Hudson v Entsch [2005] FCA 300

FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 300 ANTHONY JOSEPH HUDSON v THE HONOURABLE WARREN ENTSCH MP AND AUSTRALIAN ELECTORAL COMMISSION QUD 46 OF 2005 DOWSETT J 14 MARCH 2005 CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS

ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: ANTHONY JOSEPH HUDSON

PETITIONER

AND: THE HONOURABLE WARREN ENTSCH MP

FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 14 MARCH 2005

WHERE MADE: CAIRNS

THE COURT ORDERS THAT: 1. Paragraphs 1-8 of the petition filed 18 February 2005 be struck out; 2. Paragraphs 12-31 of the petition filed 18 February 2005 be struck out; 2. Further proceedings in connection with the petition filed on 18 February 2005 be limited to pars 9-11 thereof. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS

ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: ANTHONY JOSEPH HUDSON

PETITIONER

AND: THE HONOURABLE WARREN ENTSCH MP

FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE: 14 MARCH 2005

PLACE: CAIRNS

REASONS FOR JUDGMENT 1 At the election held on 9 October 2004, the first respondent was the successful candidate in the electoral division of Leichhardt. The petitioner was entitled to vote in that division. The relevant writ was returned on 11 November 2004. By petition filed in the High Court on 2 December 2004, the petitioner sought an order to the effect that the first respondent had not been duly elected and that his election should be declared void. By summons filed on 10 January 2005, the second respondent sought leave to appear and other relief, including remitter to this Court and dismissal of the petition. On 7 February 2005, the matter was remitted to this Court. I have, today, heard the application for dismissal of the petition. Counsel for the second respondent submitted, in effect, that the petition did not allege grounds which were capable of leading to the relief sought and/or that it did not comply with s 355 of the Commonwealth Electoral Act 1918 (Cth) (the "Electoral Act"). I have concluded that a substantial part of the petition must be struck out. That, of course, will narrow the issues for determination at the hearing. I will not give detailed reasons for my views. If necessary, I will do so at a later stage. 2 Section 355 of the Electoral Act provides relevantly: '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.' 3 Subsections 358(2) and (3) provide: '(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.' 4 For the purpose of measuring the extent to which the petition complies with pars 355(a) and (aa), I adopt the observations made by Dawson J in Sykes v The Australian Electoral Commission (1993) 115 ALR 645, especially at 648 - 649 as follows: 'The statement of the facts relied on to invalidate the election which para (a) of s 355 requires cannot be amended if, as is the case here, more than 40 days have elapsed since the return of the writ for the election. Otherwise the amendment would in effect evade s 355(e) which requires the petition to be filed within that time. 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 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.' 5 The petition raises a number of distinct allegations. Paragraphs 1-8 deal with certain electoral signs which were erected by the petitioner and, as he alleges, removed without his authorisation. Paragraphs 9-11 allege that the first respondent made certain statements on television and implies that as a result, other signs were knocked down. Paragraphs 12-20 deal with difficulties which the petitioner experienced in having new signs printed. Paragraphs 21 and 22 deal with two discrete incidents. Paragraphs 23-31 allege that the first respondent threatened another candidate for election with a view to causing her to withdraw her nomination. Each of these matters must be dealt with separately. Each set of allegations must be measured against the test prescribed by Dawson J in Sykes. 6 Pursuant to subs 360(3), the Court of Disputed Returns (the High Court or, for present purposes, this Court) may invalidate an election on the ground that illegal practices were committed in connection with it. An "illegal practice" is a contravention of the Electoral Act or regulations made thereunder. (See s 352.) 7 Section 362 of the Electoral Act provides: '(1) 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. (2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice. (3) 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. (4) 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 of the Radiocommunications Act 1992. 8 The terms "bribery" and "corruption" both mean "a contravention of s 326". (See s 352.) Section 326 provides as follows: 'Bribery (1) A person shall not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain, any property or benefit of any kind, whether for the same or any other person, on an understanding that: (a) any vote of the first-mentioned person; (b) any candidature of the first-mentioned person; (c) any support of, or opposition to, a candidate, a group of candidates or a political party by the first-mentioned person; (d) the doing of any act or thing by the first-mentioned person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or (e) the order in which the names of candidates nominated for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper; will, in any manner, be influenced or affected. Penalty: $5,000 or imprisonment for 2 years, or both. (2) A person shall not, with the intention of influencing or affecting: (a) any vote of another person; (b) any candidature of another person; or (c) any support of, or opposition to, a candidate, a group of candidates or a political party by another person; (d) the doing of any act or thing by another person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in the vote of an elector; or (e) the order in which the names of candidates for election to the Senate whose names are included in a group in accordance with section 168 appear on a ballot paper; give or confer, or promise or offer to give or confer, any property or benefit of any kind to that other person or to a third person. Penalty: $5,000 or imprisonment for 2 years, or both. (3) This section does not apply in relation to a declaration of public policy or a promise of public action.' 9 The expression "undue influence" means 'a contravention of s 327 of [the Electoral Act]' or s 28 of the Crimes Act 1914 (Cth) (the "Crimes Act"). (See s 352.) Section 327 of the Electoral Act provides: '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.' 10 Section 28 of the Crimes Act provides: '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.' 11 Subsection 362(1) mandates avoidance of an election in the event that the successful candidate has committed or attempted to commit bribery or used or attempted to use undue influence. Subsection 362(3) provides that certain conduct is not to lead to that result unless the Court is satisfied that: