I # Attention: Judgments Clerk With the Complements of Ms Justice RE Coser Herewith copy judgment and disk containing judgment in the matter of Mam v. Delaney QG32 of 1994, This judgment was delivered today 21.10.94 by Cooper J. in Brisbane. . 1 dL JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA 119 NORTH QUAY BRISBANE 4000 AUSTRALIA JUDGMENT No. swmmne ld cat bony CATCHWORDS Elections - Zone election held under the Abonginal and Torres Strait Islander Commission Act 1989 - whether election failed within the meaning of the Zone Election Rules - whether conduct of electoral officer constituted an "uUlegal practice" within the meaning of the Act - whether candidate duly elected as returned. Statutory Interpretation - Words in the singular to include words in the plural - whether contrary intention apparent from the Act. Practice and procedure - Joinder of parties - whether a necessary or desirable party for the resolution of the proceedings - power in the court to allow a party to intervene. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Sections 131, 132, 133, 136, 137, 138, 139, 140; Schedule 3 clauses 1 - 3; Schedule 4 clauses 1, 2, 10 and 12. Zone Election Rules Rule 14 Zone Election Rules (Amendment No, 2) Rule 35A Acts Interpretation Act 1901 (Cth) Sections 13(2), 23(b) Federal Court Rules Order 6, rules 2(b), 3, 8; Order 70 rule 2(4) Blue Metal Industries Lid. v, Dilley (1969) 117 CLR 651 No. 0G 32 of 1994 Cooper J., Brisbane, 21 October, 1994 TUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 21 October, 1994 MINUTES OF ORDER THE COURT ORDERS THAT the application of Mr. S. Watson to be joined as a party to the proceedings be dismissed. THE COURT DECLARES THAT Ian Delaney was not duly elected as the Tepresentative for the Queensland (Metropolitan) Zone. THE COURT DIRECTS THAT: (a) The Australian Electoral Commission by an authorised electoral officer re- commence the scrutiny of votes cast in the poll for the election of a zone representative for the Queensland (Metropolitan) Zone. (b) 'In conducting the scrutiny where two or more candidates have an equal number of votes and each has received the fewest first preference votes, those candidates are to be excluded and each of those candidates' ballot papers are to be transferred to the unexcluded candidate for whom the next available preference is expressed. (c) If, after the allocation of preferences in accordance with paragraph (b) above, no candidate has an absolute majority of votes, the process of excluding the candidate or candidates (if more than one with an equal number of votes) with the fewest votes and the transferring of each of that candidate's or those candidates' ballot papers to the unexcluded candidates for whom the next available preferences are expressed, is to be continued until one candidate receives an absolute majonty of the votes. 4. THE COURT FURTHER DECLARES THAT if, after the distribution of all preferences in accordance with paragraphs 3(b) and 3(c) above, no candidate receives an absolute majority of votes, no candidate is elected or entitled to be returned as elected as the representative for the Queensland (Metropolitan) Zone the election fails in terms of Rule 14 of the Zone Election Rules. 5. THE COURT DIRECTS THAT if, after the allocanon of preferences in accordance with paragraphs 3(b) and 3(c) above, the zone election fails because no candidate is eligible to be returned as elected :- (a) The notices provided for in Rule 15 of the Zone Elecnon Rules be given; (b) A supplementary election to elect a zone representative for the Queensland (Metropolitan) Zone be held. Note; Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. CORAM: Cooper J. PLACE: Brisbane DATE: 21 October, 1994 REASONS FOR JUDGMENT The petitioner, Tomasina Anna May Mam, petitioned the court pursuant to clause 2(1) of Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the Act") for certain orders in relation to an election under section 131 of the Act for a representative for the Queensland (Metropolitan) Zone. Ms. Mam was a candidate for the election. The candidates for election in addition to Ms. Mam were :- Rudy Sandy Norman Fisher Beryl Wharton Mary Graham Herbert Bligh lan Delaney Sam Watson 2. On 8 February, 1994 Ian Delaney was declared by David John Phillips, an authorised electoral officer of the Australian Electoral Commission, elected as the zone representative. Mr. Phillips certified on his return that a distmbution of preferences was necessary to determine the election. Mr. Delaney was named as a respondent to the petition and appeared on the hearing of it. The Australian Electoral Commission ("the Commission") was granted leave to appear on the petition. After the conclusion of the original hearing, Mr. S. Watson sought leave to be joined as a party to the original petition and to be heard. Neither the petitioner nor Mr. Delaney objected to Mr. Watson being joined as a party and being given the opportunity to make submissions as to what course the court ought to take on the petition. However, the Commission opposed leave being granted. Without formally ruling on the application, Mr. Watson was given the opportunity to make substantive submissions by his counsel on the issues raised in the petition. As the opposition to Mr. Watson's application to be joined as a party was maintained by the Commussion it is necessary that it be dealt with 1n these reasons. Mr. Watson is not a necessary party to the proceedings. He wishes to be joined in order to make submissions on the substantive issues raised on the petition and as to the nature of the relief, if any, to be granted. He does not seek to intervene to vindicate any private right or any right held jointly with the petitioner. His failure to petition in accordance with the terms of clause 2 of Schedule 4 of the Act and Order 70 of the Federal Court Rules and to comply with the pre-conditions contained in the said 3. schedule and Rule of Court had the consequence that he has no mght under the Act to seek relief in respect of the zone election in this court. Further, no order which may be made on the petition will interfere in any way with a personal right or interest of Mr. Watson, although he may indirectly benefit if the petitioner succeeds, and, no relief is sought by the petitioner, or