FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 460

ELECTIONS (Parliamentary) - Court of Disputed Returns - petition - disputing election - avoidance of elections - ‘duly elected’

ELECTIONS (Parliamentary) - Illegal practice - bribery, undue influence, corruption -incitement - electoral signs - party to offences - aids, abets, counsels or procures - support of, or opposition to, a candidate - defamation of a candidate - ‘political rights or duties’- ‘contravention’

WORDS AND PHRASES – ‘interference with political liberty’ - ‘political right’

Commonwealth Electoral Act 1918 (Cth) ss 326, 327, 350, 352, 354, 360, 362, 386

Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s114

Crimes Act 1914 (Cth) s 28

Criminal Code Act 1995 (Cth) s 11.4

Broadcasting Services Act 1992 (Cth)

Radio Communications Act 1992 (Cth)

Crimes Act 1900 (NSW)

Criminal Code 1899 (Qld)ss 78, 102

The Electoral Code 1896 (SA) ss 157, 158

Electoral Act 1899 (WA) ss 177, 178

Zanardelli Code (Italy)

Britt v Robinson (1870) LR 5 CP 503 considered

Evans v Crichton-Browne (1980-1981) 147 CLR 169 considered

Dimozantos v The Queen (1991) 56 ACrimR 345 applied

Giorgianni v The Queen (1984-1985) 156 CLR 473 followed

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 considered

Lichfield (1869) 1 O’M&H 25 considered

Walsh v Sainsbury (1925) 36 CLR 464 applied

Webster v Deaham (1993) 116 ALR 223 considered

Yorke v Lucas (1985) 158 CLR 661 considered

Rogers on Elections, 20^th edn, (1928) vol 2 Stevens and Sons Ltd, London

Russell on Crime, 12^th edn, (1964), Stevens and Sons Ltd, London

Archbold, Criminal Pleading, Evidence and Practice, 2004 edn, Sweet & Maxwell, London

Joint Select Committee on Electoral Reform, First Report (September 1983) Parliament of the Commonwealth of Australia

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

QUD 46 OF 2005

DOWSETT J

26 APRIL 2005

CAIRNS

SITTING AS THE COURT OF DISPUTED RETURNS

REASONS FOR JUDGMENT

Background

1                     The petitioner (“Mr Hudson”) is a self-employed television antenna installer.  He resides in Cairns.  At all material times he was enrolled as an elector pursuant to the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”) in the electoral division of Leichhardt.  At all material times prior to 9 October 2004, the first respondent (“Mr Entsch”) was the Member of the House of Representatives for Leichhardt. 

2                     At some time prior to 4 June 2002, Mr Hudson became aware of a difficulty in installing television antennae on steel roofs manufactured by, or from material supplied by, BHP Steel Ltd (“BHP Steel”).  He considered that he could solve the problem and communicated with BHP Steel, suggesting that it and he should work together to develop that solution.  At some time prior to 4 June 2002, Mr Hudson approached Mr Entsch, asking the latter to encourage BHP Steel to take up his suggestion.  On 4 June 2002, Mr Entsch wrote to BHP Steel urging it to ‘… work closely with Mr Hudson and the Australian Building Codes Board to seek a solution to this serious matter.’  In that letter he observed that:

‘This issue has been drawn to my attention by a constituent, Mr Tony Hudson, who I understand has previously raised the matter with BHP Steel Ltd.  Mr Hudson has advised me that BHP has produced four reports on this matter (7 November 2000, 12 March 2001, 4 April 2001 and 29 June 2001) and the first three and most informative have subsequently been withdrawn by BHP Steel Ltd.  To ensure that I understand the full facts of the matter I would appreciate if you could provide me with all four reports.’

3                     The nature of Mr Hudson’s previous dealings with BHP Steel appears from the reply to Mr Entsch’s letter dated 12 September 2002 as follows:

‘There have been a number of issues raised in this long journey of Mr Hudson to establish his antenna design within the antenna service industry, and it is appropriate that some further clarification and review be undertaken.

Mr. Hudson first approached BHP Steel in October/November 2000 in relation to the claimed advantages of his product.  Our return comments were made in terms of technical reports and letters of correspondence to address issues such as in-service conditions, design issues and design recommendations.

The information presented in the technical reports was specific to the issues raised by Mr Hudson in relation to his product and was not meant for further publication.

We have also met with Hills Industries and received correspondence from TESA, the Television & Electronic Services Association, to seek their input and comments from the industry as a whole.  The consensus presented to ourselves was that Mr Hudson had an antenna design that could be worthy of progression but it should be progressed through the antenna and manufacturing channels that are already established.  Your proposal for BHP Steel to work with the Australian Building Code Board is noted but we feel Mr Hudson would be better served dealing with a respected association supporting his profession.

In all of the requests and correspondence with Mr Hudson we have aimed to provide maximum assistance and direction within the bounds of the issue(s) presented, product and design considerations as well as design recommendations.  We believe that such assistance is part of our bond to the wider community and importantly to do so within our responsibilities of a supplier to manufacturing market.

BHP Steel shares concerns regarding the impact of poor work practices associated with “following trades”, in this case the possible installation of poorly designed roof antennae, however our complaints records to date do not highlight this as an issue.

In review we continue to wish Mr. Hudson well in his endeavours to have his design adopted, but we believe that the problems raised by Mr Hudson do not relate to BHP STEEL.  We continue to maintain that resolution of the issues raised by Mr. Hudson should lie within the antenna manufacturing market sector and via the Television & Electronic Services Association.’

