FEDERAL COURT OF AUSTRALIA
Scott-Irving v Oakeshott [2009] FCA 487
Broadcasting Services Act 1992 (Cth), Schedule 2, Part 2, cl 3A
Commonwealth Electoral Act 1918 (Cth), s 6, Part XXII, Div 1
Crimes Act 1914 (Cth), s 28
Abbotto v Australian Electoral Commission (1997)44 ALD 481, cited
Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998), cited
Free v Kelly (1996) 185 CLR 296, cited
Gunter v Hollingworth [2002] FCA 943, applied
Hudson v Entsch [2005] FCA 300, cited
Hudson v Lee (1993) 177 CLR 627, cited
Kelly v Campbell [2002] FCA 1125, cited
McClure v Australian Electoral Commission [1999] HCA 31, 163 ALR 734, applied
Mitchell v Bailey (No 2) [2008] FCA 692, 169 FCR 529, cited
Muldowney v Australian Electoral Commission (1993) 178 CLR 34, cited
Pavlekovich-Smith v Australian Electoral Commission (1993) 115 ALR 641, cited
Robertson v Australian Electoral Commission (1993) 116 ALR 407, applied
Rudolphy v Lightfoot [1999] HCA 61, 197 CLR 500, applied.
Smith v Australian Electoral Commission [2008] FCA 953, 104 ALD 395, discussed
Smith v Australian Electoral Commission [2009] FCAFC 43, cited
Sue v Hill [1999] HCA 30, 199 CLR 462, cited
Sykes v Australian Electoral Commission (1993) 115 ALR 645, cited
Webster v Deahm (1993) 116 ALR 223, applied
Whitby v Garlett [2000] FCA 245, 98 FCR 585, cited
Schoff P, “The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function?” (1997) 25 FL Rev 317
Walker K, “Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?” (1997) 20(2) UNSWLJ 257
STEWART GORDON SCOTT-IRVING v ROB OAKESHOTT AND ORS
NSD 207 of 2009
FLICK J
15 May 2009
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS |
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NSW DISTRICT REGISTRY
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NSD 207 of 2009 |
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STEWART GORDON SCOTT-IRVING Petitioner
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AND: |
ROB OAKESHOTT First Respondent
AUSTRALIAN BROADCASTING CORPORATION Second Respondent
AUSTRALIAN ELECTORAL COMMISSION Third Respondent
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JUDGE: |
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DATE OF ORDER: |
15 May 2009 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The petition as filed on 3 November 2008 in the High Court of Australia, sitting as the Court of Disputed Returns, is dismissed.
2. The Petitioner is to pay the costs of the Second Respondent.
3. The Petitioner is to pay the costs of the Third Respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS |
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NSW DISTRICT REGISTRY
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NSD 207 of 2009 |
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BETWEEN: |
STEWART GORDON SCOTT-IRVING Petitioner
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AND: |
ROB OAKESHOTT First Respondent
AUSTRALIAN BROADCASTING CORPORATION Second Respondent
AUSTRALIAN ELECTORAL COMMISSION Third Respondent
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JUDGE: |
FLICK J |
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DATE: |
15 May 2009 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The Petitioner was one of eight candidates who stood for election at a by-election for the Federal seat of Lyne on Saturday 6 September 2008. He was unsuccessful.
2 On 3 November 2008 he filed an election petition in the High Court as the Court of Disputed Returns.
3 The petition seeks the following orders:
1. That the ABC make known in all its media platforms, radio, television and internet, that a more equitable manner of election coverage should have and will be carried out in the future, and an apology be made to the candidates and public on all three of these platforms.
2. That the ABC be directed, encouraged or consider to refuse to carry out what appears to be a “two-party by default” piece of legislation, identified in the “free-to-air” apportionment of radio or television time currently favouring the two dominant parties, which infringes on the right of Independents to be granted equitable media treatment by an impartial public broadcaster.