any other party, against him. No allegation 1s made against him in the proceeding the determination of which could adversely affect his reputation or any right or interest he holds, and in this sense his presence is neither necessary nor desirable as a party. Accordingly, no basis for joinder has been made out under Order 6 rule 2(b), rule 3, or rule 8 of the Federal Court Rules. Mr. Watson by his counsel further submits that the court has power to order his joinder as a respondent under Order 70 rule 2(4) of the Federal Court Rules. That rule provides :- "2(4) At the directions hearing the Court shall give such directions as are necessary or desirable for the further hearing of the petition including directions as to the joinder of any further parties as respondents and the giving of notice of the proceedings to them." The directions heanng there referred to 1s the initial directions hearing endorsed on the petition in accordance with Order 70 rule 2(2)(0). The power under Order 70 rule 2(4) so far as the joinder of parties is concerned, is to identify whether it is necessary or desirable for the proper adjudication of the matters raised in the petition to order the joinder of persons as respondents beyond those parties named as respondents in the petition itself by the petitioner. The same considerations which would deny joinder under Order 6 apply to deny joinder under Order 70 rule 2(4). It is unnecessary to 4, decide whether the power contained in Order 70 rule 2(4) may be exercised at any time later than the initial directions hearing or any adjournment thereof. There 1s no inherent power in the court to allow for Mr. Watson to intervene (Corporate Affairs Commussion v. Bradley [1974] 1 NSWLR 391 at 397-398) and no power under the Federal Court of Australia Act 1976 (Cth) or the Federal Court Rules to allow Mr. Watson to seek to intervene or become a party (other than Order 6 and Order 70) has been referred to by his counsel. The court may of course hear submissions from any person as an amicus curiae to the court. Such a person is not a party and has no nghts in the proceedings. The court has had the benefit of argument from Mr. Watson's counsel on the substantive issues and to that extent Mr. Watson has achieved what he sought by Joinder. The application for joinder is dismissed. The petitioner seeks the following orders :- 1. A declaration that the respondent Mr. Delaney was not duly elected; 2. A declaration that the petitioner was duly elected; 3. In the alternative, directions as to the manner in which the allocation of preferences are to take place; 4. In the alternative, a declaration that the election failed and/or was absolutely void; 5. Such further or other orders as are appropriate; 6. Costs. The parties filed an agreed statement of facts. The relevant facts for present purposes are :- 1. On 20 January, 1994 the Minister for Abonginal and Torres Strait Islander Affairs ("the Minister") fixed by written notice 8 February, 1994 as the day for the close of the poll for the election for a zone representative to be held pursuant to the Act. 2. The petitioner and the seven other persons named above nominated for election as zone representative. 3. A total of twenty (20) votes were cast at the election on 8 February, 1994, 4. Mr. Phillips courted the votes for the purpose of ascertaining the result of the poll. 5. The first preference votes marked on the ballot papers were as foliows :- Sandy 3 Fisher 1 Wharton 1 Graham 3 Bligh 1 Delaney 3 Watson 2 Mam 6 6. No candidate having received an absolute majority of first preference votes, 10. 6. Mr. Phillips proceeded to exclude the candidate with the fewest first preference votes. As Mr. Fisher, Ms. Wharton and Mr. Bligh each had only one (1) first preference vote, Mr. Phillips, by drawing lots as between these three candidates, determined that Mr. Bligh should be excluded. Upon Mr. Bligh being excluded, there being no next preference, his vote was exhausted and there remained no candidate with an absolute majority of votes. Thereupon, Mr. Phillips proceeded to exclude the candidate with the fewest votes, and as between Mr. Fisher and Ms. Wharton, each holding one (1) vote, proceeded by drawing lots to exclude Ms. Wharton. Mr. Phillips, after the exclusion of Ms. Wharton, transferred her vote to Mr. Watson. However, after distribution of the vote no candidate obtained an absolute majority of the votes. Mr. Phillips proceeded to exclude the candidate with the fewest votes, namely Mr. Fisher. His vote was transferred to Mr. Sandy with the result that the progressive votes were as follows :- Sandy 4 Graham 3 Delaney 3 Watson 3 Mam 6 As no candidate had obtained an absolute majonty, Mr. Phillips proceeded to exclude the candidate with the fewest votes and as between Ms. Graham, Il. 12. 13. 14, 15. 7. Mr, Delaney and Mr. Watson, each of whom had three (3) votes by drawing lots, excluded Mr. Watson. On the exclusion of Mr. Watson, two (2) votes remained for transfer, the other having been exhausted. The available votes were distributed as to one (1) to Graham and one (1) to Delaney. However, after distribution of the votes no candidate obtained an absolute majority of the votes. Mr. Phillips proceeded to exclude the candidate with the fewest votes. As between Mr. Sandy, Ms. Graham and Mr. Delaney, each of whom had four (4) votes, Mr. Phillips, by drawing lots, excluded Mr. Sandy. Upon the exclusion of Mr. Sandy and the distribution of his votes, the progressive total was :- Graham Delaney Mam DAr~an In the absence of any candidate receiving an absolute majority of votes, Mr. Phillips proceeded to exclude Ms. Graham as the candidate with the fewest votes and to allocate her votes two (2) as to Mr. Delaney and three (3) as to Ms. Mam. With Mr. Delaney and Ms. Mam having each received nine (9) votes, neither had received an absolute majority. 16. 