FEDERAL COURT OF AUSTRALIA Wheeley v The Australian Electoral Commissioner [2005] FCA 473 Statutes Commonwealth Electoral Act 1918 ss 221(2), 355, 358, 240 Cases Gunter v Hollingworth [2002] FCA 943 Followed Langer v Commonwealth (1996) 186 CLR 302 Cited Muldowney v Australian Electoral Commission (1993) 178 CLR 34 Applied Robertson v Australian Electoral Commission (1993) 116 ALR 407 Cited Sykes v Australian Electoral Commission (1993) 115 ALR 645 Applied DARRYL WHEELEY v THE AUSTRALIAN ELECTORAL COMMISSIONER, THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND, GARY HARDGRAVE, JAMES STEWART, and AUSTRALIAN ELECTORAL COMMISSION QUD 45 OF 2005 KIEFEL J BRISBANE 21 APRIL 2005 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 45 OF 2005 SITTING AS THE COURT OF DISPUTED RETURNS BETWEEN: DARRYL WHEELEY PETITIONER AND: THE AUSTRALIAN ELECTORAL COMMISSIONER FIRST RESPONDENT THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND SECOND RESPONDENT GARY HARDGRAVE THIRD RESPONDENT JAMES STEWART FOURTH RESPONDENT AUSTRALIAN ELECTORAL COMMISSION FIFTH RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 21 APRIL 2005 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The petition be dismissed. 2. The petitioner pay the costs of the first, second and fifth respondents. 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 45 OF 2005 SITTING AS THE COURT OF DISPUTED RETURNS BETWEEN: DARRYL WHEELEY PETITIONER AND: THE AUSTRALIAN ELECTORAL COMMISSIONER FIRST RESPONDENT THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND SECOND RESPONDENT GARY HARDGRAVE THIRD RESPONDENT JAMES STEWART FOURTH RESPONDENT AUSTRALIAN ELECTORAL COMMISSION FIFTH RESPONDENT JUDGE: KIEFEL J DATE: 21 APRIL 2005 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The Writ for the election of Members of the House of Representatives for the Electoral Divisions of the State of Queensland held on 9 October 2004 was issued by the Governor-General on 21 August 2004 and returned by the Governor-General on 11 November 2004. The third respondent was notified as duly elected as the Member for the Division of Moreton. It is not in dispute that the petitioner is entitled to vote in that Division. 2 On 16 December 2004 this petition was filed in the High Court of Australia. It is signed and witnessed as required. On 7 February 2005 Gummow J ordered that the fifth respondent, the Australian Electoral Commission ('the Commission') have leave to enter an appearance in the proceedings and be heard, and remitted the matter to this Court for trial with certain directions. The date provided by this Court for hearing took account of the unavailability of the petitioner's counsel. At the hearing of the matter counsel did not appear on behalf of the petitioner. 3 The petition contains the following under the heading 'Statement of Facts': '1. Judicial uncertainty as to the meaning of "vote for", as it refers to the conduct of elections held under the Commonwealth Electoral Act [the Act], was agreed in the High Court on 5 February 2003, in case 126/1998; and 2. The above case also concerns the meaning of "vote for" where and when members are "directly chosen by the people"in terms of Section 24 [and similarly Section 7] of the Constitution of the Commonwealth; and 3. The above hearing was adjourned without resolution of the uncertainty and no further hearings have been heard; and 4. The above uncertainty is explicitly evident in the following exchange in the Court transcript, published in February 2003: MR O'HAIR: … Your Honour, I would submit … whether the plaintiff can be compelled to vote for persons that he does not wish to vote for and that it essentially rests on two … GLEESON CJ: It depends on what you mean by "vote for". MR O'HAIR: Certainly, your Honour; and 5. The above uncertainty reflects confusion surrounding the numbering of all candidates listed on ballot papers [including Senate ballot papers]; and 6. This confusion emerged during Albert Langer's 'Neither'campaign and court cases in the 1990s; and 7. The procedures used by AEC officers and voters who number all "boxes", to mark, count and transfer "votes for", in both Senate and House of Representatives elections, cannot ascertain true an clear results; and 8. This original version of this petition was lodged for filing on 13 December, and also disputed elections of at least the last two of the six candidates returned as Queensland Senators, namely Barnaby Joyce and Russell Trood; and 9. Following advice from Elisa Harris, a High Court Deputy Registrar, that the petitioner has no right to dispute both Senate and Division election on a single petition, even where the grounds are substantially the same, the elections of Barnaby Joyce and Russell Trood are not explicitly disputed here; and 10. Despite repeated notices to all three respondents [and others], the allegation that the above procedures are, in terms of the Act, illegal [even criminal] practices, remains undenied and undisputed by all Respondents.' 4 The Prayer for Relief in the petition contains reference to only one substantive order relating to an election or elections, namely: '8. void the elections of those candidates returned as elected whose elections are uncertain;' 5 The prayer for relief otherwise contains reference to general provisions of the Commonwealth Electoral Act 1918 ('the Act') and seeks specific orders as to witnesses and documents which might be made in the course of a proceeding upon a petition. It also requests that matters be stated for a Full Court and that the petitioner be relieved from compliance with s 355(aa) of the Act. This is a reference to the petitioner not having identified and notified other candidates returned as elected and whose elections he would contend are void. These orders, which may be made by way of directions, are not those with which a petition is properly concerned. The form therefore is upon the order sought in paragraph 8. 6 The fifth respondent has previously raised the question whether the Court of Disputed Returns has jurisdiction to make the orders sought and whether the petition complies with the requirements of the Act. It reiterates those contentions. The first contention concerns the limitation upon a petitioner's right to present a petition to dispute the validity of an election. The election disputed must be of the Member for the Division in which the petitioner is enrolled. This accords with their right to vote. In the Commission's submission this limitation is fatal to the petition as framed. The additional submission concerns the alleged failure of the petitioner to identify facts which would lead to a conclusion of invalidity. 