FEDERAL COURT OF AUSTRALIA

Horn v Australian Electoral Commission [2007] FCA 1827

PROCEDURE – application to dismiss proceeding – obligation on Australian Electoral Commission to screen voters from observation when marking ballot-papers – whether application relating to imminent likely repeated refusal of voter to vote gives rise to a ‘matter’ –whether applicant has sufficient material interest

ELECTORAL LAW – obligation to screen voters from observation while they are marking the ballot paper – whether obligation requires provision of enclosed booths

CONSTITUTIONAL LAW – whether a secret ballot is entrenched in the Constitution – whether a secret ballot requires voters to be screened from observation while marking ballot papers – whether secrecy of how the ballot paper is marked suffices

DECLARATORY RELIEF – alternative discretionary factors - election imminent – consequence to applicant of alleged breach compared with potential widespread cost of disruption to Federal election

Held: The application be dismissed. The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.

Acts Interpretation Act 1901 (Cth) s 15AA

Commonwealth Electoral Act 1918 (Cth) ss 206, 233, 233(1), 233(1)(a), 233(1)(b), 245, 245(1), 245(8), 338, 348

Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2)

Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c), 78B, 78B(1)

Commonwealth Constitution ss 7, 24, 75, 76, 77

Federal Court Rules O 20 r 5

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Coco v R (1994) 179 CLR 427

Croome v Tasmania (1997) 191 CLR 119

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284

Dey v Victorian Railway Commissioners (1949) 78 CLR 62

Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471

General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125

Horn v Australian Electoral Commission [2006] FCA 1778

Re Judiciary and Navigation Acts (1921) 29 CLR 257

McGinty v Western Australia(1996) 186 CLR 140

Mills v Meeking (1990) 169 CLR 214

Mulholland v Australian Electoral Commission (2004) 220 CLR 181

Nation Wide News Pty Ltd v Wills (1992) 177 CLR 1

Newcastle and Hunter River Steamship Co. Ltd. v Attorney-General for the Commonwealth (1921) 29 CLR 357

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Roach v Electoral Commissioner (2007) 239 ALR 1

Society of Engineers v Adelaide Steam Ship Co Ltd (the Engineers case) (1920) 28 CLR 129

Swain v Hillman [2001] 1 All ER 91

The State of South Australia v The State of Victoria (1911) 12 CLR 667

DIETER HANS GUSTAV HORN v AUSTRALIAN ELECTORAL COMMISSION

WAD 208 OF 2007

MCKERRACHER J

23 NOVEMBER 2007

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN

Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.

3. Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN

Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE:	MCKERRACHER J
DATE:	23 NOVEMBER 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant, Mr Horn, has been concerned for some time that the construction and lay-out of polling booths used in federal elections do not adequately screen him from observation by others while he is in the process of marking his ballot-paper. Essentially Mr Horn contends that the voting compartment should have a door, screen or curtain on the front of it to screen the voter. He contends that the respondent Commission has failed to comply with the provisions of the Commonwealth Electoral Act 1918 (Cth) in that regard. These proceedings have been listed urgently as the Federal Election is scheduled to be held tomorrow.

2 Section 206 of the Electoral Act relevantly reads:

Polling booths shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot-papers ...

3 It is helpful and necessary to read s 206 with s 233 which relevantly provides:

(1) Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot-paper;

(b) fold the ballot-paper so as to conceal his or her vote and:

(i) … deposit it in the ballot-box …;

(ii) …

4 In 2006 Mr Horn instituted proceedings in this Court seeking relief against the Commission in respect of this alleged non-compliance with the Electoral Act. The proceedings were heard by Justice Nicholson who dismissed them on 19 December 2006 (Horn v Australian Electoral Commission [2006] FCA 1778). In the initial proceedings two issues were raised. The first was whether there were reasonable prospects of success in arguing that non-compliance had occurred. The second issue was whether or not there was a justiciable controversy. The question was whether Mr Horn at that particular time held a sufficient material interest in the subject matter of the action such as to warrant the grant of the relief claimed.

5 His Honour held that Mr Horn did not have the requisite interest because his interest in the subject matter of the action was contingent on the occurrence of future events. Specifically, in December last year Mr Horn did not have a sufficient material interest that would warrant the relief he was claiming even if he were otherwise entitled to it. As held by his Honour at [25]-[26]:

[25] … While he may presently have the view that he will not vote in a booth the same as or similar to that present at the 2004 federal elections in the Manjimup Town Hall, that would not warrant the grant of the relief claimed until at least the issue of the writs for the next federal election and more probably not until he determines his view on facing the booths provided at the polling place which he attends on the occasion of that election. The structure, layout and appearance of the election booths at the next election cannot be prejudged; until a federal election day there is nothing that can found a basis for a claim that the respondent has failed to comply with the Electoral Act.

[26] Expressed in other ways, the applicant in the claim in the draft application is not asserting any immediate right or duty. If s 206 arguably gives rise to a right or duty, it could only do so when Pt XVI has application to a polling; that is, after the issue of writs for an election.

6 These proceedings however are to be determined on the eve of the Federal Election, well after the issue of writs. Presumably the proceedings have been commenced in such close proximity to the election date in light of the reasons expressed by his Honour in the initial proceedings. Nevertheless, the Commission still contends that Mr Horn does not yet have standing to seek relief in these proceedings as there is no justiciable controversy until, at the earliest, he has declined to vote without good cause at the election. I will come to that argument shortly.