17. the order of exclusion of candidates by the drawing of lots, and further that the 8. As between Mr. Delaney and Ms. Mam, Mr. Phillips determined by the drawing of lots that Mr. Delaney was elected. The votes of Ms. Mam were not distributed as Mr. Phillips determined that Mr. Delaney had attained an absolute majority. After the completion of the counting of votes as set out above, Mr. Phillips declared Mr. Delaney elected as the zone representative for the Queensland (Metropolitan) Zone. The grounds upon which the petitioner relies in support of her petition are that there was no authority in the Act or otherwise for the determination of the election or fespondent, Mr. Delaney, did not obtain a majority of the votes as required by the Act. In consequence, the petitioner contends that the counting of the votes and the declaration of the election were void. The Act, insofar as the election of zone representatives 1s concerned, relevantly provides :- "131(1) The members of the Regional Councils of the regions included in a zone shall elect one of their number to represent the zone. (2) A person whose appointment as the Commissioner representing a zone has been terminated by the Minister: (a) under subsection 40(4) because of misbehaviour; or (b) —_ under section 41; is not eligible to stand for election at the next election under sub-section (1) for a person to represent the zone. 9. 132(1) Zone elections shall be conducted in accordance with : (a) the provisions of this Act; and (b) the zone election rules in force at the end of the election period in relation to the last round of Regional Council elections. (2) Subject to zone election rules made under section 138, zone elections shall be conducted by the Australian Electoral Commission. 133. Each round of zone elections shall be held as Soon as practicable, and in any case within 3 months, after the end of the election period in relation to a round of Regional Council elections. soeee 136(1) A voter shall cast a vote at a zone election by marking the ballot paper so as to show the order of the voter's preference for the candidates. (2) A ballot paper is formal if and only if : (a) the authorised electoral officer is satisfied that it is an authentic ballot paper; (b) _ it indicates the voter's first preference for one, and only one, candidate; and (c) it does not have upon it any identifying mark. (3) A ballot paper that is formal shall be given effect according to the voter's intention so far as that intention is clear. (4) In this section: 'identifying mark' means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper (whether or not in contravention of any law) by a person involved in conducting the election. 137. Votes cast at a zone election shall be counted, and candidates shall be elected, as provided in Schedule 3 and in the zone election rules. 10. 138(1) The Minster may, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, makes rules, not inconsistent with this Act, prescribing: (a) the manner in which zone elections are to be conducted; and (b) the manner in which casual vacancies among the elected Commissioners are to be filled. (2) The matters that may be dealt with in rules under subsection (1) include, but are not limited to, the following matters: (a) __ the nomination of candidates for election; (b) ballot papers and forms; (c) postal voting; (a) _ confidentiality of voting; (e) the performance of administrative duties in relation to elections by members of staff of the Aboriginal and torres Strait Islander Commission; tH) the scrutiny and counting of votes; (g) __ the declaration of the poll. (3) The rules may provide penalties for breaches of the rules not exceeding: (a) __ in the case of a natural person - $1,000; or (6) in the case of a body corporate - $5,000.00. (4) 'Where: (a) the rules create an offence in relation to zone elections that corresponds to an offence under the Commonwealth Electoral Act 1918 exceeds the penalty that, by subsection (3), could be imposed for a breach of the rules; the rules may provide a maximum penalty for the first- mentioned offence not exceeding the maximum pecuniary penalty for the corresponding offence under the Commonwealth Electoral Act 1918, but nothing in this subsection enables the rules to provide penalties of imprisonment. (5) Rules made by the Minister under subsection (1) are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 11. 139. A reference in a provision of this Division to an authorised electoral officer 1s a reference to: (a) an the case of a zone elecnon being conducted by the Australian Electoral Commission - a member of the staff of the Austrahan Electoral Commission designated by the Electoral Commissioner for the purposes of that provision and in relation to that zone election; or (b) in the case of a zone election being conducted by another person or body pursuant to a determination by the Minister under zone election rules made under paragraph 138(1)(b) - a person designated in the determination." Schedule 3 of the Act, so far as is relevant, provides :- "Absolute majority required for election l. A candidate needs an absolute majority of votes to be elected. Candidate with absolute majority of first preference votes elected 2. A candidate who receives an absulute majority of first Preference votes is elected. Distribution of preferences 3.(1) If there is no candidate who receives an absolute majority of first preference votes, the candidate who has received the fewest first preference votes shall be excluded, and each of that candidate's ballot papers shall be transferred to the unexcluded candidate for whom the next available preference is expressed. (2) If there is then no candidate who has an absolute majority of votes, the process of excluding the candidate who has the fewest votes, and transferring that candidate's ballot Papers to the unexcluded candidates for whom the next available preferences are expressed, shall be repeated as often as necessary until one candidate receives an absolute majority of votes. 12. (3) A candidate who receives an absolute majonty of votes at any stage of the process described in this clause ts elected. (4) — Without liminng the generality of section 138, the rules made by the Minister under that section may include provisions about: (a) the determination of an absolute majonty of votes; (b) the method of choosing between 2 or more candidates, each of whom has the same number of votes, in order to work out which candidate to exclude; and (c) determining when a ballot paper ts exhausted." The Minister at the date of the election had made no rules under section 138 for the purpose or of the type described in clause 3(4)(b) of Schedule 3 to the Act. The Minister did make the Zone Election Rules under section 138 of the Act which rules came into operation on 15 November, 1990. Those rules in part 3 deal with the conduct of the poll and in part 4 deal with the scrutiny. However, as I have Stated, the rules are silent as to any method to choose between candidates with equal votes to determine which candidate to exclude. The Zone Election Rules were amended by the Zone Election Rules (Amendment No, 1) which were gazetted in a Special Gazette No. S22 on 20 January, 1994. Those rules made no provision for choosing between candidates with equal votes for the purpose of excluding one of them from the count. By Special Gazette No. $113 of 30 March, 1994 the Minister made Zone Election Rules (Amendment No, 2). Rule 35A of the amendment provides :- 13. "35A. (1) If, at any stage during the count, a ballot paper expresses no preference for an unexcluded candidate, the ballot-paper must be set aside as exhausted. 2) if: (a) the number of first preference votes given to a candidate is more than half of the total number of jirst preference votes given to all candidates in the count; or (b) after an exclusion, the number of votes given to that candidate is more than half of the total number of votes given to all unexcluded candidates; the candidate has an absolute majority of votes and is elected. (3) Subject to subrules (6) to (11) (inclusive), if no candidate is elected in accordance with subrule (2), the candidate who received the fewest first preference votes is excluded and each of that candidate's ballot-papers must be transferred to the unexcluded candidate for whom the next available preference is expressed. (4) The process of excluding the candidate who has the fewest votes, and transferring the candidate's ballot-papers to the unexcluded candidates for whom the next available preferences are expressed, must be repeated as often as necessary until a candidate receives an absolute majority of votes. (5) A candidate who receives an absolute majority of the votes at any stage of the process described in subclauses (3) and (4) is elected. 6) If (a) 2 or more unexcluded candidates have the same number of votes; and (b) one of those candidates is required to be identified for exclusion; the authorised electoral officer must conduct an intermediate poll, involving only those candidates, in accordance with Parts 3 and 4 as if that poll were a poll to which those Parts apply. (7) 'If, after the intermediate poll, an unexcluded 14. candidate has fewer votes than any other unexcluded candidate in the intermediate poll, that candidate is excluded. (8) — If, after the intermediate poll: (a) 2 or more of the unexcluded candidates have the same number of votes; and (b) each of those candidates has fewer votes than any other unexcluded candidate in the intermediate poll; the authorised electoral officer must conduct a public draw of lots to determine which of the candidates referred to in paragraph (a) is excluded. 9 If: (a) 2 unexcluded candidates have the same nwnber of votes; and (b) there are no other unexcluded candidates; the authorised electoral officer must conduct an intermediate poll, involving the unexcluded candidates, in accordance with Parts 3 and 4 as if that poll were a poll to which those Parts apply. (10) If, after the intermediate poll referred to in subclause (9), an unexcluded candidate has more votes than the other canidate, the candidate with more votes is elected. (11) If, after the intermediate poll referred to in subclause (9), the unexcluded candidates have the same number of votes, the authonsed electoral officer must conduct a public draw of lots to determine which of the candidates is elected." The amendment to the Zone Electon Rules contained in the new Rule 35A took effect from 30 March, 1994 (Acts Interpretation Act 1901 (Cth), sections 46A and 48). Rule 35A had no relevant operation in the conduct of the zone election in issue. Indeed, amendment number 2 to the Zone Election Rules, including Rule 35A, did not come into existence until after the vote had been counted, the scrutiny completed and the respondent, Mr. Delaney, declared elected as the zone representative. 15. By secton 140 of the Act, the provisions of Schedule 4 to the Act apply where there is a dispute in relation to a Regional Council election or a zone election. Schedule 4 to the Act, so far as is relevant, provides certain pre-conditions to enliven the jurisdiction to try election petitions. I am satisfied that the requirements of clauses 3 and 4 of Schedule 4 have been satisfied by the petitioner as required by clause 6 of the Schedule. For present purposes, the powers of the court on the hearing of a petition are contained in clause 10 of Schedule 4, which provides as follows :- "10(1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers: (a) to adjourn the proceedings; (b) to compel the attendance of witnesses and the production of documents; (c) to grant to any party to the petition leave to inspect, in the presence of a person who was an authorised electoral officer for the purposes of Division 4 or 7 of Part 3 in relation to the election concerned, the documents (except ballot papers) used at or in connection with the election and to take, in the presence of the prescribed officer, extracts from those documents; (a) to examine witnesses on oath; (e) to declare that any person who was returned was not duly elected; () 'to declare any candidate duly elected who was not returned; (g) to declare the election absolutely void; (h) to dismiss or uphold the petition in whole or in part; @) to make any order, or give any direction, that the Court thinks is necessary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings; (k) to award costs; (m) to punish any contempt of its authority by fine or 16. imprisonment. (2) The Court may exercise all or any or [sic] its powers under this clause on such grounds as the Court in tts discretion thinks just and sufficient. (3) Without limiting the powers conferred by this clause, it is hereby declared that the power of the Court to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election. (4 The power of the Court under paragraph (1) (k) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so." Counsel for the petitioner and counsel for Mr. Delaney both submitted that the Act