4                     On 13 November 2002 Mr Entsch responded as follows:

‘I refer to the attached letter of 12 September 2002 from Mr Peter Wilson, BHP Vice President Sales & Marketing, regarding the accelerated corrosive impact of roof-mounted television antennae installations on BHP Steel roofing products raised by Mr Tony Hudson.  I seek your further clarification of the facts of this matter.

In his response, Mr Wilson is dismissive of the accelerated corrosion issue on the grounds of Mr Hudson’s commercial interest in raising the matter.  Regardless of Mr Hudson’s motivation, the fact remains that the Tripod design of roof-mounted antennas corrodes BHP Steel roofing products and this has long-term implications for a large number of Australian homes.  This is the issue that we need to address.

While Mr Wilson was unable to provide copies of the four BHP reports into the matter, I am pleased to advise that Mr Hudson has kindly made them available.

Mr Wilson stated that these reports deal specifically with “in-service conditions, design issues and recommendations” raised by Mr Hudson “in relation to his product”.  This is not the case.  The first three reports acknowledge the merit of Mr Hudson’s design but focus on the corrosion issue and detail procedures to be followed for using a tripod base plate on BHP roofing products.  It appears that these procedures will not be followed because BHP has deemed their release not to be in the company’s interest.

This matter was recently the subject of a hearing at the Cairns Small Claims Court that found the tripod antenna installation product used by AUSTAR had damaged the claimant’s roof and AUSTAR was liable for the damages.  Clearly, a legal precedent has now been established recognising the impact of the Tripod antenna design on BHP’s roofing products. BHP cannot ignore this decision.

I am firmly of the opinion that your company, as a responsible corporate citizen, has a duty of care to alert past and future customers to this matter.

I look forward to receiving your further clarification on this important matter.’

5                     A more detailed explanation of the issues addressed in this correspondence appears in exhibit E15 to Mr Hudson’s affidavit filed on 18 March 2005, a memorandum to him from a scientist employed by BHP Steel.  It seems that a problem occurs where a tripod support for an antenna is mounted on a metal base plate and fitted to a roof.  Because the area under the base plate is not regularly washed by rainwater, dirt and other detritus accumulate there.  This may lead to deterioration in the roofing material. 

6                     Mr Entsch was probably in error when he suggested that Mr Wilson had asserted that the four reports mentioned in the correspondence dealt with ‘… in-service conditions, design issues and recommendations’.  He seems to have been referring to use of those words in the second paragraph of the letter of 12 September 2002 which is quoted above.  Similar words occur elsewhere in the letter.  In my view, Mr Wilson was identifying the subject matter of earlier dealings with Mr Hudson, not the contents of the reports.  Nonetheless, the reports were no doubt relevant to the issues raised in those dealings. 

7                     As appears from the transcript of a news broadcast which is exhibit F15 to Mr Hudson’s same affidavit, following his letter of 13 November 2002, Mr Entsch met with representatives of BHP Steel.  Mr Hudson wrote to Mr Entsch on 29 December 2003.  Although the letter is not in evidence, Mr Entsch’s reply dated 29 January 2004 gives a clear indication of its contents.  Mr Entsch wrote:

‘I am in receipt of your letter of 29 December 2003 regarding, amongst other things, your ongoing dispute with BHP over your concerns with the accelerated corrosive impact of roof-mounted antenna on BHP roofing products.

As you would be aware, I was seriously concerned about the issues you raised and consequently put a huge amount of work into the subject in an attempt to see if it was indeed a problem, and if so, what could be done to deal with it.

To this end I met with BHP representatives in Canberra last year where they presented sufficient evidence to satisfy my concerns.  They did acknowledge that roof damage can occur, but that it was a matter of individuals taking due precautions in installation and operation to remove this possibility.  In the end, BHP does not believe it is responsible for end-use application of its products and I agreed with their position.  I certainly found no evidence that BHP is attempting to conceal the facts or avoid its responsibilities.

I should take offence at the tone of your letter given the huge amount of time and effort myself and my staff put into investigating the issue and dealing on your behalf.  It appears to me that after all due consideration, the fact that I don’t totally agree with your position is the basis of your attack.  While I acknowledge your ongoing concerns, I am still not convinced there isn’t an additional motive regarding promotion of your own product, particularly since you do not appear to be willing to accept the facts in this case concerning BHP’s culpability.  However, given your apparent obsession I’m prepared to treat your insults and accusations with the disdain they deserve.

Unfortunately, there is nothing else I can do to help you with this issue.  I do, however, wish you the best in your continued attempts to advertise your product.’

            On 29 July 2004 Mr Hudson wrote to Mr Entsch as follows:

‘I thought I’d send further evidence of BHP’s Legal Counsel attempting to conceal the facts to assist your previous amnesia on the subject.  Amnesia would explain your forgetting that BHP lied to you on 12 September 2002.  My customers, your constituents would like know if your condition has improved.

With a Federal election looming it’s the appropriate time to expose BHP’s dishonourable conduct and your part in the affair.  I have given your political opponent copies of your letters and BHP’s.  Your attempt to cover up BHP’s deceit at the expense of your constituents is in black and white on your letterhead.  