RELIEF SOUGHT AND PROCEDURE

7 Mr Horn has sought certain orders for production of documents, information and objects from the Commission. In particular he has sought an example of each kind of electoral polling booth containing voting compartments that it intends to provide at the Manjimup Town Hall. This is the relevant polling place for Mr Horn for the Federal Election for the Senate and House of Representatives to be held tomorrow. The Commission agreed to comply with that request and has now produced items sought by Mr Horn to his apparent satisfaction. The information supplied has enabled him to advance his argument on the basis of the actual situation which will prevail at the Election tomorrow.

8 In the substantive relief, Mr Horn seeks a declaration that the Commission, in using polling booths of the kind described to the Court has failed to comply with ss 206 and 233 of the Electoral Act. It is asserted they fail to comprise separate compartments constructed and arranged in such a manner as to screen voters from observation while marking their ballot-papers so as to allow a voter to mark his or her vote on the ballot-paper in private. Mr Horn also seeks a declaration that he may decline to vote under s 245(1) of the Electoral Act without incurring a threat of penalty for breach of s 245(8) of the Electoral Act. He further seeks an order in the nature of mandamus against the officers of the Commonwealth who comprise the Commission and who are to administer the polling at the polling place. Against those persons orders are sought requiring that they provide polling booths that comply with the relevant provisions.

9 Following the filing and service of the application by Mr Horn, the Commission also filed a motion to dismiss the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules on the grounds that Mr Horn has no reasonable prospect of successfully prosecuting the proceedings and that they are frivolous, vexatious or an abuse of process of the Court.

10 The Commission has proceeded with the motion to dismiss the proceedings. At the same time in light of the urgency of the matter, given the imminence of the Federal Election, I allowed Mr Horn’s opposed application to determine the substantive final hearing of the application as a matter of urgency. I agreed to this course as the evidence was of relatively narrow compass and as Mr Horn was and is genuinely concerned as to his rights and obligations in the immediate future at this election. If I were to conclude that the dismissal motion should not be allowed, Mr Horn would still have been left with uncertainty as to his rights and obligations. Quite properly, that motion did not, in these proceedings, raise the statutory construction point. By hearing and concluding the matter, both he and the Commission will know where they stand.

NOTICES UNDER s 78b OF THE JUDICIARY ACT 1903 (CTH)

11 Each of the parties has issued notices under s 78B of the Judiciary Act. Mr Horn’s notice was directed to the argument that a construction and application of ss 206 and 233(1)(a) of the Electoral Act must be compatible with the Commonwealth Constitution. In particular, it must be compatible with the terms ‘directly chosen by the people’ in ss 7 and 24 of the Constitution. The Commission’s notice goes to the question of whether Mr Horn has standing in the sense of whether there is a justiciable controversy for the purposes of Ch III of the Constitution. I am satisfied in the unusual circumstances that there has been sufficient time for the purposes of s 78B(1) of the Judiciary Act for each notice. I am particularly mindful that each of the Attorneys has responded to each notice indicating that there is no wish to intervene.

The issues

12 The primary issues falling for determination at this hearing have been first, whether Mr Horn has standing to pursue the proceedings and second, whether Mr Horn has discharged the onus of demonstrating that the Commission has failed or will fail to comply with the requirements of ss 206 and 233 of the Electoral Act.

History subsequent to the 2006 decision (Horn [2006] FCA 1778)

13 It is common ground that Mr Horn has persisted with his requests of the Commission for information as to whether the Commission intended to supply polling booths of the same kind that were supplied and to which he took objection in the 2006 proceedings. On 7 September 2007 Mr Horn wrote to the Commission seeking to inspect examples of the kind of polling booths that it would provide at nominated polling places within the division of Forrest as well as plans of the relevant layout of those polling places. On 18 September 2007 the Commission’s Chief Legal Officer declined Mr Horn’s request regarding information about the details of the polling booths to be provided at the 2007 Federal Election and refused to engage in further correspondence on the matter. Accordingly he has issued these proceedings.

Motion to dismiss

14 To the extent that the Commission relies upon s 31A in its motion, it is required to establish that there is ‘no reasonable prospect of success’ on the jurisdiction argument advanced by Mr Horn. As observed by Heerey Jin Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471, s 31A of the Federal Court Act 1976 (Cth) was introduced to establish a lower standard for strike outs (either of claims or defences) than that previously laid down by the High Court’s decisions in Dey v Victorian Railway Commissioners (1949) 78 CLR 62and General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. Nevertheless, while the test is lower, as Barrett J in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 held, for the purposes of the comparable provision in New South Wales (‘without reasonable prospects of success’) meant ‘so lacking in merit or substance as to be not fairly arguable’. In Swain v Hillman [2001] 1 All ER 91, Court of Appeal per Lord Woolf MR said at 92:

The words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospect of success or … they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.

JURISDICTIONAL ARGUMENT

15 As in the initial proceedings as amended, Mr Horn has sought to invoke the jurisdiction of this Court under s 39B of the Judiciary Act. The Commission contends in its dismissal motion that there is no present obligation to vote (and, as yet, no refusal without good cause to vote). It follows, it is said, that no ‘matter’ for the purposes of s 76 of the Constitution has arisen and the Court therefore has no jurisdiction.

16 The Court has jurisdiction to resolve the whole of a dispute in circumstances where a Commonwealth statute is involved in the dispute (s 39B(1A)(c) of the Judiciary Act). This general conferral of non-criminal federal jurisdiction suffices to support jurisdiction so long as there is actually a ‘matter’ in dispute. (Section 39B(1A)(c) is authorised by s 77 of the Constitution when read together with ss 75 and 76).

17 What is in dispute in this challenge by the Commission is whether there is a ‘matter’ where that expression is used in the sections of the Constitution to which I have referred. The Commission is quite correct in saying that the Court cannot merely give an advisory opinion. The Court is not empowered to give merely advisory opinions because its jurisdiction emanates from Ch III of the Constitution, specifically ss 75 and 76 which empowers the Court to resolve ‘matters’.