did not permit the exclusion of candidates as occurred by Mr. Phillips drawing lots. Additionally, they submitted that Mr. Delaney did not achieve an absolute majority of the votes. On either basis they submitted that the court should declare the election of Mr. Delaney void and further declare that the election has failed within the meaning of Rule 14 of the Zone Election Rules. That rule provides :- "14(1) Where an election fails a supplementary election is to be held. (2) Anelection is taken to have failed if: (a) _no candidate: fi) is nominated; or (ii) is returned as elected; or (b) a candidate dies after the declaration of nominations and before the close of the poll". The petitioner and Mr. Delaney by their respective counsel submitted that 17, once the return of Mr. Delaney 1s set aside, what 1s left is a scrutiny which cannot advance because the Act provides no mechanism to choose between Messrs. Fisher and Bligh and Ms. Wharton as to who shall be excluded from the ballot. If the scrutiny cannot proceed because of this impasse, it was submitted that the election would fail within the meaning of Rule 14 because no candidate would be returned elected (Rule 14(2)(a)(ii)). The effect of the failure of the election would be that a supplementary election would have to be held as required by Rule 14(1) of the Zone Election Rules. It was submitted that the court should now direct that a supplementary election be held. Mr. Watson by his counsel submitted that a fresh election ought to be directed for substantially the same reasons. The Commission by its counsel submitted that Mr. Phillips had returned Mr. Delaney as the candidate elected and that in consequence the election did not, and could not, fail within the meaning of Rule 14. However, the Commission submitted that the scrutiny was flawed because there was no power under the Act or at common law to allow Mr. Phillips to determine by drawing lots which of two or more candidates with equal votes was to be excluded from the ballot. Nor, it was submitted, did Mr. Delaney achieve an absolute majority of the votes as required by clause 1 of Schedule 3 to the Act. The Commission further submitted that because the scrutiny was not conducted in accordance with Schedule 3 as required by section 132(1) of the Act, the proper course was to exercise the power under clause 10(1)(e) of Schedule 4 to the Act to declare that Mr. Delaney was not duly elected. Thereafter, 1t was submitted the court ought to direct that the votes be recounted, and further direct that the exclusion of candidates from the 18. ballot be determined by the application of the provisions of the new Rule 35A as contained in the Zone Election Rules (Amendment No, 2). The petitioner, Mr. Delaney and Mr. Watson opposed such a course. They submitted that the discretionary power contained in clause 10(1)(j) of Schedule 4 to the Act, does not extend to requiring that the election be conducted in accordance with rules different to those in force at the end of the election period in relation to the last round of Regional Council elections. It was submitted that section 132(1)(b) of the Act which identified and fixed the rules under which the zone elections were to be conducted prevented the course contended for by the Commission. The discretionary power in clause 10(1)(j) did not authorise the court to require or direct that something be done where that act would be in conflict with an express provision of the Act. I agree with the parties that neither the Act, the rules contained in Schedule 3 to the Act, the Zone Election Rules, nor the common law, authorised the conduct of Mr. Phillips in resolving situations of equality of votes by drawing lots either to exclude candidates or to attempt to produce a candidate with an absolute majority of the votes. For that reason Mr, Delaney was not elected in accordance with the provisions of the Act and ought not to have been returned by Mr. Phillips as the zone representative. It was submitted by the Commission that Mr. Delaney was returned as the elected zone representative due to an error of an officer of the Commission as to the method to be used to give effect to the Act and Schedule 3 to it where both were silent as to how an equality of votes was to be resolved. That error, 1t was submitted, was not 19, conduct done in contravention of any spectfic provision of the Act, nor was it an omission to do some act required by the Act, Schedule 3 to it, or those Zone Election Rules. Accordingly it was submitted Mr. Delaney was not returned as elected as a result of any illegal practice within the meaning of clauses 1 and 12 of Schedule 4 to the Act. The assumption of Mr. Phillips and the Commission was, and is, that for the scrutiny to be conducted in accordance with the Act, Schedule 3 to the Act and the Zone Election Rules as they stood at the time of the election, it was necessary that some mechanism exist to choose between candidates with equal votes to determine which candidate ought to be excluded to enable a distribution of preferences under clause 3 of Schedule 3 to the Act. The Commission's submission that the votes ought now be counted and the scrutiny continued in accordance with the new Rule 35A reflects the maintenance of such an assumption in the thinking of the Commission. Whether or not the assumption is correct depends upon the proper construction of the Act and Schedule 3 to it. If, on the proper construction of the Act, the scrutiny can be taken to a conclusion, with the votes being counted and the preferences, if necessary, being distributed, without the need for a method of determining which candidate to exclude where both have received equal votes, Mr. Phillips will have failed to count the votes in accordance with the statutory provisions and will have acted contrary to the provisions of the Act and clause 3 of Schedule 3. In such circumstances, even though I accept that Mr. Phillips has throughout acted bona fide, the failure to use the required procedure to count the votes and to allocate preferences, and the use by him of a method contrary to that provided for by the Act and Schedule 3, would amount to a contravention of the Act and an "illegal practice" within the definition of clause 1 of 20. Schedule 3 (Sykes v, Australian Electoral Commission (1993) 