3. That in light of the reliance by the electorate’s voters on the public broadcaster to be both impartial and vigilant of ABC political advertising requirements, and the ABC’s subsequent, inequitable apportionment of time, space and coverage given to the now-declared winner, (reflected overwhelmingly in the ballot) that the election be declared null and void
4 The Respondents to the proceeding as originally filed in the High Court were Mr Robert Oakeshott (the successful candidate) and the Australian Broadcasting Corporation. Mr Oakeshott has filed a submitting appearance.
5 A summons filed in the High Court by the Corporation seeks an order that “the petition be dismissed, or alternatively, the petition be permanently stayed on the basis that it does not disclose a reasonable claim, is an abuse of process, and does not comply with requirements of section 358(1) of the Commonwealth Electoral Act 1918 in that it fails to comply with sections 355(a) and (aa) of that Act”.
6 On 17 February 2009, His Honour Justice Gummow made orders, including an order that “[t]he petition … be referred for trial by the Federal Court of Australia”.
7 On 20 April 2009, directions were made in this Court to accommodate the hearing of the summons in advance of the hearing of the petition. A like course, it may be noted, was pursued by Her Honour Justice Bennett in Smith v Australian Electoral Commission [2008] FCA 953, 104 ALD 395. To entertain the Corporation’s summons in advance of the hearing leaves outstanding a request made by the Petitioner for the production by the Corporation of a substantial number of documents. The production of those documents, upon the case for the Corporation, is unnecessary and irrelevant.
8 Detailed written submissions have been filed, including submissions filed by the Australian Electoral Commission.
9 The course pursued at the hearing of the summons on 30 April 2009 was to invite the Petitioner to put all such submissions as he thought appropriate in advance of hearing submissions from the Corporation. In that manner an understanding could be gleaned as to both the issues sought to be raised by the petition and how the Petitioner envisaged further materials could be called in aid of those issues.
10 When attention is given to the legislative scheme set forth in the Commonwealth Electoral Act 1918 (Cth) (“the 1918 Act”) and the terms of the petition as filed, it is considered that there are a number of reasons why the relief claimed cannot be granted and that the production of further materials could not remedy the deficiencies in the petition. Consideration of further documents, or an “investigation” as sought by the Petitioner, cannot overcome the fundamental deficiencies as are presently evident on the face of the petition. There is no utility in not resolving the Corporation’s summons at the outset.
11 An order should be made as sought in the summons that the petition be dismissed.
12 Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were served by the Corporation prior to the hearing of the present summons. No Attorney has sought to intervene.
The Legislative Scheme
13 Part XXII of the 1918 Act provides for the manner in which an election may be disputed. It provides for there to be a Court of Disputed Returns and sets out the powers of that Court.
14 Within that Part, s 353(1) provides that “[t]he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns …”. Section 354(1) establishes the High Court of Australia as the Court of Disputed Returns. Jurisdiction to determine any dispute as to the validity of any election or return is vested exclusively in the Court of Disputed Returns: Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998).
15 Section 355 sets forth the “requisites” of a petition as follows:
Requisites of petition
Subject to section 357, every petition disputing an election or return in this Part called the petition shall:
(a) set out the facts relied on to invalidate the election or return;
(aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;
(b) contain a prayer asking for the relief the petitioner claims to be entitled to;
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment;
(d) be attested by 2 witnesses whose occupations and addresses are stated;
(e) be filed in the Registry of the High Court within 40 days after:
(i) if the polling day for the election in dispute is not the polling day for any other election — the return of the writ for the election; or
(ii) if the polling day for the election in dispute is also the polling day for another election or other elections — the return of whichever of the writs for the election in dispute and that other election or those other elections is returned last; or
(iii) if the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution is in dispute — the notification of that choice or appointment.
16 Section 358 provides as follows:
No proceedings unless requirements complied with
(1) Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with.
(2) The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa).
(3) The Court shall not grant relief under subsection (2) unless it is satisfied that:
(a) in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies; and
(b) the grant of relief would not unreasonably prejudice the interests of another party to the petition.
