Assaf v Australian Electoral Commission [2004] FCA 1239

FEDERAL COURT OF AUSTRALIA

Assaf v Australian Electoral Commission [2004] FCA 1239

ADMINISTRATIVE LAW – application for review of decision of the Australian Electoral Commission – whether Australian Electoral Commission erred in effecting a full re-draw following an irregularity in the procedure set out in s 213(1) of the Commonwealth Electoral Act 1918(Cth) – application dismissed Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Judiciary Act 1903 (Cth) s 39B(1) and s 39B(1A) Commonwealth Electoral Act 1918 (Cth) s 212 and s 213(1) McKenzie v Commonwealth (1984) 57 ALR 747, referred to

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj (2001) 209 CLR 597, referred to

WAJDE ASSAF v AUSTRALIAN ELECTORAL COMMISSION V 1153 OF 2004 MARSHALL J 22 SEPTEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1153 OF 2004

BETWEEN: WAJDE ASSAF

APPLICANT

AND: AUSTRALIAN ELECTORAL COMMISSION

RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 18 SEPTEMBER 2004

WHERE MADE: MELBOURNE

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

VICTORIA DISTRICT REGISTRY V 1153 OF 2004

BETWEEN: WAJDE ASSAF

APPLICANT

AND: AUSTRALIAN ELECTORAL COMMISSION

RESPONDENT

JUDGE: MARSHALL J

DATE: 22 SEPTEMBER 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 18 September 2004 the Court announced, at the end of the submissions of counsel in the proceeding, that it would order that the application be dismissed. That order was made. No order was requested or made concerning costs. What follows are the reasons of the Court for dismissing the application. 2 On 17 September 2004 the applicant, Mr Assaf, applied pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) to review a decision made by the respondent Australian Electoral Commission ("the AEC") under s 213 of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). 3 Mr Assaf is a candidate for election for the House of Representatives in the current federal election for the seat of Gellibrand. He attended the offices of the AEC in the division of Gellibrand to observe the draw for positions on the ballot paper at 12 noon on 17 September 2004. When the draw commenced Mr Assaf was, no doubt, delighted to observe that he had drawn the number 1 position on the ballot paper. However, due to an irregularity which occurred during the later stage of the draw, the relevant official of the AEC (the Divisional Returning Officer for the division of Gellibrand) determined to effect a re-draw. On the re-draw, Mr Assaf drew the number 3 position. Understandably he felt aggrieved and challenged the AEC's actions in allowing a full re-draw, rather than a re-draw for the last two positions on the ballot paper.