115 ALR 645 at 652; Wasaga v. Tahal (1991) 33 FCR 438 at 447-448). If the conduct of Mr. Phillips does constitute an illegal practice, clause 12(3) of Schedule 4 to the Act applies. Under that sub-clause, the court is prohibited from declaring that any person returned was not duly elected or declaring any election void, on the ground of the illegal practice, unless the court is satisfied that the result of the election was likely to be affected and that it 1s just that the candidate should be declared not to be duly elected. On the hearing of the petition I was not satisfied that the assumption of the Commission was valid and invited the parties, and, Mr. Watson, by his counsel on his application to be joined, to address the court on why section 23(b) of the Acts Interpretation Act 1901 (Cth) as amended ("the Acts Interpretation Act") ought not apply. Section 23(b) provides :- "23. In any Act, unless the contrary intention appears: 0) words in the singular number include the plural and words in the plural number include the singular." In Blue Metal Industries Ltd. v. Dilley (1969) 117 CLR 651, Lord Morns of Borth-Y-Gest, in delivering the advice of the Pnvy Council, said (at 656) :- "By s.21 of the Interpretation Act, 1899 (N.S.W.) it ts enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima 21. facie tt can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a Section suggests an emphasis on Singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. it must be appropriate to consider the section in its Setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. (See Sin Poh Amalgamated (H.K.) Lid. v. Attorney-General of Hong Kong [1965] 1 W.L.R. 62). In that case a test was indicated which often may be helpful. In the judgment of the Board delivered by Lord Pearce it was satd : 'The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it' [1965] 1 W.L.R., at p.67." Applying this approach, is there anything which would indicate that it was intended by the drafter of clause 3 of Schedule 3 of the Act or the legislature that "the candidate who has received the fewest first preferences votes shall be excluded" should only be read in the singular and ought not be read in the plural to include all candidates who have received the same number of first preference votes where that number is the fewest first preference votes received? To read clause 3 of Schedule 3 to require the singular "candidate" to include the plural would have the consequence that Messrs. Fisher and Bligh and Ms. Wharton would be excluded and the ballot papers of each "must be transferred to the unexcluded candidate for whom the next available preference is expressed." As appears 22. from the agreed statement of facts, that distnbution would result in the scrutiny being advanced to the situation where the progressive total was: Sandy 4 Graham 3 Delaney 3 Watson 3 Mam 6 It is not possible on the agreed statement of facts to determine to whom the ballot papers of Ms. Graham and Messrs. Delaney and Watson would be transferred or whether they would have been spent at that stage. However, it is clear that Mr. Delaney would have been excluded and the result of the election would have been different. Also, on this construction of the Act and clause 3 of Schedule 3, the petitioner could not establish in these proceedings that she achieved an absolute majority of the votes cast. Therefore she would not be entitled to a declaration that she was duly elected. If Graham, Delaney and Watson were excluded and their votes, or some of them, transferred to Mr. Sandy and the petitioner or either of them, it would have resulted in one or the other achieving an absolute majority, or neither achieving an absolute majority because their votes were equal or individually less than an absolute majority of the votes, notwithstanding that one had more votes than the other. In the event that neither Mr. Sandy nor the petitioner achieved an absolute majority, neither would have been entitled to be returned as the elected zone representative and the election would then have failed in terms of Rule 14(2)(a)(ii) of the Zone Election Rules. In accordance with Rule 14(1), a supplementary election would have been held. The petitioner, Messrs. Delaney and Watson and the Commission submitted that a contrary intention to the operation of section 23(b) of the Acts Interpretation Act 23. appears from the Act and schedules to it. Counsel for the petitioner submitted that the existence of clause 3(4)(b) of Schedule 3 to the Act demonstrated a contrary intention. Clause 3(4) as a whole provides (a) (b) "3.(4) Without limiting the generality of section 138, the rules made by the Minister under that section may include provisions about: (a) _ the determination of an absolute majority of votes; (b) the method of choosing between 2 or more candidates, each of whom has the same number of votes, in order to work out which candidate to exclude; and (c) determining when a ballot paper is exhausted." Counsel for Mr. Delaney made the same submission and further submitted The use of the word "that" and the position of the apostrophe in the phrase "and each of that candidate's ballot papers" in clause 3(1) and the phrase "that candidate's ballot papers" in clause 3(2) demonstrate an intention that "the candidate", where it appears in those sub-clauses, was always to be read in the singular. The fact that rules were made by the Minister, including the new Rule 35A in Zone Election Rules (Amendment No, 2) to provide for the exclusion of one of a number of candidates holding the fewest votes and ultimately to resolve a tie by drawing lots, demonstrates that it was always intended Tules would be made, and thus clause 3 of Schedule 3 ought to be 24, construed so as to limit "candidate" to the singular number. (c) The ATSIC (Regional Councils - Election of Officeholders) Regulauons (Statutory Rules 1993 No. 374) notified in the Commonwealth of Australia Gazette on 31 December, 1993 in clause 5 of the Schedule to the regulations, makes provision for choosing between candidates with the same number of votes. Counsel for Mr. Watson submitted that the power contained in clause 3(4)(b) was intended to be used by the Minister and by administrative oversight had not been exercised. Thus, it was submitted it was not the intention that section 23(b) of the Acts Interpretation Act be given any relevant operation when interpreting clause 3(1) and (2) of Schedule 3. Additionally, it was submitted that clause 3(4)(b) would be superfluous if section 23(b) was given any operation. The Commission also relied upon the existence of clause 3(4)(b) of Schedule 3 to the Act as evidencing a contrary intention to the application of section 23(b) of the Acts Interpretation Act to clause 3(1) and (2) of the Schedule. It was submitted that the existence of clause 3(4)(b) demonstrated an intention that rules would be made to cater for the situation of a tied vote, and that the failure to make rules until Amendment No. 2 in March, 1994 was a mere omission on the part of the Minister. However, it was submitted that the intention to make rules demonstrated that section 23(b) of the Acts Interpretation Act was not intended to apply. Further, it was submitted that if section 23(b) of that Act did apply, it would render clause 3(4)(b) of Schedule 3 superfluous and 25. any rules made thereunder which resulted in one candidate being excluded would be invalid. This latter part of the submission was based on the contention that the rule- making power in section 138 of the Act was conditioned upon the rules not being inconsistent with the Act. Thus it was said if the operation of section 23(b) of the Acts Interpretation Act led to simultaneous exclusion of candidates with equal votes, any rule which resulted in only one of those candidates being excluded would be inconsistent with the Act and therefore invalid. The inconsistency argument of the Commission is totally misconceived. By section 13(2) of the Acts Interpretation Act the schedules to the Act are deemed to form part of it. Clause 3(4)(b) of Schedule 3 to the Act specifically authorises rules which provide for a method of excluding one of two or more candidates each of whom has the same number of votes. Such rules are specifically contemplated by the Act as being within the power of the Minister to make. They are therefore not inconsistent with the Act. Similarly, the Act envisages that if the power is exercised and rules are made pursuant to clause 3(4)(b), those rules will form part of the statutory framework applicable to the conduct of zone elections under the Act. In that case, because there is a specific rule providing for a method to choose a candidate to exclude from the ballot from two or more candidates with equal votes, there is no room for the operation of section 23(b) of the Acts Interpretation Act because the possibility of separate provision Tecognised by clause 3(4)(b) of Schedule 3 has become a reality. In my opinion the argument that clause 3(4)(b) of Schedule 3 would become superfluous if clause 3 is interpreted in accordance with section 23(b) of the Acts 26. Interpretanon Act is also without substance. Clause 3(4) of Schedule 3 to the Act 1s a permissive facilitative provision. It empowers the Minister to make specific rules of the type contemplated by the clause if the Minister 1s so minded. The provision is not one which, while empowering the Minister with the discretion to make such rules as the Minister deems appropriate, also creates a duty in the Minister to make the rules. The clause is not superfluous. It enables the Minister to determine a method to choose between candidates who have equal votes in order to exclude one from the vote where the Act and Schedule 3 to 1t made no provision requinng a choice to be made, nor provided any method for making such a choice. Clause 3(4) also enables the Minister to develop more complex and sophisticated methods of electing zone representatives over and above the system which would operate if clause 3(1) and (2) are construed in accordance with section 23(b) of the Acts Interpretation Act. Although it may be said that Rule 35A provides a sophisticated and extended process for ascertaining the wishes of the electors in a zone to determine which candidate ought to be excluded, that particular model is but one of many which might have been adopted by the Mimster Clause 3(4)(b) does not contemplate any particular model and the clause leaves it open to the Minister to choose a less sophisticated and blunter model as, for example, the model used in the ATSIC (Regional Councils - Election of Officeholders) Regulations, where exclusion 1s determined by lot without further voting. I do not accept that it is a correct approach to interpretation to start with the premise that the absence of relevant rules is the consequence of Ministerial oversight or default. The existence of clause 3(4)(b) recognises that the Act makes no provision in the absence of rules for choosing between candidates with equal numbers of votes. That 27. does not mean that the legislature intended that the Act should not operate until such rules were made or that every election should fail immediately an equality of votes occurred. The absence of rules providing a method to choose between candidates with equal votes at the relevant time means no more than that the statutory structure for the conduct of zone elections did not provide for such rules and the existing statute and rules fell to be interpreted on that basis. The existence of clause 3(4)(b) means no more than the Minister may, if the Minister so chooses, make specific rules which provide for a method of choosing between candidates with equal votes. There is nothing in the other arguments advanced which would persuade me that the context provides evidence of an intention to exclude the operation of section 23(b) of the Acts Interpretation Act. Is there anything in the operation of clause 3, interpreted in accordance with section 23(b) of the Acts Interpretation Act, which would indicate that such an interpretation was not intended by the drafter or the legislature? The operation of section 23(b) of the Acts Interpretation Act in interpreting clause 3 of Schedule 3 allows the scrutiny to be taken to a conclusion, it allows for the giving effect to second and subsequent preferences, and is consistent with the maintenance of the safeguard that to be elected one candidate must obtain an absolute majonty of the votes cast. If the scrutiny does not produce a candidate with such a level of popular support from the zone electorate, then the Act recognises that the election has failed and provides for a fresh election. 28. There 1s nothing in the operation of clauses 3(2) and 3(4), interpreted in accordance with section 23(b) of the Acts Interpretation Act, which would indicate an intention to exclude the operation of section 23(b). Rather, such an operation of the section would tend to support the conclusion that the clause was drafted on the basis that section 23(b) would apply until such time, if at all, the Minister chose to exercise the power under clause 3(4)(b) of the Schedule to provide specific rules to enable choices to be made between candidates with equal votes as part of the scrutiny. In my opinion clause 3 of Schedule 3 to the Act is to be interpreted by reference to section 23(b) of the Acts Interpretanon Act and the scrutiny conducted accordingly. Mr. Phillips did not conduct the scrutiny in the manner required by clause 3 of Schedule 3 interpreted in accordance with section 23(b) of the Acts Interpretation Act. In fact, he conducted the scrutiny in a way not authorised by the Act, Schedule 3 to it, or the Zone Election Rules and in a manner contrary to the statutory requirements. Section 132 of the Act requires that the election be conducted in accordance with Schedule 3. In the method used to conduct the scrutiny and in the return of Mr. Delaney as elected when he did not receive an absolute majority of the votes, Mr. Phillips acted in contravention of the Act. The conduct, although bona fide and in error, was an "illegal practice" within clause 1 of Schedule 4 of the Act. The conduct has resulted in Mr. Delaney being returned as the elected zone representative when he was not elected in accordance with the provisions of the Act. 29. In accordance with clause 12(3) of Schedule 4 to the Act, I am satisfied for the reasons set out earlier, that the result of the election was affected in that Mr. Delaney was returned as elected, whereas on a proper application of clause 3 of Schedule 3 Mr. Delaney would have been excluded from the ballot before the end of the scrutiny. I am satisfied that it is just that Mr. Delaney should be declared not to be duly elected as zone representative for the Queensland (Metropolitan) Zone. The election and the ballot are untainted by the conduct of Mr. Phillips. All that has occurred is that the scrutiny has miscarried. Therefore it is not appropriate that the election should be declared void. For the same reasons, there is no occasion to direct a fresh election be held. If such a course 1s required at the end of the scrutiny, then that follows from the operation of the Zone Election Rules and the Act themselves and not as a matter of the exercise of any of the powers contained in clause 10 of Schedule 4 to the Act. Likewise, section 132 operates to require the scrutiny to be conducted in accordance with the Zone Election Rules operative at the time of the election. Rule 35A of the present Zone Election Rules has no operation in relation to the election in issue. There 1s no warrant to direct under clause 10(j) of Schedule 4 to the Act that the scrutiny be conducted in accordance with Rule 35A even if, which I refrain from deciding, clause 10()) provided a source of power to make such a direction. The scrutiny should commence afresh and be conducted in accordance with the correct operation of clause 3 of Schedule 3 to the Act. Accordingly, I make the following order, declarations, and directions :- 1. THE COURT ORDERS THAT the application of Mr. S. Watson to be joined as 30. a party to the proceedings be dismissed. THE COURT DECLARES THAT Ian Delaney was not duly elected as the representative for the Queensland (Metropolitan) Zone. THE COURT DIRECTS THAT: (a) (b) (c) The Australian Electoral Commission by an authorised electoral officer re- commence the scrutiny of votes cast in the poll for the election of a zone representative for the Queensland (Metropolitan) Zone. In conducting the scrutiny where two or more candidates have an equal number of votes and each has received the fewest first preference votes, those candidates are to be excluded and each of those candidates' ballot papers are to be transferred to the unexcluded candidate for whom the next available preference is expressed. If, after the allocation of preferences in accordance with paragraph (b) above, no candidate has an absolute majority of votes, the process of excluding the candidate or candidates (if more than one with an equal number of votes) with the fewest votes and the transferring of each of that candidate's or those candidates' ballot papers to the unexcluded candidates for whom the next available preferences are expressed, 1s to be continued until one candidate receives an absolute majority of the votes. THE COURT FURTHER DECLARES THAT if, after the distribution of all preferences in accordance with paragraphs 3(b) and 3(c) above, no candidate receives an absolute majority of votes, no candidate is elected or entitled to be returned as elected as the representative for the Queensiand (Metropolitan) Zone the election fails in terms of Rule 14 of the Zone Election Rules. 31. 5. THE COURT DIRECTS THAT if, after the allocation of preferences in accordance with paragraphs 3(b) and 3(c) above, the zone election fails because no candidate 1s eligible to be returned as elected :- (a) The notices provided for in Rule 15 of the Zone Elechon Rules be given; (b) A supplementary election to elect a zone representative for the Queensland (Metropolitan) Zone be held. I will hear the parties on the question of costs. I certify that this and the preceding thirty (30) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 21 October, 1994 Kbuer K Mann Associate Counsel for the Petitioner: Mr. S. Kiem Solicitors for the Petitioner: Reidy & Tonkin Counsel for Applicant on Notice of Motion: Mr. D. Rangiah Solicitors for Applicant on Notice of Motion: Terry Fisher & Co. Counsel for the First Respondent to the Petition: Mr. P.E. Smith Solicitor for the First Respondent to the Petition: Neale Tobin, Solicitor Counsel for the Second Respondent to the Petition: Mr. M. Swan Solicitors for the Second Respondent to the Petition: Australian Government Solicitor Dates of Hearing: 26 May, 1994, 11 July, 1994 Place of Hearing: Brisbane Date of Judgment: 21 October, 1994