Section 358(1) “does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns”: Rudolphy v Lightfoot [1999] HCA 61 at [10], 197 CLR 500 at 507 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
17 Section 360 sets forth the powers of the Court as follows:
Powers of Court
(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:
(i) To adjourn;
(ii) To compel the attendance of witnesses and the production of documents;
(iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot‑papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents;
(iv) To examine witnesses on oath;
(v) To declare that any person who was returned as elected was not duly elected;
(vi) To declare any candidate duly elected who was not returned as elected;
(vii) To declare any election absolutely void;
(viii) To dismiss or uphold the petition in whole or in part;
(ix) To award costs;
(x) To punish any contempt of its authority by fine or imprisonment.
(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election.
(4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.
Section 362 is directed to findings that may be made as to “bribery”or“undue influence” and “any illegal practice”. Those terms are defined by s 352(1). Section 368 provides that all decisions of the Court are to be “final and conclusive and without appeal” and are “not to be questioned in any way”. This section does not infringe s 73 of the Constitution: Sue v Hill [1999] HCA 30, 199 CLR 462; Smith v Australian Electoral Commission [2009] FCAFC 43.
18 Where a petition has been referred to the Federal Court of Australia for trial, s 354(2) provides that this Court “shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns”.
19 No occasion in the present proceeding arises to consider the debate which has occurred as to the Constitutionality of these provisions: Schoff P, “The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function?” (1997) 25 FL Rev 317; Walker K, “Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?” (1997) 20(2) UNSWLJ 257.
The Role of the Australian Electoral Commission
20 The Australian Electoral Commission is established under s 6 of the 1918 Act.
21 With the leave of the Court of Disputed Returns it may enter an appearance in any proceeding in which the validity of an election or return is disputed and may be represented and heard: s 359.
22 In commenting upon s 359, Brennan CJ in Free v Kelly (1996) 185 CLR 296 at 305 stated that:
The Commission may be represented and heard under s 359 in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest. The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings. Being incidental to the proper performance of its statutory functions, the cost of being represented and heard ought properly to be borne as a cost of the Commission’s administration. This is such a case. Expressing, as I do, appreciation of the considerable assistance that the Commission offered — not least in the preparation of an agreed statement of facts — it is appropriate to make no order with respect to the costs of the Commission.
23 When the proceeding was before Gummow J, the Australian Electoral Commission sought to intervene in order to support the relief claimed by the Corporation that the petition be dismissed. His Honour, when making orders on 17 February 2009, ordered that the Commission be added as the Third Respondent to the proceeding. When seeking leave, the Commission foreshadowed that it sought to support the Corporation’s contention that the petition fails to comply with s 355 and should be dismissed. It wished “to be available to assist the Court on any constitutional issues that might arise in the proceedings”.
24 Section 359 further provides that where the Commission is given leave to enter an appearance, it “shall be deemed to be a party respondent to the petition”. As a “party respondent” it has all the entitlements of a respondent, including the prospect of an order for costs being made in its favour if successful. The role undertaken by the Commission in the present proceeding went beyond the mere task of making “appropriate reference to the Act and to authority in order to assist the Court to determine a petition”. The task undertaken was to support the relief sought by the Corporation; it adopted a “partisan stance” — to employ the language of Brennan CJ.
Section 355(a) and Section 355(aa)
25 Section 355(a) requires a petition to “set out the facts relied on” and s 355(aa) further provides that (subject to s 358(2)) those facts are to be set out “with sufficient particularity to identify the specific matter or matters on which the petitioner relies …”. These two requirements are directed to two different objectives — one objective is to require a petitioner to “set out the facts relied on”; the other objective is to ensure that from those facts “the specific matter or matters on which the petitioner relies” may be identified “with sufficient particularity”. The “question whether … there are sufficient facts set out in” the petition is a question “distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s355(aa)”: Kelly v Campbell [2002] FCA 1125 at [15] per Madgwick J.
26 The relationship between these two requirements, however, involves some “obscurity”. Dawson J in Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648 to 649 addressed the position as follows:
It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on. The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity [references omitted]. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The court would then be required to try the petition even though on its face it could not succeed.