18 It was established in Re Judiciary and Navigation Acts (1921) 29 CLR 257 (the Navigation Act case) at 264-266, that there can be no ‘matter’ unless there is ‘… some immediate right, duty or liability to be established by the determination of the Court’. But as observed by Griffith CJ in The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 675, ‘the word “matter” was in 1900 in common use as the widest term to connote controversies which might come before a court of justice’.

19 There is no dispute about the basic principle. The issue is whether the declaratory relief now sought by Mr Horn is in the nature of an ‘advisory opinion’.

20 What is instructive, in my view, is that a very short time after the Navigation Act case, the Court did pronounce on the validity of the amendments to the Navigation Act. In the Newcastle and Hunter River Steamship Co. Ltd. v Attorney-General for the Commonwealth (1921) 29 CLR 357, the plaintiff ship owners and the State of Western Australia, sought a declaration from the Court as to the invalidity of those amendments. They asserted that their specific rights (the right to carry on shipping operations without incurring the expense required to comply with the amendments) were under threat as the Commonwealth proposed to take action in respect of their failure to incur the expense. The action at that point had not been taken but was ‘imminent’.

21 The argument that there was not yet any ‘matter’ was not raised in the sequel. The Court proceeded to deal with the argument on its merits. There could be little doubt that it was mindful of the recent jurisdictional debate, but appeared to accept that a threat to take action was sufficient an interest.

22 As held by Brennan CJ, Dawson and Toohey JJ in Croome v Tasmania (1997) 191 CLR 119 at 125 it is a misconception of the principle in the Navigation Act case to suggest that, in proceedings for a declaration of invalidity of an impugned law, no law is administered unless the Executive Government has acted to enforce the impugned law.

23 In this regard I particularly have in mind the imminence of the Federal Election and the inference I draw from the evidence discussed below that in the absence of a ruling from the Court, it is presently more probable than not that Mr Horn will not vote tomorrow. He will expose himself to a penalty. The facts as to the details of the booths, the compartments, the general lay-out of the polling place, the directions given to polling officers and many other matters are now clearly known. Mr Horn asks the Court to rule that on that evidence there will be non-compliance with ss 206 and 233. He seeks that ruling so that by not voting tomorrow he will not be exposed to a penalty.

24 I consider it is at least arguable that there is now an impending personal liability (in the sense discussed by the High Court in Croome 191 CLR at 126-127 per Brennan CJ, Dawson and Toohey JJ and by Gaudron, McHugh and Gummow JJ at 136) so as to constitute a ‘matter’.

25 The next ground in the Commission’s motion for dismissal of the proceedings is that the application is frivolous and vexatious and an abuse of the process of the Court because:

(a) it has no prospects of success for the standing reason discussed above;

(b) it threatens a significant and unjustified commitment of public money in both the Court resources and for the Commission to respond at a time when its resources are fully committed to meeting the public expectation that the Commission will conduct a successful federal election tomorrow;

(c) it threatens not only an important national public interest in the successful completion of polling Australia wide for the new Commonwealth Parliament and representative government but the significant sum of public money committed and expended in the conduct of the poll and the 2007 Federal Election.

26 This limb of the motion was not developed at the hearing but neither was it abandoned. In any event I would not dismiss the proceedings on this ground. I am satisfied that Mr Horn’s concerns are genuinely held, well articulated and have been ventilated in a responsible manner historically and through these proceedings. In that regard I also take into account some of the unchallenged background to his concerns. I refer to the following passages in his affidavit sworn on 21 November 2007:

6. I have not brought these proceedings, the prior proceedings giving rise to the decision of Justice Nicholson (Horn v Australian Electoral Commission[2006] FCA 1778), or any of my related complaints and concerns communicated to the Respondent, lightly. I am pursuing these grievances in the forum that I sincerely consider to be appropriate because the sanctity of the secret ballot is to me, such an indispensable part of a proper and fair system of representative democracy that I can see no other alternative. To properly explain the importance of this issue to me, it is necessary for me to say some more about my background, beyond the matters contained in my earlier affidavit.

7. I was born in an eastern suburb of Berlin (Rűdersdorf) in 1938. Then there was only one Germany under Hitler. I lived there until 1944. Because of the many bombs falling everywhere my family moved to live with relatives about 100km from Berlin. As the Russian front approached our location we kept moving from one town to the next as refugees in a westerly direction to avoid having to live under communist Russian rule. Many refugees were in that stream towards the West. At the River Elbe we were caught in between the American and Russian forces with the German army in between. I was in the middle of the fighting and saw many dead soldiers. A few days later in May 1944 (sic) the war ended. We kept walking towards the West but still in the Russian occupied zone. We lived under the Russian occupation in East Germany for only several weeks until we managed to cross by night over the boarder (sic) at the river Werra into the West Germany. From then on we lived in a small village in West Germany. I emigrated from West Germany to Australia in 1962.

8. Although I never voted in any election in East Germany, nor did I live in East Germany after I moved to West Germany, I came to develop a strong understanding of the highly unfair and oppressive regime that was in power there from what I was told by friends and relatives who still did live there under the Communist regime. This life experience, and accumulation of understanding about how undemocratic some governments can be, led me to form the view that the institution of free elections must be held sacrosanct. There were no free elections in East Germany. Communist party officials and Stasi agents would intimidate voters during the voting process, and the election outcome was always vastly in favour of the Communist party, although the population hated the communist regime. The theme of free elections was always discussed in East and West Germany and I grew up with the conviction that free elections are the main prerequisite and guarantor for a free democratic society.

9. If a person is not allowed to vote in private in a closed voting compartment, the potential exists under certain political circumstances that others might be in a position to intimidate the voter and influence his vote though actual or perceived supervision. This cannot occur when closed voting compartments are provided. It is vital that supervision or any other kind of observations do not occur while a voter is doing anything connected with preparing to vote and marking his or her ballot paper.

27 It follows that the Commission’s motion will be dismissed.

THE SUBSTANTIVE EVIDENCE

28 Mr Horn is a retired Transperth bus driver who was born on 5 December 1938 in Germany before emigrating to Australia in 1962. He became a naturalised Australian citizen in 2001. At the last federal election held on 9 October 2004 he attended to vote at an authorised polling place at the Manjimup Town Hall in Western Australia. He found that the way in which the polling booths were constructed, assembled and arranged at that location did, in his view, not adequately screen voters from observation. By this he means that other persons in the vicinity of the polling booths could observe voters while they were marking their ballot-papers.

29 The compartments of the polling booths at the Manjimup Town Hall did not have a door or screen to adequately prevent other persons including electoral officers or persons associated with political parties from standing near or behind voters marking their ballot-papers and/or from observing the physical movements of voters in the booths.

30 Marking the ballot-paper he says involves the writing of details of voting choices and also the arranging and examining of how to vote cards supplied by political parties when marking the ballot-papers. He said further that the physical walls of the voting booths at the sides of the shelf of the booths were not sufficiently extensive to screen voters from being observed when they marked their ballot-papers.

31 He formed the opinion that he had been provided with a voting compartment where he could not mark his ballot-papers in private. For that reason he left the polling place without casting a vote. He explained that he regards the right and obligation to vote in strict accordance with the Electoral Act as essential to maintaining the secrecy of the ballot. Clearly he regards the issue importantly and this is why he has, amongst other steps, issued two sets of proceedings in relation to his rights and obligations. His attempts to voluntarily obtain from the Commission the documents to which I have referred were unsuccessful. That is why he issued proceedings to have such material produced.

32 Mr Ian Stringall is the Director of Operations for the Commission in Western Australia and has held that position since 2005. He is clearly experienced having been involved with or having conducted as a returning officer at least eight federal elections, two constitutional referendums and five national Aboriginal and Torres Straight Islander elections. He described the statutory responsibility for the Commission to conduct federal elections and to administer compulsory enrolment and compulsory voting.

33 The Commission’s resources including manpower and funding are presently committed to preparation for the 2007 Federal Election which is a nation wide project and ‘an enormous logistical, complex and costly undertaking with a public expectation that it will be conducted on 24 November 2007 fairly, impartially, effectively and efficiently’. At the 2007 Federal Election 13.6 million Australians are eligible to vote compared with a little over 13 million for the previous election.

34 The Commission’s role is also to gather information and to evaluate each electoral event and if there are any electoral matters or issues arising after an election the Commission is required to report them to the Joint Standing Committee on Electoral Matters. The Joint Standing Committee in turn has a role of enquiring into and reporting the matters relating to electoral laws and practices. As far as Mr Stringall was able to ascertain no one other than Mr Horn has ever made a complaint relating to structure, lay-out or appearance of voting compartments at any time to the Commission in federal election history.

PRIVACY

35 The Commission disagrees with Mr Horn’s argument that the compartment must have a door or a screen or curtain. As to privacy generally however, insofar as any invasion of voting privacy is concerned, the evidence from the Commission is that it has developed polling place procedures which are issued to polling officials providing a step-by-step guide to assist them in every phase of the election process. All polling officials receive a copy of the procedures appropriate to their duties. That gives them procedural information for their respective roles. It is a condition of their employment that they also attend a formal face-to-face training session prior to the election.

36 Those polling officials comprise several levels, first, the divisional returning officer responsible for the conduct of the federal elections for an electoral division, then the officer in charge who is responsible for the management of a specific polling place and then the polling place officials who are assigned specific duties. These include ordinary vote issuing officers, ballot box guards and queue controllers. They are responsible to the officer in charge. Every officer in charge in turn is charged with a duty of setting up the polling place on polling eve and the Commission’s procedures issued to the officer in charge give lay-out guidelines and examples. Those documents were produced to the Court. The divisional returning officer provides a plan for the lay-out of a specific polling place which the officer in charge is expected to follow as closely as possible following inspection of the polling place. Modifications can be made if the officer in charge considers there are good reasons to do so and after discussion with the divisional returning officer, if appropriate.

37 In the case of a polling official assigned to the duty of an ordinary vote issuing officer, the duties include ensuring that ballot-papers are issued to each voter only when and not before there is a vacant polling compartment available for that voter to immediately occupy.

38 The queue controller as the title suggests has the duty to manage the queue of voters. This includes organising them into a single queue, directing them to the voting issuing points, identifying voters who require assistance and assisting them if necessary or referring them to the enquiry officer. The effect of this control is to ensure that the flow of electors through the polling place is conducted in an orderly manner and there are not crowds milling around locations such as the voting compartments.

39 The actual voting compartments to be used after they have been delivered to the polling places throughout the country for use tomorrow have dimensions of a depth of 420 mm, a width of 580 mm and a height of 1800 mm. The sides to the compartment are almost a complete rectangle. The depth is such that the ballot-paper can be the best part of 420 mm away from the front of the compartment. A person would have to be well and truly over a height of 180 cm to be physically able to view the contents of a ballot-paper from an adjacent booth assuming he or she were not restrained from doing so. Even then that would require that the voter marking the ballot-paper took no steps to shield the mark while it was being applied.

40 The totality of these measures is such that I could see very little risk that a voter taking ordinary steps to mark the ballot-paper (that is to say, not taking particular caution) could have his or her marking of the ballot-paper viewed by another person.