You wrote to BHP’s CEO Mr Kirby Adams on 4 June 2002 requesting access to reports BHP had concealed.  BHP refused in writing to grant your request for access.  In your reply of 13 November 2002, you criticized BHP for deliberately deceiving you about the facts contained in the reports which BHP had refused you access to.

In your letter to me of 29 January 2004 you state “I certainly found no evidence that BHP is attempting to conceal the facts.”  If you have some plausible explanation for the contradictions in your correspondence, why have you failed to provide it?

Your constituents are entitled to an explanation for such serious contradictions.  It was sufficiently important for BHP to fly their Executive Vice President to Canberra to discuss the matter with you in person.  Would revealing the truth, be more politically embarrassing than refusing to answer your constituents’ questions?

Your refusal to answer, is an answer in itself.  I’ve seen you on the News recently.  You appear pale and worried.  Perhaps, this isn’t the only skeleton in your closet?  Whatever the case, this is one skeleton that is due for exhumation and post mortem.  Hopefully to be followed by guillotine at the ballot box!’

8                     Mr Hudson’s criticism of Mr Entsch appears to have arisen out of the letter from BHP Steel to Mr Entsch dated 12 September 2002, Mr Entsch’s response of 13 November 2002 and his letter to Mr Hudson dated 29 January 2004.  Mr Hudson asserts that Mr Entsch’s observation, in his letter of 13 November 2002, that Mr Wilson had made an inaccurate statement concerning the reports was inconsistent with his observation, in the letter of 29 January 2002, that he had found no evidence of concealment of information by BHP Steel.  As I have already observed, Mr Entsch’s interpretation of the letter of 12 September 2002 is, in my view, incorrect.  In any event, the correspondence suggests that BHP Steel subsequently satisfied his concerns, leading him to withdraw his support for Mr Hudson’s campaign.  Mr Hudson said in his oral submissions that Mr Entsch had been “warned off” by BHP Steel, and that this had led him to withdraw his support.  There is no evidence before me which would support that view.  It is fairly clear that Mr Hudson’s letter of 29 July 2004, which refers to ‘… a Federal election looming’, was an opportunistic attempt to take advantage of the uncertainty which parliamentarians must feel at election time, either to punish Mr Entsch or perhaps to encourage him to resume his support for the campaign.

The election

9                     On 21 August 2004, a writ was issued for House of Representatives elections in Queensland.  Those elections were held on 9 October 2004.  Mr Entsch was a candidate in Leichhardt.  The writ was returned on 11 November 2004, Mr Entsch having been elected.

10                  In the course of the election campaign, Mr Entsch and, presumably, other candidates erected election signs.  Mr Entsch’s signs showed a picture of him.  Mr Hudson also erected signs, some of them in close proximity to Mr Entsch’s signs.  Mr Hudson’s signs bore a cartoon-like drawing of Mr Entsch’s face, with the addition of horns, a long, forked tongue and a long nose.  One version bore the legend ‘Meet Stenchy at greedslayers.com’.  Another version bore the words ‘Stench’ and ‘greedslayers.com’.  The words ‘Stench’ and ‘Stenchy’ were apparently plays on Mr Entsch’s name.  The website was Mr Hudson’s.  He had there posted the correspondence concerning his disputes with BHP Steel and Mr Entsch.  Mr Hudson’s intention seems to have been to create the impression that Mr Entsch was dishonest or corrupt and to invite attention to his website.

The petition

11                  By petition filed in the High Court on 2 December 2004, Mr Hudson sought orders declaring that Mr Entsch was not duly elected and that the election in Leichhardt was void.  There has been no challenge to Mr Hudson’s status as petitioner nor as to formal execution of the petition.  By summons filed on 10 January 2005, the second respondent (the “Electoral Commission”) sought leave to appear in the proceedings and other relief, including remitter to this Court and dismissal of the petition.  The Electoral Commission was given leave to appear, and the matter was remitted.

12                  Mr Hudson’s petition originally contained numerous allegations which are not now before me.  Most, but not all, of those allegations concerned the alleged removal of his signs.  Many of the allegations were struck out at an earlier stage in these proceedings.  The following allegations remain:

‘9.        Win Television conducted a related interview with candidate Warren Entsch.

10.       Mr Entsch stated in the interview broadcast on 5 October 2004 in reference to my political signs that:

a          “It’s quite slanderous,”

b          “ People are offended by it,”

c          “and people ring me I say knock em down.”

d          “Because it is rubbish, absolute rubbish.”

11.       On 3 October 2004 I had begun to notice that some of my signs were being knocked down as opposed to being removed.’

13                  I should say, out of fairness to Mr Hudson, that these allegations are a little difficult to understand in isolation from the context in which they originally appeared.  He had alleged that between 28 September and 3 October 2004, his signs were removed from places where he had erected them.  On 4 October, he conducted “video surveillance” of a site from which signs had been removed.  He took his “video footage” to WIN Television.  As a result, Mr Entsch was interviewed on television on 5 October 2004 as alleged in par 10 of the petition. 

14                  It is important to note that Mr Hudson distinguishes between the “removal” of his signs prior to 3 October and the “knocking down” of his signs on and after that date.  The allegation in par 11 of the petition seems to invite an inference that the knocking down of signs on, and after, 3 October 2004 was attributable to Mr Entsch’s having told people to do so, or to the television interview, or to both.  There was no allegation in the petition that Mr Entsch had been in any way involved in the removal (as opposed to the knocking down) of any signs.  It was for this reason that I struck out the allegations concerning removal of the signs.  Perhaps I should have allowed those paragraphs to remain in the petition on the basis that they were relevant to the matters raised in pars 9-11, but were not themselves the basis for any finding of misconduct against Mr Entsch.  However the matter is of no significance for present purposes.  The allegation that signs were removed is implicit in par 11.  The hearing proceeded on the basis that signs had previously been removed, without any suggestion that Mr Entsch was implicated in such removal.

Court of disputed returns

15                  Pursuant to subs 354(2) of the Electoral Act this Court is, for the purposes of Mr Hudson’s petition, the Court of Disputed Returns and has all the relevant powers and functions conferred upon the High Court by that Act.  Pursuant to pars 360(1)(v) and (vii) the Court may declare that any person returned as elected was not duly elected or declare any election to be absolutely void.  Pursuant to subs 360(2) the Court may exercise its powers upon such grounds as it, in its discretion, thinks just and sufficient.  Subsection 360(3) makes it clear that the grant of power includes the power to declare that any person who was returned as elected was not duly elected or to declare an election absolutely void on the ground that illegal practices were committed in connection with the election.  The term ‘illegal practice’ is defined in subs 352(1) to mean ‘a contravention of this Act or the regulations’, presumably regulations made under the Electoral Act.  Subsection 360(3) was probably inserted to preclude any suggestion that the prescribed penalties for illegal practices were to be the only sanctions for such misconduct.

Bribery, undue influence and corruption

16                  Section 362 qualifies the grant of power contained in s 360, providing as follows: 

‘(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 or the Radio Communications Act 1992.’

17                  Section 352 defines terms used in s 362 as follows:

‘(1)      In this Part

bribery or corruption means a contravention of s 326. 

Illegal practice means the contravention of this Act or the regulations.

undue influence means a contravention of section 327 of this Act or section 28 of the Crimes Act 1914.

(2)       For the purposes of this Part, a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the contravention of a provision of this Act, the Crimes Act 1914 or the regulations under this Act shall be deemed to have contravened that provision.’

18                  As I have previously observed, the ‘regulations’ mentioned in the definition of the term ‘illegal practice’ are presumably those made under the Electoral Act. 

19                  Section 326 creates the offence of bribery.  In effect, a person who seeks a benefit in connection with:

۰               the candidacy of a person for election;

۰               support for, or opposition to, any candidate, group of candidates or party;

۰               any vote;

۰               the preferences set out in a vote; or

۰               the order of candidates’ names on a ballot paper for election to the Senate,

commits that offence.  Any person who offers a benefit in such circumstance also commits bribery.  Section 326 is not presently relevant, save in connection with the interpretation of other sections.  Section 327 is entitled ‘Interference with political liberty etc’, and provides:

‘(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-elections 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 the State or Territory.’

20                  Section 28 of the Crimes Act 1914 (Cth) (the “Crimes Act”) provides:

‘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.’

21                  As noted above, a contravention of s 327 of the Electoral Act or s 28 of the Crimes Act is the offence of undue influence.  The similarities between the two sections are obvious.  Mr Hudson has not alleged a breach of s 28.  However the section is relevant to the construction of s 327.  I will return to it at a later stage.

Avoidance of elections

22                  Section 362 qualifies the power to avoid elections conferred by s 360.  Subsection 362(1) provides that if the Court is satisfied that a successful candidate has committed, or attempted to commit bribery or undue influence (ie a breach of either s 326 or s 327), the election of that candidate is to be declared void.  Subsection 362(3) poses some difficulties.  It provides that, in certain identified circumstances, the Court is not to avoid an election on the ground of an illegal practice unless it is satisfied that:

۰               the result of the election was likely to have been affected (presumably by the illegal practice); and

۰               it is just that the election be avoided.

23                  The subsection is engaged where:

۰               the illegal practice was committed by any person other than the successful candidate and without his/her knowledge or authority; or

۰               the illegal practice is other than bribery or corruption or attempted bribery or corruption.

24                  For present purposes it is the second situation (prescribed in par 362(3)(b)) which poses difficulty.  The difficulty arises from the definition of the terms ‘bribery’, ‘corruption’ and ‘undue influence’ in subs 352(1).  The first two terms both mean ‘a contravention of s 326’.  The offence of ‘undue influence’, a contravention of s 327 of the Electoral Act or s 28 of the Crimes Act, is neither bribery nor corruption.  Whilst subs 362(1) mandates avoidance of the election in the event of bribery or undue influence, subs 362(3) appears to indicate that undue influence is not to lead to avoidance unless the other conditions prescribed in the subsection are met.  It would be very difficult to resolve this inconsistency were it not for s 386 of the Electoral Act.  Should the Court of Disputed Returns find that a person has committed, or attempted to commit, bribery or undue influence, s 386 disqualifies him or her from sitting as a member of either House of Parliament for two years.  This suggests that subs 362(1), rather than subs 362(3), is to govern that situation.  Presumably, par 362(3)(b) applies only where subs 362(1) has not been engaged.  Both Mr Hudson and the Electoral Commissioner so submit.  Counsel for Mr Entsch formally submits to the contrary.  I propose to adopt the approach urged by Mr Hudson and the Electoral Commission.  This view of the operation of s 362 appears to have been assumed by Gaudron J in Webster v Deaham (1993) 116 ALR 223 at 225.  The need for consistency suggests that the same approach should be taken to the resolution of any conflict between the operation of subs 362(1), when read with subs 352(2), and par 362(3)(a).  However it is not necessary to decide that question.

Mr Hudson’s case

25                  Mr Hudson’s case depends upon his assertion that Mr Entsch contravened subs 327(1).  In order to establish such contravention, Mr Hudson must prove that Mr Entsch:

(i)         hindered or interfered with,

(ii)        the free exercise or performance by Mr Hudson,

(iii)       of any political right or duty,

(iv)       which was relevant to the election held on 9 October 2004.

26                  Mr Hudson asserts that those unknown persons who knocked down his signs hindered or interfered with his political right to make statements concerning a candidate for election and therefore contravened s 327.  He further submits that Mr Entsch’s conduct in urging the knocking down of the signs made him a party to such contravention or contraventions by virtue of subs 352(2).  I should stress that the only incident of undue influence alleged by Mr Hudson is Mr Entsch’s conduct.  He has not relied upon the conduct of the unknown person or persons who knocked down the signs.

Subsection 352(2) – Parties to Offences

27                  In my view, Mr Hudson’s reliance on subs 352(2) is misconceived.  I will deal with the application of that provision upon the assumption that to remove signs erected to express views about a candidate for election hinders or interferes with a political right which is relevant to that election, and that such conduct is therefore contrary to s 327.  However, as will be seen, I consider that assumption to be incorrect.

28                  Mr Hudson did not seek to identify the person or persons who knocked down his signs or to establish that any such person did so with knowledge of Mr Entsch’s statements.  Clearly, when subs 352(2) speaks of ‘the contravention’, it assumes that a person has physically committed a relevant offence other than as a result of the engagement of that subsection.  In the event that another person has aided, abetted, counselled or procured, or is concerned in or party to, that contravention, he or she is deemed to have also contravened the relevant provision by virtue of subs 352(2).  Whilst Mr Hudson has demonstrated that signs were knocked down, he has not demonstrated any connection between that conduct and Mr Entsch’s statements.  It is quite possible that some or all of the signs were knocked down accidentally, by the wind, by dogs, or by vandals who lacked any political motive. 

29                  In Giorgianni v The Queen (1984-1985) 156 CLR 473, the High Court was concerned with a provision of the Crimes Act 1900 (NSW) which provided that, ‘Any person who aids, abets, counsels or procures, the commission of any misdemeanour … may be indicted, convicted and punished as a principal offender.’  Concerning that section, Gibbs CJ said at 481:

‘Russell on Crime, 12^th ed. (1964), p. 151, states that “the bare minimum” which is necessary to constitute a person an accessory before the fact is that his conduct should indicate “(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed”.’

30                  Similarly, at 505, Wilson, Deane and Dawson JJ observed:

‘Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence.’

31                  In other words, a person cannot be said to aid, abet, counsel or procure the commission of an offence by encouraging its commission unless his or her relevant conduct has, in some way, come to the knowledge of the actual offender.  It is, perhaps, arguable that a person may be concerned in, or party to, the offence of another without such a direct connection, but the High Court, in Yorke v Lucas (1985) 158 CLR 661, seems to have decided otherwise.  That decision concerned a provision similar to subs 352(2), referring not only to ‘a person who aids, abets, counsels or procures’ but also to the notion of being ‘knowingly concerned’ in the offence.  The decision in Giorgianni was applied.  The observations made by Mason ACJ, Wilson, Deane and Dawson JJ at 669 suggest that inclusion of the concept of “knowing involvement” did not materially extend the operation of the section beyond that implied by the notions of “aiding, abetting, counselling or procuring”.  It is sufficient to say that in order to engage subs 352(2), there must be some connection between the actions of the principal offender and the impugned conduct of the party allegedly inculpated by that subsection.  If that were not so, Mr Entsch would have been a party to the knocking down of any of Mr Hudson’s signs by any person, regardless of why he or she did so.

Incitement

32                  It may be relevant to note the difference between being a party to an offence which has actually been committed (as contemplated by subs 352(2)), and inciting the commission of an offence.  The offence of incitement differs from that contemplated by subs 352(2) in that it is not an element of the former offence that any offence has been committed as a result of the incitement.  See Archbold, Criminal Pleading, Evidence and Practice, 2004 edn, at par 34-70;  Walsh v Sainsbury (1925) 36 CLR 464 per Knox CJ and Starke J at 472 and per Isaacs J at 476;  Dimozantos v The Queen (1991) 56 ACrimR 345 at 349.  Incitement to contravene the Electoral Act or the regulations is not an offence under that Act or the regulations.  However s 11.4 of the Criminal Code Act 1995 (Cth) (the “Criminal Code”) provides that ‘a person who urges the commission of an offence is guilty of the offence of incitement.’   The term ‘offence’ is defined in the Dictionary attached to the Act to mean ‘an offence against a law of the Commonwealth’.  Thus it is an offence to incite a breach of s 327 of the Electoral Act.  However that offence is not a contravention of any provision of the Electoral Act or the regulations and therefore is not an illegal practice as defined in subs 352(1) of the Electoral Act.  Clearly enough it is also not bribery, corruption or undue influence. 

33                  Subject to the provisions of subs 360(3) and s 362, the power conferred by s 360 to avoid an election seems to be at large.  It would therefore be within power for the Court to avoid an election upon the ground that the successful candidate had committed an offence other than a contravention of the ElectoralAct or the regulations, including a breach of s 11.4 of the Criminal Code.  As much is implicit in subs 362(4) which provides that the Court is not to invalidate an election upon the basis that someone has contravened the provisions of the Broadcasting Services Act 1992 (Cth) or the Radio Communications Act 1992 (Cth).  However, as I have said, Mr Hudson relies solely upon an alleged breach by Mr Entsch of s 327 by virtue of the operation of subs 352(2).  In any event, in my view, Mr Entsch’s conduct did not amount to incitement to breach s 327 for reasons to which I now turn.

Subsection 327(1) – Undue Influence

34                  To this point I have assumed that the knocking down of Mr Hudson’s signs was capable of being characterized as a breach of s 327 and therefore as the offence of undue influence.  However that expression does not seem appropriate to describe the conduct in question.  The origins of that offence appear from the following extract from Rogers on Elections, 20^th edn, vol 2 at 325:

‘Corruptly influencing a voter, whether by the more direct and grosser form of treating … or the more indirect and subtler form of wagers … was always an offence as a species of bribery; but unduly influencing a voter was not, before 17 and 18 Vict.c.102, an offence in the strict sense of the word, although its prevalence is mentioned in many resolutions of the House of Commons and many statutes have been passed to prohibit the evil in particular instances; and although a vote unduly influenced is void at common law, and will be struck off on a scrutiny … .’

35                  At 328 Rogers observes:

‘Undue influence was defined by Willes J. in Lichfield (1869) 1 O’M&H 25, to be the “using any violence or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of a voter, so as either to compel or frighten him into voting or abstaining from voting otherwise than he freely wills”.’

36                  The notion of undue influence had been imported into the colonies prior to Federation.  In “The Electoral Code 1896 (SA)”, s 157 provided:

‘Whosoever threatens, offers, or suggests any –

I           Violence, injury, punishment, damage, loss, or disadvantage for or on  account of, or to induce any candidature, or withdrawal of candidature, or any vote or any omission to vote, or any support or opposition to any candidate, or any promise of any such vote, omission, support, or opposition:

II         Or uses, causes, inflicts, or procures any violence, punishment, damage, loss, or disadvantage for or on account of any such candidature, withdrawal, vote, omission, support or opposition:

shall be guilty of undue influence.’

37                  Section 158 provided:

“Without limiting the effect of the general words in the preceding section, “undue influence”, includes every interference or attempted interference with the free exercise of the franchise of any voter.’

38                  In Western Australia ss 127 and 128 of the “Electoral Act 1899” were to similar effect.  The “Commonwealth Electoral Act 1902” contained similar provisions as ss 177 and 178.  When the current Act was enacted in 1918, ss 158 and 159 were in the same form.  The sections were amended slightly in 1962 to make specific reference to Aboriginal voters.  They were repealed by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) (s 114), and subs 327(1) (then s 159) was included under the heading ‘Interference with political liberty’.  Section 352 (then s 182) was also adopted at that time.  At the same time, ss 156 and 157 (dealing with bribery) were repealed and replaced by s 158 (now s 326).  Although the wording of the latter provision differed from its predecessors, the effect was substantially the same. 

39                  The offence of undue influence was well-understood prior to 1983.  It involved the use of violence or detriment, or the threat of violence or detriment to influence the way in which a person voted, any candidature, or support for, or opposition to, a candidate.  It is at least arguable that subs 327(1) proscribes a wider range of conduct.  The potential for such extended effect arises from use of the expression ‘political right or duty’ which term is very difficult to define.  As I have pointed out, subs 327(1) replicates s 28 of the Crimes Act.  That section, in turn, appears to have been borrowed from the Queensland Criminal Code, s 78 of which provides:

‘(1)      Any person who by violence, or by threats or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person, is guilty of a misdemeanor, and is liable to imprisonment for 2 years.

(2)       If the offender is a public officer, and commits the offence in abuse of the offender’s authority as such officer, the offender is liable to imprisonment for 3 years.’

40                  Curiously, that Code also contains, as s 102, the offence of ‘undue influence’, which is defined as follows:

‘Any person who –

(a)       uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind, to an elector in order to induce the elector to vote or refrain from voting at an election, or on account of the elector having voted or refrained from voting at an election; or

(b)       by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at election;

is guilty of a misdemeanor …’

41                  Counsel informed me that extrinsic evidence indicates that Sir Samuel Griffith borrowed s 78 from the Zanardelli Code of Italy.  However it has not been suggested that any relevant assistance is to be derived from that source.

42                  Prior to the 1983 repeal of s 158 of the Electoral Act and the enactment of s 159, (now subs 327(1)), the “political rights” protected from undue influence were:

۰               the right to stand as a candidate;

۰               the right to vote freely for a particular candidate or to refrain from voting for such candidate; and

۰               the right to support or oppose any candidate.

43                  Given the well-established meaning of the expression ‘undue influence’, it is unlikely that Parliament intended that s 159 (now subs 327(1)) proscribe a narrower range of conduct than did its predecessors.  The first report of the Joint Select Committee on Electoral Reform, published in September 1983, was the genesis of the 1983 amendments.  At par 13.4 the Committee observed that the proposed amendments were designed ‘… to enable the definitions and extent of ‘bribery’ and ‘undue influence’ to be up-dated to deal with serious offences, with due regard to preserving the integrity of election day, and to remove reference to Aboriginal Australians … .’  If anything, it seems that the intention was to broaden the range of proscribed conduct.