7 As to the first ground, s 221(2) of the Act provides that in a House of Representatives election, an elector shall only be admitted to vote for the election of a member for the division for which he or she is enrolled. Section 355(c) provides that a petition must be signed either by a candidate at the election in dispute or by a person who was qualified to vote at the election. 8 Brennan ACJ in Muldowney v Australian Electoral Commission (1993) 178 CLR 34 at 42 ('Muldowney') said: 'The framework of the Act as well as the language of s. 355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of a person ''who was qualified to vote thereat"is limited to those elections in which the petitioner was an elector entitled to vote. If a challenge on justiciable grounds can be mounted to the validity of a general election - a question that I need not consider - such a challenge cannot be entertained by the Court of Disputed Returns [Re Surfers Paradise Election Petition [1975] Qd R 114, at p. 117, suggests that a similar conclusion was reached under the Elections Act 1915 (Q) by Dunn J sitting as an Election Tribunal]. It may be that the High Court has such a jurisdiction but that has not been decided: see the dicta of Gibbs CJ in McKenzie v The Commonwealth[(1984) 59 ALJR 190, at p. 191; 57 ALR 747, at pp. 749 - 750].' 9 As Cooper J pointed out in Gunter v Hollingworth [2002] FCA 943 at [23]-[24] ('Gunter'), where this passage from Muldowney's case was cited, this approach has been consistently agreed in and applied. The consequence in this case is that the Court of Disputed Returns has jurisdiction only to hear and determine a petition from a petitioner limited to disputing the validity of the election or return for the Member for the Division of Moreton. 10 As to the requirements of the petition itself, s 355 in relevant part provides: '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;' 11 Section 358 provides: '(1) Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with. (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.' 12 After the period nominated for the filing of the petition by s 355(e), if the essential facts necessary to a conclusion of invalidity of the election in question are not set out, as that section requires, no proceedings may be had upon the petition: Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648, 649 and 652 ('Sykes'); see also Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409. In Sykes caseDawson J said (at 648, 649): 'The statement of the facts relied on to invalidate the election whichpara (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 theprecise distinction between para (a) and para (aa) of s 355 is a matter ofsome 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 that 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. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The Court would then be required to try the petition even though on its face it could not succeed.' (footnotes omitted). 13 As Cooper J pointed out in Gunter at [28] what is sought to be disputed and the relief which is sought, are to be ascertained from the terms of the petition itself as a matter of construction. 14 The petitioner upon the hearing spoke to the petition and his explanation went beyond the terms of it. The submissions however confirmed the view I had formed concerning the focus of the petition, namely the system of compulsory preferential voting. 15 In relation to the first ground of objection, clearly enough the petition seeks to void elections other than that of the third respondent. Indeed the basis of the petition is capable of extending to all elections. It is not possible to read down the orders sought in paragraph 8 of the prayer for relief to the third respondent's election alone. 16 It is possible to infer, by reference to paragraphs 5 and 6 of the petition and the earlier paragraphs, that the petitioner's concern is with the system of compulsory preferential voting generally, as to which see s 240 of the Act. That was the matter raised in Langer v Commonwealth (1996) 186 CLR 302, to which reference is made in the petition. In that case the validity of the section was confirmed. The reference in paragraphs 1 to 5 of the petition to some 'uncertainty' about this issue would appear to be to a comment made during argument leading to an adjournment in Bryant v Commonwealth No 126 of 1998 (High Court transcript 5 February 2003) pp 5-6, a case involving a constitutional challenge to compulsory preferential voting. The case has not been concluded. Paragraph 7 of the petition does not detract from the obvious intention of the petitioner to challenge the requirements of voting and have declared invalid the election of members other than the third respondent. 17 The Court of Disputed Returns does not have jurisdiction to make the order in par 8 sought. The petition should be dismissed for this reason. 18 In the circumstances I shall deal briefly with the additional submission of the fifth respondent, which was also adopted by the third respondent. Plainly the petition does not contain reference to facts from which a conclusion of invalidity would follow. The only matter stated, beyond a general concern regarding the state of the law concerning preferential voting, appears in paragraph 7 of the petition. In context it is likely to have been intended as a statement of the consequence of the required method of voting, although this is not entirely clear. Nothing can really be made of it in the absence of some further facts to elucidate why it is said that those involving in counting votes cannot ascertain true and clear results. As the Commission points out, the petition does not identify the problem arising from the system of voting and then demonstrate how that affects the election of the third respondent. The claim of illegality in par 10 of the petition does not assist in providing the necessary facts and particulars. 19 Neither paragraphs (a) nor (aa) of s 355 of the Act have been complied with and s 358 operates as a bar to a proceeding upon the petition. This affords another basis for the dismissal of the petition. 20 There will be an order that the petition be dismissed and that the petitioner pay the costs of the first respondent, second and fifth respondents. The third respondent does not seek an order for costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 21 April 2005 For the Petitioner: In Person Counsel for the First, Second and Fifth Respondents: Mr S Gageler SC Solicitor for the First, Second and Fifth Respondents: Australian Government Solicitor Counsel for the Third Respondent: Mr G Brandis For the Fourth Respondent: In person Date of Hearing: 20 April 2005 Date of Judgment: 21 April 2005