilson contain preferences.  It may be that the communications to the electorate by Ms Daly or Mr Parry may have been different.  At a more remote level, it may be that if Mr Wilson had not stood for election some other person reflecting the views for which he stood may have been a candidate.  I simply do not know.  I am therefore not satisfied that a special count by the distribution of the preferences of Mr Wilson’s votes would probably represent the will of the electorate, had he not been a candidate at all.

20                  It was in the light of that conclusion that I determined the proper course was to order a fresh election of the member to be the councillor for the Daly River ward on the Jabiru Regional Council.

Associate:

Dated:              9 May 2003