FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 300

ANTHONY JOSEPH HUDSON v THE HONOURABLE WARREN ENTSCH MP AND AUSTRALIAN ELECTORAL COMMISSION

QUD 46 OF 2005

DOWSETT J

14 MARCH 2005

CAIRNS

SITTING AS THE COURT OF DISPUTED RETURNS

ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Paragraphs 1-8 of the petition filed 18 February 2005 be struck out;

2.         Paragraphs 12-31 of the petition filed 18 February 2005 be struck out;

2.         Further proceedings in connection with the petition filed on 18 February 2005 be limited to pars 9-11 thereof. 

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

SITTING AS THE COURT OF DISPUTED RETURNS

ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     At the election held on 9 October 2004, the first respondent was the successful candidate in the electoral division of Leichhardt.  The petitioner was entitled to vote in that division.  The relevant writ was returned on 11 November 2004.  By petition filed in the High Court on 2 December 2004, the petitioner sought an order to the effect that the first respondent had not been duly elected and that his election should be declared void.  By summons filed on 10 January 2005, the second respondent sought leave to appear and other relief, including remitter to this Court and dismissal of the petition.  On 7 February 2005, the matter was remitted to this Court.  I have, today, heard the application for dismissal of the petition.  Counsel for the second respondent submitted, in effect, that the petition did not allege grounds which were capable of leading to the relief sought and/or that it did not comply with s 355 of the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”).  I have concluded that a substantial part of the petition must be struck out.  That, of course, will narrow the issues for determination at the hearing.  I will not give detailed reasons for my views.  If necessary, I will do so at a later stage. 

2                     Section 355 of the Electoral Act provides relevantly:

‘Subject to section 357, every petition disputing an election or return in this Part called the petition 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;

(c)        be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, 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 or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment;

(d)       be attested by 2 witnesses whose occupations and addresses are stated;

(e)        be filed in the Registry of the High Court within 40 days after:

(i)        if the polling day for the election in dispute is not the polling day for any other election–the return of the writ for the election; or

(ii)       if the polling day for the election in dispute is also the polling day for another election or other elections–the return of whichever of the writs for the election in dispute and that other election or those other elections is returned last; or

(iii)      if the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution is in dispute–the notification of that choice or appointment.’

3                     Subsections 358(2) and (3) provide:

‘(2)      The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa).

(3)       The Court shall not grant relief under subsection (2) unless it is satisfied that:

(a)       in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies; and

(b)       the grant of relief would not unreasonably prejudice the interests of another party to the petition.’

4                     For the purpose of measuring the extent to which the petition complies with pars 355(a) and (aa), I adopt the observations made by Dawson J in Sykes v The Australian Electoral Commission (1993) 115 ALR 645, especially at 648 - 649 as follows: 

‘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 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.’

5                     The petition raises a number of distinct allegations.  Paragraphs 1-8 deal with certain electoral signs which were erected by the petitioner and, as he alleges, removed without his authorisation.  Paragraphs 9-11 allege that the first respondent made certain statements on television and implies that as a result, other signs were knocked down.  Paragraphs 12-20 deal with difficulties which the petitioner experienced in having new signs printed.  Paragraphs 21 and 22 deal with two discrete incidents.  Paragraphs 23-31 allege that the first respondent threatened another candidate for election with a view to causing her to withdraw her nomination.  Each of these matters must be dealt with separately.  Each set of allegations must be measured against the test prescribed by Dawson J in Sykes. 

6                     Pursuant to subs 360(3), the Court of Disputed Returns (the High Court or, for present purposes, this Court) may invalidate an election on the ground that illegal practices were committed in connection with it.  An “illegal practice” is a contravention of the Electoral Act or regulations made thereunder.  (See s 352.)

7                     Section 362 of the Electoral Act 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.

(4)        The Court of Disputed Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground that someone has contravened the Broadcasting Services Act 1992 of the Radiocommunications Act 1992.

8                     The terms “bribery” and “corruption” both mean “a contravention of s 326”.  (See s 352.)  Section 326 provides as follows:

‘Bribery

(1)       A person shall not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain, any property or benefit of any kind, whether for the same or any other person, on an understanding that:

(a)       any vote of the first-mentioned person;

(b)       any candidature of the first-mentioned person;

(c)        any support of, or opposition to, a candidate, a group of candidates or a political party by the first-mentioned person;

(d)       the doing of any act or thing by the first-mentioned person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or

(e)        the order in which the names of candidates nominated for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper;

will, in any manner, be influenced or affected.

Penalty:  $5,000 or imprisonment for 2 years, or both.

(2)       A person shall not, with the intention of influencing or affecting:

(a)       any vote of another person;

(b)       any candidature of another person; or

(c)        any support of, or opposition to, a candidate, a group of candidates or a political party by another person;

(d)       the doing of any act or thing by another person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or

(e)        the order in which the names of candidates for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper;

give or confer, or promise or offer to give or confer, any property or benefit of any kind to that other person or to a third person.

Penalty:  $5,000 or imprisonment for 2 years, or both.

(3)       This section does not apply in relation to a declaration of public policy or a promise of public action.’

9                     The expression “undue influence” means ‘a contravention of s 327 of [the Electoral Act]’ or s 28 of the Crimes Act 1914 (Cth) (the “Crimes Act”).  (See s 352.)  Section 327 of the Electoral Act provides:

‘Interference with political liberty etc.

(1)       A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.

Penalty:  $1,000 or imprisonment for 6 months, or both.

(2)       A person must not discriminate against another person on the ground of the making by the other person of a donation to a political party, to a State branch or a division of a State branch of a political party, to a candidate in an election or by-election or to a group:

(a)       by denying him or her access to membership of any trade union, club or other body;

(b)       by not allowing him or her to work or to continue to work;

(c)        by subjecting him or her to any form of intimidation or coercion;

(d)       by subjecting him or her to any other detriment.

Penalty:

(a)       if the offender is a natural person–$5,000 or imprisonment for 2 years, or both; or

(b)       if the offender is a body corporate–$20,000.

(3)       A law of a State or Territory has no effect to the extent to which the law discriminates against a member of a local government body on the ground that:

(a)       the member has been, is, or is to be, nominated; or

(b)       the member has been, is, or is to be, declared;

as a candidate in an election for the House of Representatives or the Senate.

(4)        In subsection (3):

member of a local government body means a member of a local governing body established by or under a law of a State or Territory.’

10                  Section 28 of the Crimes Act provides:

‘Interfering with political liberty

Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.

Penalty:  Imprisonment for 3 years.’

11                  Subsection 362(1) mandates avoidance of an election in the event that the successful candidate has committed or attempted to commit bribery or used or attempted to use undue influence.  Subsection 362(3) provides that certain conduct is not to lead to that result unless the Court is satisfied that:

®                 the result of the election was likely to have been affected by the conduct in question; and

®                 it is just that the election be avoided.

12                  Subsection 362(3) operates where the conduct in question:

®                 is an illegal practice committed by somebody other than the (successful) candidate without his or her knowledge or authority; or

®                 is an illegal practice other than bribery or corruption or attempted bribery or corruption.

13                  It seems to be at least arguable that the illegal practices excluded from the operation of subs 326(3) by par 362(3)(b) do not include undue influence or attempted undue influence, which is conduct contrary to s 327.  Bribery and corruption involve conduct contrary to s 326.  If that is correct, then the operation of subs 362(1), in the case of undue influence, would be limited by the operation of subs 362(3).  The parties did not address this aspect.  It may be necessary to consider it at a later stage in these proceedings.

14                  Much of the conduct alleged in the petition is not attributed to any particular person, let alone the first respondent.  There is no express allegation that any such conduct occurred with the first respondent’s knowledge or authority, save possibly such authority as might be inferred from the statements alleged in par 10 of the petition.  The petitioner also argues that the first respondent should be taken to have been aware of, or to have authorized any conduct by the “Liberal Party”, but that is not alleged in the petition.  Neither are facts alleged upon which such an inference could be based.  The petition contains no allegation that the result of the election was likely to have been affected by the alleged conduct or that it is just that the election be avoided.  Had the petitioner made either allegation, he would have had to identify the facts upon which he relies to establish these matters.  No such facts have been pleaded.  It follows that the petition does not raise a case for avoidance of the election in reliance upon any conduct to which subs 362(3) applies.

15                  The inter-relationship between subs 352(2) and subss 362(1) and (3) is not clear.  It seems that the circumstances in which one person will be criminally responsible for the acts of another (as set out in subs 352(2)) are different from those in which a candidate will be held responsible for the conduct of another for the purposes of s 362.  Subsection 352(2) also differs from the analogous provision (s 11.2) in the Criminal Code Act 1995 (Cth). 