Despite that “obscurity”, it is “clear from s 358(1) that no proceedings may be had on the petition unless it sets out the facts relied on to invalidate the election”: McClure v Australian Electoral Commission [1999] HCA 31 at [23], 163 ALR 734 at 739 per Hayne J.
27 That which a petitioner seeks to dispute by a petition, and the relief claimed, are thus “to be ascertained from the terms of the petition itself as a matter of construction”: Gunter v Hollingworth [2002] FCA 943 at [28] per Cooper J.
The Facts Now Set Out
28 Set forth in the petition under the heading “Statement of Facts” are contained (among others) the following statements:
· “If in Australia, where the Westminster System should be characterised by a career public service which ‘impartially serves the government of the day’ and the ABC is both an independent public service and Australia’s national public broadcaster, then the ABC’s performance during the campaign period breached its impartiality with particular respect to its content and program level on the one hand and its platform levels of ABC Television, ABC Radio and ABC Online on the other. …”
· “The ABC was responsible for an inequitable candidate profile detailing the background of each candidate …, gave inequitable broadcast time to each candidate (able to be verified by ABC political broadcasting requirements) and carried a link to the webpages of three of the candidates, one of which (that of the declared winner) carried no political authorisation statement as required of all political advertising by the Australian Electoral Commission. …”
· “… the winner’s website carried a You Tube attachment (again without authorisation statement) and media releases from the candidate’s extensive 12 year state political career, each of which was a political advertisement and all of which was available during the mandatory, electronic media ‘blackout period.’”
It is also there stated:
· “Possibly a breach of both the Westminister System and the Australian Constitution, the ABC has an election coverage policy document that apportions ‘free-to-air’ radio coverage time to candidates ...”
29 The statement as provided by the petition is a combination of assertions, submissions and conclusions based upon unstated facts and possibly a limited number of identifiable facts. So expressed, it is difficult to isolate “the facts relied on” from the balance of the other statements also made. Although it may be preferable for a petitioner to clearly isolate “the facts relied on” from such other statements as he may wish to make, s 355(a) itself does not expressly impose that obligation. But the present difficulty of identifying “those facts with sufficient particularity”does little to assist the identification of “the subject matter or matters on which” the Petitioner relies.
30 Power is, however, conferred by s 358(2) to “relieve the petitioner wholly or in part from compliance with paragraph 355(aa)”. That power may be exercised “at any time after the filing of a petition”.
31 But there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10], 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed:
[12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but … that is how the matter should be understood.
See also: Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J.
32 The period of 40 days prescribed by s 355(e) in the present proceeding has long expired. The fate of the petition thus stands or falls upon those facts which have been set forth in the petition as filed.
33 The written submissions as filed by the Corporation and the Commission have separately attempted to identify “the facts relied on”. Given the manner in which the “Statement of Facts” in the petition has been expressed, it is perhaps not surprising that there is some divergence between the submissions of both the Corporation and the Commission as to the identification of those “facts”. Whatever those “facts” may be, there is agreement between the two Respondents that the petition should be dismissed by reason (inter alia) of the failure to comply with s 355(a) and (aa) of the 1918 Act. The two Respondents jointly contend that there has been no identification of “facts” which may constitute an “illegal practice” whereby the September 2008 by-election may be declared void.
An Illegal Practice?
34 It is common ground that an election may be declared void where there has been an “illegal practice”.
35 Section 352(1) defines an “illegal practice” as meaning “a contravention of this Act or the regulations”. Given this definition, the continued use of the term “illegal practice” (it has been correctly observed) is “unfortunate” as “[i]t is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature”: Mitchell v Bailey (No 2) [2008] FCA 692 at [9], 169 FCR 529 at 534 per Tracey J.
36 The substance of the Petitioner’s concerns seems to be, at least in part, that there has been a contravention of s 328A of the 1918 Act. So much seems to follow from his reference in his petition to the “link to the webpages of three of the candidates, one of which … carried no political authorisation statement …”.