44                  Mr Hudson on the one hand, and Counsel for the Electoral Commission and Mr Entsch on the other, urge widely divergent positions.  In effect, Mr Hudson asserts that the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 establishes that he has the right to make public statements about political matters and that the expression ‘political right’ in subs 327(1) includes such right.  Of course, the conduct prescribed by subs 327(1) is limited to conduct affecting the exercise or performance of a political right or duty which is ‘relevant to an election under this Act’.  To that extent, and despite Mr Hudson’s assertions to the contrary, his argument must be so limited.

45                  The Electoral Commission and Mr Entsch submit that a much narrower approach should be adopted.  In effect they submit that the reference to a ‘political right or duty’ in subs 327(1) includes:

۰               rights or duties conferred or imposed by the Electoral Act, being the right to enrol to vote, the right and duty to vote, and the right to stand for election;

۰               ‘the liberty that exists at common law to do what is not prohibited to the extent that it does not infringe a right of, or duty to, another … .’; and

۰               rights conferred by the Constitution.

46                  The Electoral Commission also submits that it is ‘… possible to speak for the purposes of s 327(1) of the right to support or oppose a candidate for election … however, it is not possible to speak other than in qualified terms of a right to engage in conduct in support of, or opposition to, a candidate.’  I will return to this aspect.  It is also submitted, correctly, that “rights” of the kind discussed in Lange do not confer personal rights on individual citizens.  They rather involve curtailment of the powers of the legislature and the executive, in this case, to limit the right to speak publicly about political matters.

47                  It is possible that Parliament intended that subs 327(1) have wider operation than had earlier provisions concerning undue influence.  However there are good reasons for limiting the operation of the section to the aspects of the electoral process identified in s 326.  Section 327 prescribes quite severe penalties for any contravention, as do ss 362 and 386.  One would, therefore, expect precision in identification of the proscribed conduct.  Only s 326 offers such precision.  The other considerations identified by the High Court in Evans v Crichton-Browne (1980-1981) 147 CLR 169 at 206-7 also militate against a wide construction of the term ‘political right or duty’.  It is also unlikely that Parliament had in mind, in 1983, the issues discussed in Lange and earlier cases.  Setting aside fictions concerning the unchanging nature of the common law, the curtailment of legislative and executive powers discussed in those cases was certainly not, at that time, at the forefront of learning or debate concerning Australia’s parliamentary system.  However it may be that some of the “rights” in question had traditionally been protected to some extent by the laws against bribery and undue influence.  Although the right to vote and the right to be a candidate were, and are, expressly prescribed by statute (and to some extent, by the Constitution), there has not been, nor is there presently, any express conferment of the “right” to support or oppose a candidate.  Nonetheless the pre-1983 legislation and, in the case of bribery, the post-1983 legislation, have protected that aspect of the electoral system. 

48                  The Electoral Commission submits that “rights” of the kind discussed in Lange are not protected because they are not rights vested in individual citizens.  The “right” to support or oppose a candidate seems to be of that kind.  It may be incorrect to describe the curtailment of a legislative or executive power as a “right” vested in an individual citizen, but it is not clear to me that the expression ‘political right’ in subs 327(1) necessarily describes only a legally enforceable right.  There is no reason why Parliament should not legislate to protect the benefit to citizens flowing from the “curtailments” discussed in Lange so that other citizens are also obliged to respect such benefit.  Thus it might legislate to protect the “right” of a citizen to speak freely concerning political matters, provided that it does not thereby infringe the “rights” of others to the same freedom.

49                  In my view, a political right, for the purposes of subs 327(1) is the right to vote (including the allocation of preferences), the right to stand for election and the right to support or oppose a candidate, group of candidates or party.  It is not necessary to determine whether the matter referred to in pars 326(1)(e) and 326(2)(e) involves political rights for the purposes of subs 327(1).

Support of, or opposition to, a candidate

50                  The Electoral Commission submits that any protection of the right to support or oppose a candidate, group or party is limited to protection of the right to hold opinions and does not extend to any manifestation of those opinions.  It submits that the offence of undue influence has always involved the notion of conduct designed to overbear the will and that such notion is implicit in subs 327(1).  It is said to follow that subs 327(1) prohibits only conduct which is calculated to overbear the will of another person.  In particular, the Electoral Commission submits that the subsection does not prohibit hindrance of, or interference with, any physical manifestation of support for, or opposition to, a candidate, group or party.  Rather, it prohibits the use of force or detriment to persuade a person to change his or her opinion as to such support or opposition. 

51                  It is true that the cases discussed in Rogers suggest that the offence of undue influence has traditionally involved conduct directed towards influencing the way in which a person would vote.  However the case is otherwise with bribery.  In Britt v Robinson (1870) LR 5 CP 503, the Court of Common Pleas considered a petition concerning an election for representation of the City of Bristol in Parliament.  Prior to the election, candidates proposing to stand in the liberal interest considered it probable that one of them would be returned.  They agreed that a test ballot be conducted with the intention that he who won would be the candidate.  Robinson was the successful candidate at the test ballot and eventually stood in the liberal interest at the election.  He was returned.  Prior to the test ballot, Robinson’s agents had given drink and money to voters in order to induce them to vote for him at that ballot.  The relevant legislation provided that:

‘Every person who shall directly or indirectly, by himself or by any other person on his behalf, make any such gift, loan, offer, promise, procurement, or agreement as aforesaid to or for any person, in order to induce such person to procure or endeavour to procure the return of any person to serve in parliament, or the vote of any voter at any election ….’

was guilty of bribery.