16                  In any event, I am presently concerned only with the effect of s 362.  As I understood the petitioner, he complains of conduct which was in breach of sections 326 and 327 of the Electoral Act.  He has not sought to establish the conditions precedent to relief identified in subs 362(3).  In other words, he seeks to avoid the election upon the basis of:

®                 the first respondent’s conduct; or

®                 conduct of which the first respondent had knowledge or which he authorized.

17                  Although the petitioner claims that he relies on s 326 of the Electoral Act, there is no allegation in the petition that the first respondent offered or conferred property or benefit to, or on any other person.  The petitioner submits that to threaten detriment is, in effect, to offer a negative benefit.  It seems to me, however, that where it is alleged that there has been a threat of detriment, as opposed to the offer of a benefit, the relevant provision is s 327 and not s 326.  The better view of the petitioner’s case is that he alleges numerous examples of undue influence contrary to subs 327(1).

18                  Sub-section 327(1) provides:

‘A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.’

19                  The petitioner submits that the relevant political right is, in the case of the conduct alleged in pars 1-8, 9-11, 12-20, 21 and 22, his right to make comments concerning a candidate for public office.  Indeed, he asserts a broader right to make political comments at any time, regardless of whether such comments are relevant to an election.  The second respondent submits that a much narrower interpretation of subs 327(1) is appropriate.  That view is based, substantially, upon the history of the section and, in particular, upon references in some earlier analogues to conduct designed to overbear the will of an elector as to the way in which he or she might vote.  The second respondent urges that approach to the present section.  The difficulty with this approach, as it seems to me, is that the language of s 327(1) suggests a much broader intent.  I suspect that the true meaning of the subsection depends upon the meaning of the term “political right”.  That meaning is not immediately clear to me.  For the purposes of this application to strike out the petition, I am inclined to accept that the petitioner’s broader view is arguably correct.  I do not wish to say more about that matter for the moment as it will be necessary for me to address it in some detail at a later stage in these proceedings.

20                  Returning to the petition, I deal firstly with pars 1-8.  Those paragraphs contain no allegation of misconduct by the first respondent, nor do they bear any demonstrated relevance to other matters asserted in the petition.  In those circumstances they should be struck out.  I will return to pars 9-11 at a later stage.  As to pars 12-20, they also contain no allegation against the first respondent.  It is, in effect, submitted that he should be held responsible for anything that the Liberal Party (whatever that term means in this context) did during the election campaign.  However the evidence said to establish relevant conduct by the “Liberal Party” seems to be second- or third-hand.  Even accepting that evidence at face value, the petitioner does not allege that the first respondent knew of, or authorized such conduct or identify any factual basis for so inferring.  In those circumstances pars 12-20 must be struck out.  Similar comments apply to the matters raised in pars 21 and 22.  They must also be struck out. 

21                  Paragraphs 23-31 raise a separate and quite serious allegation that the first respondent told Mr Bonneau that unless another candidate, Ms Jen Sackley, withdrew her candidacy he would publish “dirt” concerning her.  The political right in this case is, presumably, Ms Sackley’s right to stand for election.  It seems that Mr Bonneau informed Ms Sackley of the first respondent’s comments, but there is no allegation that the first respondent asked or authorized him to do so or of any facts from which I could infer such a request or authorization.  It is therefore impossible to make out any relevant allegation of misconduct against the first respondent arising out of the matters alleged in pars 23-31.  Those paragraphs should be struck out.  I should also observe that, accepting the allegations at face value, there is no evidence as to the nature of the information which the first respondent proposed to disclose.  It may be that the relevant information could properly have been ventilated by the first respondent in the election campaign in the exercise of a political right such as that claimed by the petitioner.  It is not necessary to take that matter further for present purposes.  I stress that there is no evidence before me of any matter adverse to the reputation of Ms Sackley.

22                  Paragraphs 9-11 deal with what I suspect has always been the major bone of contention – that the first respondent encouraged people to knock down signs erected by the petitioner.  Those signs featured a drawing which bore some resemblance to the first respondent, with a number of additional features designed, apparently, to challenge his honesty and, perhaps, his character.  It is not immediately clear to me that those signs should be characterized as an expression of political opinion in connection with the election, which view the petitioner urges.  However as much is arguable.  It is also possible that to knock down an electoral sign put up by another person may itself be political comment, at least if the sign is not damaged or stolen.  If such a view is correct then, on the petitioner’s view of subs 327(1), that conduct might also be protected.  The resolution of this aspect of the case will involve the proper construction of s 327 and a consideration of the facts.  Those matters are better addressed at the hearing of the petition.  That hearing should proceed, limited to pars 9 - 11 of the petition.

Associate:

Dated:              23 March 2005