37 Section 328A provides as follows:
Publication of electoral advertisements on the Internet
(1) A person commits an offence if:
(a) either:
(i) the person publishes an electoral advertisement on the Internet; or
(ii) the person causes, permits or authorises an electoral advertisement to be published on the Internet; and
(b) the electoral advertisement is intended to affect voting in an election; and
(c) the electoral advertisement is paid for by the person or another person; and
(d) the name and address of the person who authorised the advertisement do not appear at the end of the advertisement.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the matter published on the Internet forms part of a general commentary on a website.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
(3) Section 15.2 of the Criminal Code (extended geographical jurisdiction — category B) applies to an offence against subsection (1).
(4) In this section:
“address” of a person means an address, including a full street address and suburb or locality, that is located in Australia at which the person can usually be contacted during the day. It does not include a post office box.
Though he does not identify the provision directly, the Petitioner’s concern seems be that there has been a contravention of s 328A and that such a contravention constitutes an “illegal practice” as defined by s 352(1). If established, s 360(3) confers the power to declare the election void.
38 The power to declare an election void for any “illegal practice” is, however, confined by s 362(3) as follows:
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.
39 The primary submission of the Corporation and the Commission, it is considered, should prevail. As they correctly contend, two fundamental difficulties confronting the Petitioner are insurmountable, namely:
(a) there is an absence of any statement of those facts necessary to establish any “illegal practice”; and, even assuming that such facts could be distilled from the petition;
(b) there is an absence of any facts upon which the Court could be “satisfied that the result of the election was likely to be affected” within the meaning of s 362(3).
Even such a rudimentary fact as the person who committed the “illegal practice” is left unidentified in the petition. Section 355(a) does not require that there be “set out” in the petition the particular provision of the Commonwealth Electoral Act which has been contravened; but it does require there to be “set out”:
· those facts which identify who it was that published or caused to be published, permitted or authorised the publication of the webpage (s 328A(1)(a)(i) or (ii)); and
· those facts which might establish that the electoral advertisement was intended to affect the voting in an election (s 328A(1)(b)).
None of those facts, or facts relevant to the other elements of s 328A, are “set out”. During oral submissions, the Petitioner identified the person who it was said published the electoral advertisement as Mr Oakeshott — but the facts have to be in the petition and not oral submissions. And there is also an absence of any fact set forth in the petition upon which any view at all could be formed as to the effect of any such practice upon the election. Those facts must also be set forth in the petition: Smith v Australian Electoral Commission [2008] FCA 953, 104 ALD 395. Bennett J there concluded:
[15] Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition (Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of “unscrambling” the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied.
[16] I accept the Commission’s submissions that the statutory threshold has not been established. The petition does not set out the essential facts relied on to invalidate the election as required by s 355(a).
Nor is there any further evidence upon which the Court could now be “satisfied that the result of the election was likely to be affected” by the illegal practice to which the Petitioner refers. An Affidavit as filed on behalf of the Corporation establishes that the results of the election for the seat of Lyne were that the First Respondent, being the candidate who won the election, polled 47,306 votes (63.8% of the vote); the Petitioner polled 400 votes (0.54% of the vote).
40 The “very minimum assertion necessary to constitute a fact which will ‘invalidate [an] election or return’ for the purposes of s 355(a) of the Act is one raising a matter or matters by which ‘the election was likely to be affected’”: Webster v Deahm (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase “likely to be affected”, in Kelly v Campbell [2002] FCA 1125, Madgwick J observed:
[20] … It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word “likely” should be understood.
The present petition has not provided that “very minimum assertion” in respect to any fact or facts that may be discerned.
41 The statement in the petition as to the “You Tube attachment” and that there was publication “during the mandatory, electronic media ‘blackout period’” suffers from the same deficiencies. Moreover, and to the extent that reliance is sought to be placed upon a contravention of clause 3A of Part 2 of Schedule 2 of the Broadcasting Services Act 1992 (Cth) by reason of publication during the “blackout period”, it may be further noted that s 362(4) of the 1918 Act provides as follows:
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 Radiocommunications Act 1992.
It is unnecessary to resolve whether or not this provision applies to internet publication or applies to the Corporation.