Construction arguments

41 But the question remains whether, despite this very low risk, there has been compliance with s 206 of the Electoral Act. In effect, Mr Horn contends there should be a door or curtain covering the front of the booth.

42 In the initial proceedings, the Court rejected the Commission’s submissions that there was no reasonable prospect of success insofar as his construction of s 206 of the Electoral Act was concerned. The Commission argued that s 206 of the Electoral Act is in its terms referable to ‘marking’ of ballot-papers so that the protection sought to be provided by the section was not against general observation of the voter at the moment in time of marking the ballot-paper but specifically against how the ballot-paper is marked. The Commission repeats these arguments now and contends that this construction is supported by s 233(1)(a) where there is a further reference to marking of the ballot-paper. The Commission also relies on s 338 providing a penalty in respect of any unauthorised person marking a vote or making any mark or writing on a ballot-paper of any elector. Section 348 of the Electoral Act gives a power to control behaviour at polling booths. It follows, according to the Commission, that s 206 needs to be read so that the expression ‘screen the voters from observation while they are marking their ballot-papers’ means only screening the specific act of marking the ballot-paper by the voter.

43 The argument advanced by Mr Horn, however, is that the purpose of s 206 is to provide protection to voters while they are in the compartment in relation to all of the actions which give rise to and lead up to the specific marking of the ballot-paper. .

44 This is substantially a case about statutory construction.

45 The literal approach as defined and explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steam Ship Co Ltd (the Engineers case) (1920) 28 CLR 129 at 161-162 is an appropriate starting point. Mr Horn contends that on a literal construction of the provisions of the Electoral Act applying the natural and ordinary meaning of the respective expressions ‘screen the voters from observation’ and ‘in private’ the uncontroverted facts establish distinct contraventions by the Commission, namely:

(a) the voting compartments are only partly enclosed;

(b) there is no screen on one of the four sides of the voting compartment;

(d) when voters retire to an unoccupied compartment of a polling booth they are not accorded full or proper privacy for the marking of their vote on their ballot-papers.

46 However, in my view, for the purposes of the literal construction, the expression ‘screen the voters from observation’ is qualified. The qualifying words ‘while they are marking their ballot-papers’ suggest not only that the screening is to occur at that particular time but also for that particular purpose. Therefore the question is whether the steps to be taken do achieve that purpose.

47 In my view a literal approach does not aide the construction which Mr Horn seeks to advance. Both s 206 and s 233 could easily have specifically required that the Commission fit the compartments with doors and/or curtains or screens if that was the legislative intent. There does not appear to be any compelling reason to depart from the literal approach and in the absence of some absurdity or repugnance or inconsistency with the balance of the statute, a departure seems unnecessary.

48 I consider the clear, ordinary meaning of the words of ss 206 and 233(1) indicate that the purpose of the provisions is to enable voters in private to mark their vote on the ballot-paper, to do so alone without any interference, and to conceal their vote both in the course of marking it and after it is marked on the ballot-paper. Accordingly, the process of voting as set out in s 233(1) is designed to achieve these objectives.

49 Other provisions of the Electoral Act including s 338 which precludes a person other than the voter unlawfully marking the ballot-paper and s 348 which enables the Commission to control behaviour at polling booths are also consistent with the purpose of secrecy of the vote-casting in the manner I have described. I am satisfied that the voting compartments to be used as well as the proposed lay-out of polling places during the 2007 Federal Election and the relevant polling place procedures for controlling of queues and the ballot-paper issuing points are suitable to meet the requirements of the Electoral Act in s 206 and to assist voters to comply with s 233(1) by marking their ballot-papers alone and in private and concealing the vote that they have made.

50 Mr Horn contends that the literal approach to construction of the sections which he favours is reinforced by a purposive and contextual approach. The context, he says, requires consideration of the existing state of the law and the mischief which one may discern the statute was intended to remedy. Moreover, the context should be evaluated as a first step: (see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 per McHugh J at 112). For the purposive approach he relies on s 15AA of the Acts Interpretation Act 1901 (Cth) and Mills v Meeking (1990) 169 CLR 214 at 235. Those principles are not in doubt but the application of them is the focus of the dispute.

SECRET BALLOT

51 In examining the context, it is said that the achievement of a ‘secret ballot’ was one of several important purposes behind the enactment of the Electoral Act and its predecessor (the Commonwealth Electoral Act 1902 (Cth)). In that regard reliance is placed on the Commission’s own publicly available material acknowledging the starting point of the process of the federal electoral reform which describes the initial legislation as providing for, amongst other things, a secret ballot for both the Senate and the House of Representatives. It is said then that any construction of s 206 which undermines or minimises the operation of the two provisions effecting the purposes of the secret ballot ought not readily be adopted. I consider that little weight can be placed on this material as it depends on what the author meant by ‘secret ballot’. The author may well have been describing the process which the Commission presently adopts and by which the Commission contends that the secrecy as to how a person votes is preserved.

52 The right to participate in the franchise, that is, to vote and the exercise of its significant components constitute a fundamental right. The High Court has stressed that a clear indication of statutory intent must be demonstrated to abrogate or curtail a fundamental right (in Coco v R (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ). Mr Horn says the text of ss 206 and 233(1)(a) of the Electoral Act does not manifest any sufficient intention to displace the presumption in favour of participation in the franchise in a manner that properly gives effect to a secret ballot. This may also be so but the question remains whether there is any curtailment.

53 Mr Horn contends that both the purposive and contextual approach to interpretation of the sections shows that they have been breached.

54 This argument, however, depends upon a conclusion being reached that a purpose of the Electoral Act is to provide a secret ballot in the manner for which Mr Horn contends. The difficulty with this argument is in defining what is meant by ‘secret ballot’. The expression secret ballot is not used anywhere in the Electoral Act but the Electoral Act does refer to privacy. I am unable to discern from the Act itself a purpose that a person who is voting should not be able to be observed at any time after entry into the separate voting compartment. In my view the meaning attaching to ‘… so as to screen the voters from observation while they are marking their ballot-papers … .’ in s 206 is amplified by the words in s 233. This requires the voter on the receipt of the ballot-paper to without delay retire alone to some unoccupied compartment of the booth and there, in private, mark his or her vote on the ballot-paper. If it is legitimate to identify as a purpose or part of the context that the ballot should be secret, I consider that secrecy attaching to ‘secret ballot’ means secrecy as to the manner in which a person has voted. I equate ‘in private’ in s 233 to ‘secret’ in that sense.

55 It is accepted by Mr Horn that no explicit purpose is expressed in the Electoral Act but he stresses that the achievement of a secret ballot was one of several important purposes behind the enactment of the Electoral Act and its predecessor the Commonwealth Electoral Act 1902 (Cth). In my view this may or may not be so but it all depends upon the proper meaning of ‘secret ballot’ in the context.

56 While it is clear that the right to vote or the franchise is a fundamental right which in the absence of a very clear indication of statutory intent should not be abrogated, I am unable to discern any curtailment of or derogation from that fundamental right by the Commission’s approach to s 206.

57 Much of Mr Horn’s argument turned on the fundamental right to a secret ballot. That term was not defined but in reality the argument kept coming back to the need for a door, screen or curtain to the open side of the voting compartment. The need for that addition was said to be supported by the requirement that there be a ‘secret ballot’. But this in turn again raises the question of what constitutes a ‘secret ballot’.

58 There is no legislative or constitutional requirement in express terms for a ‘secret ballot’ in this Election. However in Yarran v Blurton and Others (1992) 107 ALR 514, when deciding whether or not there had been compliance with a specific statutory requirement for a ‘secret ballot’, French J examined the issue in these terms:

41. The history of legislative and judicial approaches to the requirement for secrecy in voting demonstrates variations in understanding of the necessary elements of a secret ballot. The different approaches to very similar voting arrangements adopted by Gray J. in Pullen's case and Olney J. in Brahim suggest that contemporary views of what is necessary may differ according to the circumstances of the case. Accepting that there is a range of possible voting systems which would answer the description "secret ballot", the question is what are the minimum necessary conditions to be met before a voting system can be so characterised. It must be answered by reference to the purpose of the secret ballot. In relation to parliamentary, local government and union elections, that purpose is to encourage voters to exercise a choice for their preferred candidate free from the possibility that any social, economic, physical or other sanctions may be applied to them for voting or not voting in a particular way. Where the vote cast cannot be known, promises to vote in a specific way cannot be verified. In the absence of information about the vote cast, threats and inducements have little or diminished force.

42. Having regard to the purpose of the secret ballot, the mechanism adopted must enable the elector to cast a vote in private, that is to say without disclosing it to any other person, and must enable the anonymity of that vote to be protected. This may be achieved by methods which would be described as physical or mechanical. They may be supported by the imposition upon electoral officials of appropriate statutory duties of non-disclosure. The question whether a given mix of techniques constitutes a secret ballot involves an assessment of the extent to which it achieves the objectives of a private vote and protection of anonymity. What is clear, in my opinion, is that despite the use in Victoria in 1856 of a system under which the voter's electoral number appeared on the ballot paper, that would not be accepted as a secret ballot today. Physical isolation of the voter and a system for separating or keeping separate the voter's identity and the record of the vote cast are essential elements of the modern understanding of the secret ballot. The provisions under which blind, illiterate or incapacitated electors cast their votes with the assistance of an electoral official is a compromise adapted to the particular class of case. It would not be understood as a secret ballot if applied to the wider population of electors.

59 In my view the Commission’s methodology attains the requisite objectives of a secret ballot as there described.

60 Mr Horn relied upon an article by Dr Peter Brent in the Australian Journal of Political Science, in which the author made the point that Australia introduced the concept of government issued ballot-papers and concepts such as particular secrecy above and beyond that available in certain other countries. In that article he also compared a ‘secret ballot’ with other methods of voting such as voting by a show of hands, on the voices or on a signed voting paper. In my view such a comparison is not only correct but illustrates the accurate meaning of ‘secret ballot’, namely, a ballot by which the manner in which the voter has voted is secret, private or confidential.

61 It follows that even if Mr Horn’s argument that the franchise must include and mean a ‘secret ballot’ is accepted, that the secrecy is not lost by the absence of a door or curtain to the compartment. The secrecy attaches to the actual vote itself. There is no evidence that any risk to that secrecy will occur by the absence of a door or curtain.

62 Even if the secrecy of the vote is an ingredient of the fundamental right to vote, in my view the secrecy of the vote is preserved in all the methodology pertaining to the vote which the Commission intends to adopt.

THE CONSTITUTION AND CONTEXT

63 Mr Horn has contended that ss 7 and 24 of the Constitution and in particular the terms ‘directly chosen by the people’ appearing in those sections govern the manner in which ss 206 and 233(1)(a) of the Electoral Act are to be construed. Specifically, Mr Horn contends:

(a) sections 7 and 24, in their context and structure, entrench a constitutional protection of the right to vote in Australia;

(b) the exercise by an elector of the franchise, and/or participation in the central processes of representative government, constitutes a fundamental political right;

(c) the content of that fundamental right extends to matters which include being free from any risk of observation when casting a vote and during conduct preparatory and incidental thereto;

(d) provisions of the Electoral Act which effect to the central processes of representative government must be construed and applied in a manner which effects and implements, rather than derogates from, those central processes of representative government; and

(e) accordingly, provisions which enact obligations;

(i) upon the Commission to construct voting compartments so as to screen voters from observation while they are marking their ballot-papers; and

(ii) upon Mr Horn to retire alone to an unoccupied voting compartment and there, in private, to mark his vote on the ballot-paper;

must be construed and applied so as to effect and implement, rather than derogate from, the concept of a secret ballot.

64 Although Mr Horn has raised this constitutional point, it is accepted that courts will generally decline to decide a case on constitutional grounds unless it is necessary to determine the matter between the parties. Considerable emphasis was placed by Mr Horn on the significance of ss 7 and 24 of the Constitution and in particular the words ‘directly chosen by the people’ in those provisions. Reliance was placed on the conclusion in various cases by the High Court that these words entrenched in the Constitution principles of representative democracy (see Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nation Wide News Pty Ltd v Wills (1992) 177 CLR 1). Even in McGinty v Western Australia (1996) 186 CLR 140 the High Court while rejecting the proposition that those provisions viewed in their context entrenched a system of relative voting equality amongst federal electorates, reinforced repeatedly the manner in which the Constitution provided for representative democracy.

65 I have difficulty in accepting that the Constitution itself entrenches a secret ballot, in the manner contended for by Mr Horn, as well as entrenching the right to vote. Indeed, as Mr Horn acknowledges, there are a number of statements of the High Court to suggest that that is not the case. For example, the contrary view was expressed by McHugh J at [63]-[65] in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 and by Gummow and Hayne JJ at [154]. Similarly Gummow J again expressed the contrary view in McGinty 186 CLR at [58]. While it may be that these observations were not essential to the issues to be determined in those cases, they are nevertheless very persuasive.

66 Mr Horn placed heavy reliance on the recent decision of Roach v Electoral Commissioner (2007) 239 ALR 1 in which there were numerous statements by the High Court reinforcing the fundamental nature of a system of representative government and a citizen’s right to vote. In doing so, the Court made it clear that the Constitution left it to Parliament to define the nature and extent of exceptions to the fundamental individual right but in doing so stressed that Parliament’s power was not unconstrained because the franchise was critical to representative government lying at the centre of the concept of participation in the life of community and its citizenship (Gleeson CJ at [7]-[9]). Similar statements were made in the joint judgment of Gummow, Kirby and Crennan JJ at [43] but, of course, Roach 239 ALR 1 was a case in which the franchise was to be totally removed for a certain class of voters. This is a very different case. In my view there will be no curtailment at all of the fundamental right to vote.

67 For Mr Horn’s argument to succeed at any level it seems to me that he must satisfy the Court that a secret ballot is something which not only preserves the secrecy as to how a vote has been exercised but also precludes anyone from observing any aspect of the exercise of the vote even if it cannot be seen how the vote itself is being exercised. I recognise that Mr Horn says that the latter is the proper literal meaning to be attached to s 206 but I can not agree. In my view s 206 is not intended to prevent the voter from being observed in all the ancillary and preparatory steps to marking the ballot because it would be impossible to say when those steps start. There is no greater justification for saying that the ancillary steps to marking the ballot commence on entry into the voting compartment than there is in saying that the ancillary steps commence on collection of the ballot-paper. Clearly the Act was not intended to preclude someone being observed on collection of the ballot-paper. To the contrary, as part of that process the voter needs to identify himself or herself to a Commission officer.

Conclusion

68 I consider that it is reasonably clear that ‘in private’ where referred to in s 233(1)(a) relates to concealing the way in which the voter has voted on the ballot-paper as also referred to in s 233(1)(b). Consistently with this, in my view the screening of voters from observation referred to in s 206 is intended to ensure privacy of the way in which voters have marked the ballot-paper.

69 Neither of the sections, in my view, could reasonably be thought to be guaranteeing voters total privacy in relation to all of the acts leading up to voting, such as adjusting how to vote papers within the booth to examine them before marking the ballot-paper.

70 Equally carrying only one how to vote document (from one candidate or one party) may be identified from the moment the voter enters the polling booth. It is open for a voter to take a number of different such documents. Some may decide to take none. Those who are not troubled by such appearances may take just one. But whatever such documents are taken, initially or into the compartment, the manner in which the ballot-paper itself is marked remains private.

71 There is no reason why the fact that a voter is in a booth marking a ballot-paper as required by law should in itself be the subject of privacy. There is every reason, however, to guarantee privacy of the manner in which the vote is exercised. In my view that is the purpose to which the Electoral Act is directed and is consistent with both a purposive and a literal reading of the words of the two sections when taken together.

Availability of mandamus or an order in the nature of mandamus

72 The Commission submits for various reasons that mandamus does not lie as a form of relief available to Mr Horn. As I am completely satisfied that there is no foreshadowed breach of the Electoral Act by the Commission, it is unnecessary, given the urgency of this matter, to consider this submission.

THE DISCRETION TO REFUSE RELIEF

73 Mr Stringall makes the point that if the Court was to grant Mr Horn a declaration and/or make an order compelling the Commission to provide polling places and voting compartments of a different lay-out and construction than have been organised for the Election day, it would have serious consequences nationally for the administration of the 2007 Federal Election. Indeed he says the Election would not be able to proceed because the Commission would not have the funds nor would it have sufficient time to arrange the manufacture and delivery of new voting compartments for the thousands of polling places across the nation in time for the Election.

74 The voting compartments which have been produced cost $891,092 inclusive of GST. In addition, other expense has been incurred in the production of voting screens that the Commission produces such as tabletop voting screens and disabled access voting screens. The amount spent in distributing the voting compartments from the production point to the different State offices is over $136,000. That is a sum which does not include the cost of distributing the compartments from the State offices to the polling places which clearly can also be substantial.

75 Of its annual appropriation from Commonwealth Parliament of $145 million (for all activities of the Commission) already at least $95 million has been spent or allocated towards the 2007 Federal Election alone as at the date of swearing Mr Stringall’s affidavit. He makes the point that a substantial portion, if not all of those costs, which are public funds would be thrown away if the election did not proceed.

23 NOVEMBER 2007

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN

Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.

3. Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN

Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE:	MCKERRACHER J
DATE:	23 NOVEMBER 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

2 Section 206 of the Electoral Act relevantly reads:

Polling booths shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot-papers ...

3 It is helpful and necessary to read s 206 with s 233 which relevantly provides:

(1) Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot-paper;

(b) fold the ballot-paper so as to conceal his or her vote and:

(i) … deposit it in the ballot-box …;

(ii) …

RELIEF SOUGHT AND PROCEDURE

NOTICES UNDER s 78b OF THE JUDICIARY ACT 1903 (CTH)

The issues

History subsequent to the 2006 decision (Horn [2006] FCA 1778)

Motion to dismiss

JURISDICTIONAL ARGUMENT

19 There is no dispute about the basic principle. The issue is whether the declaratory relief now sought by Mr Horn is in the nature of an ‘advisory opinion’.

25 The next ground in the Commission’s motion for dismissal of the proceedings is that the application is frivolous and vexatious and an abuse of the process of the Court because:

(a) it has no prospects of success for the standing reason discussed above;

27 It follows that the Commission’s motion will be dismissed.

THE SUBSTANTIVE EVIDENCE

PRIVACY

Construction arguments

44 This is substantially a case about statutory construction.

(a) the voting compartments are only partly enclosed;

(b) there is no screen on one of the four sides of the voting compartment;

(d) when voters retire to an unoccupied compartment of a polling booth they are not accorded full or proper privacy for the marking of their vote on their ballot-papers.

SECRET BALLOT

53 Mr Horn contends that both the purposive and contextual approach to interpretation of the sections shows that they have been breached.

59 In my view the Commission’s methodology attains the requisite objectives of a secret ballot as there described.

THE CONSTITUTION AND CONTEXT

(a) sections 7 and 24, in their context and structure, entrench a constitutional protection of the right to vote in Australia;

(b) the exercise by an elector of the franchise, and/or participation in the central processes of representative government, constitutes a fundamental political right;

(c) the content of that fundamental right extends to matters which include being free from any risk of observation when casting a vote and during conduct preparatory and incidental thereto;

(e) accordingly, provisions which enact obligations;

(i) upon the Commission to construct voting compartments so as to screen voters from observation while they are marking their ballot-papers; and

(ii) upon Mr Horn to retire alone to an unoccupied voting compartment and there, in private, to mark his vote on the ballot-paper;

must be construed and applied so as to effect and implement, rather than derogate from, the concept of a secret ballot.

Conclusion

Availability of mandamus or an order in the nature of mandamus

THE DISCRETION TO REFUSE RELIEF

76 Those matters would appear to go to the exercise of the Court’s discretion in granting declaratory relief. If I am wrong on the statutory construction point, I should make it clear that I would not, had I accepted Mr Horn’s argument, have made a declaration for the following reasons:

77 The relief if granted would pose a serous risk of an outcome quite disproportionate to the consequence to Mr Horn of any breach. Specifically:

(a) the Commonwealth Parliament has been prorogued for the Federal Election. The possibility of delay in the process of electing the new Commonwealth Parliament and representative government is not in the national interest;

(b) of the $145 million of public money appropriated to the Commission for the 2007-2008 financial year by the Commonwealth Parliament at least $95 million has been expended on or allocated to the Federal Election to date and would be in some (probably) considerable measure thrown away.

(c) there is clearly an expectation of the 13.6 million enrolled voters and the Australian public generally that the poll will be conducted and completed successfully tomorrow;

(d) of the 13 million other Australians eligible to vote in the 2004 federal election the Commission has not received a complaint as to the construction of the voting compartments, and apart from Mr Horn’s recent complaint has no record of such a complaint in the history of federal elections.

78 I have been urged by Mr Horn not to treat the risk or threat of the deferral of the Election as being realistic. It was suggested that I should or could adopt a middle ground of making a declaration only as to Mr Horn’s rights. On the other hand, the Commission is a public body and says that it would be required to consider urgently whether it was acting lawfully if the Court had held otherwise. Such consideration would require a little time and, realistically, quite possibly more than the bare day now remaining before voting commences.

79 There is a risk that the relief realistically could not be confined in its effect to Mr Horn and the polling place at the Manjimup Town Hall. Every polling place in Australia is set up in much the same manner. A declaration that the voting compartments to be provided by the Commission are not fit for the purpose prescribed in ss 206 and 233(1) could also potentially impact nationally so that:

(a) it may open the way for petitions to be filed in the Court of Disputed Returns within 40 days of the return of the writ for the election challenging the polling at electorates across Australia;

(b) it may open the way for voters generally to avoid with impunity accountability for their failure to vote under s 245 of the Electoral Act.

80 As I am satisfied that there has been no breach or failure to comply by the Commission, it is unnecessary for me to exercise my discretion to refuse relief notwithstanding that no case has been made out. Nevertheless, if I am wrong about my conclusion as to the non-compliance by the Commission with the Electoral Act, then I would exercise my discretion to decline relief for the reasons set out above.

Orders

81 The Commission’s motion and Mr Horn’s application will both be dismissed. I will hear counsel on the question of costs.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated: 23 November 2007

Counsel for the Applicant:	RL Hooker

Counsel for the Respondent:	LB Price

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	22 November 2007

Date of Judgment:	23 November 2007

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