Benwell v Gray, Electoral Commissioner [1999] FCA 1532

FEDERAL COURT OF AUSTRALIA Benwell v Gray, Electoral Commissioner [1999] FCA 1532 INJUNCTION – Order sought requiring segregation of ballot-papers at referendum – complaint that Electoral Commissioner's Handbook misapplied the Referendum (Machinery Provisions) Act 1984 (Cth) – whether serious issue to be tried – balance of convenience Constitution, s 128 Referendum (Machinery Provisions) Act 1984 (Cth), ss 24, 89, 90, 92, 93, 97, 98, 100, 102, 142A Judiciary Act 1903 (Cth), s 39B(1) Kane v McClelland (1962) 111 CLR 518, followed Boland v Hughes (1988) 83 ALR 673, followed

PHILLIP BENWELL v WILFRED JAMES GRAY, ELECTORAL COMMISSIONER N 1258 OF 1999 JUDGE: SACKVILLE J DATE: 5 NOVEMBER 1999 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1258 OF 1999

BETWEEN: PHILLIP BENWELL

Applicant

AND: WILFRED JAMES GRAY, ELECTORAL COMMISSIONER

Respondent

JUDGE: SACKVILLE J

DATE OF ORDER: 5 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1258 OF 1999

BETWEEN: PHILLIP BENWELL

Applicant

AND: WILFRED JAMES GRAY, ELECTORAL COMMISSIONER

Respondent

JUDGE: SACKVILLE J

DATE: 5 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Proceedings 1 The applicant is the National Chairman of the Australian Monarchist League, an organisation which supports the retention of the Monarchy under the Constitution. He has instituted proceedings claiming relief in relation to the two proposed laws to be submitted to the referendum to be held on Saturday, 6 November 1999. The first is a proposed law "to alter the Constitution to establish the Commonwealth of Australia as a republic with a President chosen by a two-thirds majority of the members of the Commonwealth Parliament." The second is a proposed law "to alter the Constitution to insert a preamble." 2 The referendum questions to be put to the electorate on 6 November 1999 follow the form specified in Schedule 1 to the Referendum (Machinery Provisions) Act 1984 (Cth) ("Referendum Act"). The questions are as follows: "DIRECTIONS TO VOTER Write Yes or No in the space provided opposite the question set out below A PROPOSED LAW: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and the Governor-.General being replaced by a two-thirds majority of the members of the Commonwealth Parliament.