42 There has thus been a failure to comply with s 355(a) in respect of these grounds upon which the Petitioner seeks to have the election declared void.
Undue Influence?
43 In those circumstances envisaged by the 1918 Act, an election may also be declared void where there has been “undue influence”.
44 Section 362(1) identifies these circumstances as follows:
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.
Section 352(1) defines “undue influence” as meaning “a contravention of section 327 of this Act or section 28 of the Crimes Act 1914”.
45 Section 327 of the 1918 Act provides as follows:
Interference with political liberty etc.
(1) A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.
Penalty: $1,000 or imprisonment for 6 months, or both.
(2) A person must not discriminate against another person on the ground of the making by the other person of a donation to a political party, to a State branch or a division of a State branch of a political party, to a candidate in an election or by‑election or to a group:
(a) by denying him or her access to membership of any trade union, club or other body;
(b) by not allowing him or her to work or to continue to work;
(c) by subjecting him or her to any form of intimidation or coercion;
(d) by subjecting him or her to any other detriment.
Penalty:
(a) if the offender is a natural person—$5,000 or imprisonment for 2 years, or both; or
(b) if the offender is a body corporate—$20,000.
(3) A law of a State or Territory has no effect to the extent to which the law discriminates against a member of a local government body on the ground that:
(a) the member has been, is, or is to be, nominated; or
(b) the member has been, is, or is to be, declared;
as a candidate in an election for the House of Representatives or the Senate.
(4) In subsection (3)
“member of a local government body”means a member of a local governing body established by or under a law of a State or Territory.
And s 28 of the Crimes Act provides as follows:
Interfering with political liberty
Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.
Penalty: Imprisonment for 3 years.
46 Although it is not self-evident on the face of the petition, the written submissions as filed by the Petitioner advance a contention as to “undue influence”. Those submissions refer to a number of matters and state in part (without alteration) as follows:
That these elements amounted to Rob Oakeshott’s “known or authorized “undue Influence” by the ABC is for the Court to determine.
The petition sets forth no facts upon which any suggestion could be advanced (let alone sustained) that Mr Oakeshott “committed or has attemped to commit ... undue influence”.
47 The contention that is sought to be advanced by the Petitioner is that the election should be declared void by reason of the “undue influence” of the Corporation. That influence is said to emerge in part from a “Profile and History” of election candidates apparently prepared by the Corporation, which is annexed to the petition as filed. That “profile” in part sets forth quite detailed information in respect to Mr Oakeshott; but contains but a two-line “profile” of the Petitioner. The “profile” of another candidate is even more cryptic than that of the Petitioner.
48 Notwithstanding the Petitioner’s use of the term “undue influence”, the contention is properly understood as but a further instance of an alleged “illegal practice”. There is no contention in the present proceeding that the successful candidate “committed or has attempted to commit … undue influence” for the purposes of s 362(1). There is no basis upon which the Applicant can contend that the successful candidate “committed or has attempted to commit … undue influence”. There is no basis for any finding as to any contravention of either s 327 of the 1918 Act or s 28 of the Crimes Act 1914 (Cth).
49 The conduct of the Corporation relied upon, if it is to be a basis upon which the election may be declared void, must constitute an “illegal practice”, namely, a contravention of the 1918 Act. Again, there are no facts set forth in the petition upon which any conclusion could be reached as to a contravention of the 1918 Act by reason of the manner in which the “Profile and History” has been prepared or published. And there is no basis upon which any view could be reached that the result of the election was likely to have been affected by the “Profile and History”.
Inequitable Apportionment of Publicity?
50 It was further understood that an alternative way in which the Petitioner sought to advance his contention that there had been an “unfair” or inequitable apportionment of publicity to one or other of the candidates in the Lyne by-election was his reliance upon what he characterised as a “duty of impartiality” owed by the Corporation. His petition thus refers to a “Westminster System … characterised by a career public service which ‘impartially serves the government of the day’ and the ABC is both an independent public service and Australia’s national public broadcaster…”
51 Advanced as a contention founded upon an alleged “illegal practice”, the contention cannot avoid the requirement to comply with s 355(a) or s 362(3).
52 Expressed more generally as a duty of impartiality or a duty to treat candidates fairly, rather than as an “illegal practice”, the requirement imposed by s 355(a) nevertheless remains — and has not here been satisfied. The statement that the Corporation “breached its impartiality” is considered to be more a conclusion than a fact. Even if it were characterised as a fact, there is no further particularisation or specification of those other facts necessary to establish a “breach”. The same conclusions may also be reached in respect to the statements that “[t]he ABC was responsible for an inequitable candidate profile” and “gave inequitable broadcast time to each candidate”. These statements are but “bare assertions” that are incapable of satisfying s 355(a). In Webster v Deahm (1993) 116 ALR 223, Gaudron J, when addressing a petition which made allegations of undue influence, concluded at 227:
None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act. There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition “set out … facts” relied on to justify the relief sought. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a).
See also: Whitby v Garlett [2000] FCA 245 at [28], 98 FCR 585 at 594 to 595 per French J (as His Honour then was). The mere fact that one candidate’s profile may be lengthier than another’s does not of itself establish any “inequitable” treatment.
53 And, even if the requirement imposed by s 355(a) was to be met, s 362 “provides exhaustively as to the general grounds on which an election may be invalidated or declared void”: Hudson v Lee (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour’s reasons for reaching this conclusion were “persuasive” but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210], 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it hasbeen observed that a submission proceeding “from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void … may very well be stated too broadly”: McClure v Australian Electoral Commission [1999] HCA 31 at [25], 163 ALR 734 at 740 per Hayne J.
54 It is respectfully considered, however, that the conclusion and reasons of Gaudron J remainpersuasive. A characterisation of the conduct of the Corporation as a breach of a duty of impartiality rather than as an “illegal practice” is not a characterisation which can be employed to escape the constraints imposed by s 362(3).
55 Moreover, inherent in the contention of the Petitioner is perhaps the further contention that the Corporation owed a duty to extend to him greater publicity than he maintains he received. But there is no such duty. In McClure v Australian Electoral Commission [1999] HCA 31, 163 ALR 734 at 740 to 741, Hayne J concluded:
[26] … the petitioner makes essentially two complaints: the first about media coverage (or the lack of it) and the second about the “above the line” voting system. I deal with them in turn.
[27] The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral process. As counsel for the respondent pointed out, much of this part of the petition is copied from the report of the argument of Sir Maurice Byers QC in Australian Capital Television Pty Ltd v The Commonwealth [(1992) 177 CLR 106 at 109 to 113]. Central to the petitioner’s case in this respect is the assertion in his petition that representative and responsible government:
requires that every person and every political candidate have the entitlement to make his or her views known on political issues not only between elections but also especially during election campaigns. It requires that all political candidates have an equal opportunity to be elected and that the voting process should unfairly disadvantage no political candidate.
That assertion must then be understood in light of other provisions of the petition in which it is made plain that the conduct of which complaint is made is the decision of persons associated with radio or television stations not to give coverage to the petitioner’s platform or press releases.
[28] The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication [Lange v Australian Broadcasting Corporation (1997) 189 CLR 520]. The petitioner’s case depends upon him having some right to require others to disseminate his views. But as was said by the court in Lange v Australian Broadcasting Corporation [(1997) 189 CLR 520 at 560]:
“ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous [Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 168. See also at 146 to 148], they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”. In Cunliffe v Commonwealth [(1994) 182 CLR 272 at 326], Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said [(1994) 182 CLR 272 at 327]:
‘The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.’”
The Relief Claimed — Orders 1 and 2
56 The petition as filed fails to comply with s 355(a) and the relief as sought in the Corporation’s summons should thus be granted. Nor does it comply with s 355(aa). No occasion therefore arises to consider what relief may otherwise have been available to the Petitioner had he filed a petition which complied with s 355(a).
57 But it may be of importance for the Petitioner to know that orders 1 and 2 as sought in his petition would not have been made even had he complied with what he may wrongly perceive to be the “technical” requirements imposed by s 355.