52                  The Court held that the conduct by Robinson’s agents contravened the section.  Montague Smith J observed at 515:

‘What was the consequence of their voting for him at the test ballot?  The consequence of it was, under the arrangement which had been made for the purpose of taking that test-ballot, to assist in putting him in a position, by the result of the test-ballot, in which his election would be in all reasonable expectation certain.  It seems to me, therefore, that the votes which were given at the test-ballot were votes given to procure his election, or to endeavour to procure his election; and, if those votes were given to endeavour to procure his election, then the illegality is clear; for, it is confessed that they were purchased votes, and corruptly purchased votes.

That being so, it seems to me that the case falls directly within this section, which says that “every person who shall, directly or indirectly, … induce such person to procure or endeavour to procure the return of any person to serve in parliament, … .”  It seems to me that this was an endeavour to procure the return to parliament by means of purchased votes which should place Mr Robinson at the head of the pole at the test ballot.  It certainly does not seem to me too remote from the return, because the direct and immediate result of being placed at the head of the test ballot was, if not to secure his election, at all events very greatly to further it.  Therefore it was, as it seems to me, in the words of the Act, an endeavour to procure his return.’

53                  Although the fact that the case was decided in the context of a test ballot tends to make it look like a case of vote-buying, it was not.  It was a case of bribing people to act in a way which would improve a candidate’s chances of success at the election.  To similar effect is the following passage from Rogers at 305:

‘Thus the treating of non-electors in order that they might influence voters …, or of women in order that they might influence their fathers, brothers, or sweethearts, would unquestionably avoid the election … .’

54                  It follows that a bribe paid to a third party to speak in favour of, or against a candidate would also have fallen within the section.

55                  It seems that the statutory definition of ‘undue influence’ at that time did not include a prohibition on the use of violence, detriment or threats thereof to influence another to procure the return of a candidate.  However the references to support of, or opposition to a candidate in the sections proscribing bribery and undue influence in colonial and subsequent federal legislation in Australia prior to 1983 were wide enough to include conduct of the kind addressed in Britt and referred to by Rogers.

56                  In my view, the approach urged by the Electoral Commission is unduly narrow.  If applied to s 326, it would deprive pars 326(1)(c) and 326(2)(c) of virtually any effect.  There is very little point in trying to change a person’s opinion by the use of force or detriment.  Opinions, of themselves, are of little effect.  It is the manifestation of such opinions which may affect others.  In protecting a person’s right to stand for office or to vote freely, s 326 protects rights to act.  There is no reason to doubt that in protecting the right to support or oppose a candidate, the subsection also protects the right to act.  If, as I consider, subs 327(1) seeks to protect, at least, the same aspects of the electoral process as does s 326, it follows that the sub-section proscribes the use of violence, detriment or threats thereof, intended to affect a person’s right to manifest his or her views concerning a candidate, group or party.

57                  However there is a difference between protecting a citizen’s right to act in support of, or opposition to, a candidate and protecting or preserving the results of such action.  Mr Hudson exercised his right to oppose Mr Entsch’s candidature by erecting signs.  His right was not hindered or interfered with by their being knocked down.  He remained free to erect more signs or to express his opposition in other ways.  Further, having exercised one’s right to support or oppose a candidate, one must accept that any lawful response to it may also be valid support for, or opposition to, the candidate in question.  To knock down an electoral sign may be as much an expression of such support or opposition as is its erection, provided that both actions are performed lawfully.  The position may be otherwise if a sign is stolen or damaged.  However it is not presently necessary to consider those possibilities, for there is no suggestion that Mr Entsch was a party to such conduct.

Section 350 – Defamation of a candidate

58                  Numerous other submissions are made by counsel on behalf of Mr Entsch and the Electoral Commission.  I need only refer briefly to one of them.  Counsel for Mr Entsch submits that Mr Hudson’s conduct was not protected by subs 327(1) because it was inconsistent with s 350 of the Electoral Act.  Pursuant to subs 350(1) it is an offence to publish any false and defamatory statement in relation to the personal character or conduct of a candidate.  It is submitted that conduct contrary to this section cannot be protected by s 327(1).  Pursuant to subs 350(1A), subs 350(1) does not apply if the person who published the defamation proves that he or she had a reasonable ground for believing, and did believe, the relevant statement to be true.  Mr Entsch’s argument assumes that the false and defamatory nature of Mr Hudson’s publications has been proven and that Mr Hudson has not satisfied subs 350(1A).  Whilst the publications may have been defamatory, it has not been demonstrated that they were either true or false.  The question has not really been addressed.  Falsity must be proven before subs 350(1A) can be engaged.  In any event, it may be arguable that Mr Hudson’s publications were of matters of opinion.  Statements as to whether a person has been truthful or otherwise in a particular situation may often be matters of judgment.  In the circumstances it is not necessary that I resolve this aspect of the matter.

Conclusion

59                  Mr Entsch did not contravene subs 327(1), either directly or pursuant to subs 352(2).  He also did not incite a contravention of s 327.  Mr Hudson’s case depends upon his allegation of a contravention of subs 327(1).  It must fail.  For these reasons, at the end of the hearing, I dismissed the petition.  I will hear submissions as to costs.

Associate:

Dated:              26 April 2005