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. The legislative context 4 Section 212(a) of the Act provides: "In printing the ballot-papers to be used in a House of Representatives election: (a) the order of the names of the candidates in the ballot-papers shall be determined by the Divisional Returning Officer in accordance with section 213;" Section 213(1) sets out how the order of names on the ballot paper is determined. It provides an elaborate procedure to ensure fairness in a process which was described by Gibbs CJ in McKenzie v Commonwealth (1984) 57 ALR 747 at 748 as a determination "in effect by lot". Section 213(1) provides: "(1) Where under section 210 or 212 a person is required to determine in accordance with this section the order of the names of candidates or of groups in ballot-papers to be used in an election: (a) the person shall, at the declaration time for the election, at the place where nominations for the election were publicly produced and before all persons present at that place: (i) prepare a list of the names or groups, as the case may be, in such order as the person considers appropriate; (ii) read out that list; (iii) place a number of balls equal to the number of candidates or groups, as the case may be, being balls of equal size and weight and each of which is marked with a different number, in a spherical container large enough to allow all the balls in it to move about freely when it is rotated; (iv) rotate the container and permit any other person present who wishes to do so to rotate the container; (v) cause a person who is blindfolded and has been blindfolded since before the rotation of the container in accordance with subparagraph (iv) to take the balls, or cause the balls to come, out of the container one by one and, as each ball is taken or comes out, to pass it to another person who shall call out the number on the ball; (vi) as each number is called out in accordance with subparagraph (v), write the number opposite to a name or group, as the case may be, in the list prepared in accordance with subparagraph (i) so that the number called out first is opposite to the first name or group, as the case may be, in the list and the subsequent order of the numbers in the list is the order in which they are called out; (vii) place all the balls back in the container; (viii) rotate the container and permit any other person present who wishes to do so to rotate the container; (ix) cause a person who is blindfolded and has been blindfolded since before the rotation of the container in accordance with subparagraph (viii) to take the balls, or cause the balls to come, out of the container one by one and, as each ball is taken or comes out, to pass it to another person who shall call out the number on the ball; (x) prepare a list of the numbers called out in accordance with subparagraph (ix) set out in the order in which they were called out in accordance with subparagraph (ix); and (xi) write on the list prepared in accordance with subparagraph (x) opposite to each number the name or group, as the case may be, set out opposite to that number in the list prepared in accordance with subparagraph (i); and (b) the order in which the names or groups, as the case may be, are set out in the list prepared in accordance with subparagraph (a)(x) is the order of the names or groups, as the case may be, determined by the person under this section." Lack of Compliance with s 213(1) 5 The procedure provided for in s 213(1)(a) was complied with, in the instant case, up until the requirement contained in s 213(1)(a)(ix). There is a dispute on the evidence about when precisely the irregularity occurred in the conduct of the subsequent draw which was carried out to give effect to the requirements of s 213(1)(a)(vii) to (xi) of the Act. 6 At its highest, Mr Assaf's case is that when the draw for the seventh position occurred the eighth ball dropped out of the container. At its lowest, the case for Mr Assaf is that the missing ball was not in the container when the third last ball was drawn. This is what the AEC contends and what I consider to be the most reliable account of events from its perspective. However, as the conflict in the evidence is immaterial, the court is prepared to accept the applicant's evidence that the draw was regularly conducted up to and including the removal of the sixth ball (out of 8 present) from the container to determine the order of names on the ballot paper. It is not in dispute that after the second last ball was drawn from the container the last ball should have been in the container but had dropped out onto the floor of the AEC's office, at some earlier time. Consideration 7 As the procedure provided for in s 213(1) miscarried, the AEC was correct to conduct a re-draw so as to enable the requirements of s 213(1)(a)(vii) to (xi) to be regularly carried out. The requirements of s 213(1)(a) evidence a purpose that an act done in breach of any of them renders the entire process invalid: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], per McHugh, Gummow, Kirby and Hayne JJ. 8 Section 212(a), when read with s 213(1), reveals a legislative intention that a precise, transparent, process be followed to the letter so that there can be no suggestion that any particular candidate has received favourable or unfavourable treatment and also to attempt to ensure fairness as between all candidates. The process is an entire one, such that a failure to complete any one of the prescribed steps will result in a failure to determine the orderof names. The Divisional Returning Officer remains under a duty to determine the order of names strictly in accordance with s 213(1); see Minister for Immigration and Multicultural Affairs v Bhardwaj (2001) 209 CLR 597 at [14], per Gleeson CJ and [53] per Gaudron and Gummow JJ. The duty persists until it is perfected. Conclusion and Order 9 The Divisional Returning Officer was correct to conduct a re-draw for positions on the ballot paper when it was discovered that an irregularity had occurred in the first attempt to do so. As the initial attempt miscarried, the duty to carry out the process properly was not fulfilled until a regular draw was effected. 10 Mr Assaf's bad luck at "losing" the number 1 position on the re-draw, unfortunately for him, cannot result, in law, in a situation where he keeps that position while a re-draw is conducted for the last two or three positions. This in effect is what his counsel urged the Court to do by way of order. Once the process is tainted, the only fair and legally sound action to take was that taken by the Divisional Returning Officer. 11 For the above reasons the Court ordered that the application be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 22 September 2004 Counsel for the Applicant: Ms C Cunliffe Solicitor for the Applicant: Norton White Counsel for the Respondent: Mr P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 September 2004 Date of Judgment: 22 September 2004