58 The “powers” that are conferred upon the Court of Disputed Returns are those set forth in s 360. The express statement in s 360(1) that these powers are to “include” those thereafter set forth necessarily has the consequence that the powers expressly set forth are not an exhaustive statement of the powers of this Court.
59 But, whatever may be the other powers that the Court may have, it is not considered that it has power to make such orders as are sought in the petition in orders (1) and (2). In McClure v Australian Electoral Commission [1999] HCA 31, 163 ALR 734 at 736 to 737, Hayne J made the following observations when declining like relief:
The petition
[10] In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election [ss 211 and 211A], and what has become known as voting above or below the line [s 209(1)]. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected.
…
The claims for relief other than avoidance of the election
[12] The petitioner says, at the start of his petition, that he is not a lawyer and asks the Court to give him whatever assistance is necessary to ensure “the lawful and democratic conclusion” of the matter. But even giving the most generous construction to his petition, it is plain that much of the relief sought is relief of a kind that cannot be given.
…
The publicity claim
[17] Itis not clear what the petitioner means when he says that the Court should “informally instruct” the chiefs of staff of media bodies about how they should act in the future. If he seeks to have the Court give some advice to these persons, it is enough to say that this is not the Court’s function. If he seeks to have the Court make some order about future conduct, there is no basis in the Act for concluding that the Court has any power to do so. There being no power to do so, the further questions that might then have arisen about framing an order with sufficient certainty need not be considered. The relief claimed cannot be given.
This decision has since been applied to decline like relief in Gunter v Hollingworth [2002] FCA 943 at [44] per Cooper J.
60 Order 3 stands in a different position. The order as sought is an order “that the election be declared null and void”, namely the election to which the petition relates — the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission (1993) 178 CLR 34; Pavlekovich-Smith v Australian Electoral Commission (1993) 115 ALR 641; Robertson v Australian Electoral Commission (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997)44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.
61 But non-compliance with s 355(a) has the consequence that no occasion arises for the grant of any relief.
Conclusions
62 The petition fails to set out any facts upon which the by-election in Lyne as held on 6 September 2008 could be declared void. Nor are any facts set out upon which any view can be formed as to the likely effect of any contravention of any Act upon the result of that by-election. The outstanding request for the production by the Corporation of further documents cannot cure the failure of the Petitioner to comply with s 355(a) of the 1918 Act. The orders as sought in orders (1) and (2) of the petition cannot be made. And there is no basis upon which order (3) can be made.
63 Those deficiencies cannot now be remedied.
64 As such, the petition is bound to fail. It does not disclose any claim that has any reasonable prospects of success. It should be dismissed.
65 There is no reason why the normal approach should not be followed in respect to the costs incurred by the Corporation. Costs should follow the event. Nor is there any reason why the Commission should not also be entitled to its costs. The Commission was given leave to intervene pursuant to s 359 and, by virtue of that provision, it “shall be deemed to be a party respondent to the petition”. It properly pursued a role in the proceeding greater than that of merely making “appropriate reference to the Act and to authority in order to assist the Court to determine a petition”. The course of oral submissions advanced by the Commission during the hearing of the relief sought by the Corporation in its summons did not prolong the hearing and provided assistance to the Court additional to that provided by the Corporation. All submissions were heard within the course of a day. The Commission too should be entitled to its costs.
ORDERS
66 The Orders of the Court are:
1. The petition as filed on 3 November 2008 in the High Court of Australia, sitting as the Court of Disputed Returns, is dismissed.
2. The Petitioner is to pay the costs of the Second Respondent.
3. The Petitioner is to pay the costs of the Third Respondent.
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I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
Associate:
Dated: 15 May 2009
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The Petitioner |
The Petitioner appeared in person. |
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Counsel for the Second Respondent: |
Ms E Raper |
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Solicitor for the Second Respondent: |
ABC Legal Services |
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Counsel for the Third Respondent |
Ms M Perry QC |
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Solicitor for the Third Respondent |
Australian Government Solicitor |
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Date of Hearing: |
30 April 2009 |
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Date of Judgment: |
15 May 2009 |
