Candlish v Wasson [2002] NSWSC 79

New South Wales Supreme Court

CITATION : Candlish v Wasson [2002] NSWSC 79 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30006/02 HEARING DATE(S) : Tuesday 19 February 2002 JUDGMENT DATE : 22 February 2002

PARTIES : Iris Jean Candlish v John Wasson, Electoral Commissioner for New South Wales JUDGMENT OF : Michael Grove J at 1

COUNSEL : L.T. Grey (Plaintiff) A.S. Bell with M. Allars (Defendant) SOLICITORS : Michell Sillar, Agents for Collaery & Colquhoun (ACT) I.V. Knight (Crown Solicitor) CATCHWORDS : POLITICAL PARTIES - REGISTRATION - CANCELLATION BY ELECTORAL COMMISSIONER - REGULAR EXERCISE OF STATUTORY POWERS AND DISCRETIONS LEGISLATION CITED : Parliamentary Elections and Electorates Act 1912 Electoral Act 1992 (Queensland) CASES CITED : Sharples v O'Shea & Anor, Queensland Supreme Court 18 August 1999 DECISION : SUMMONS DISMISSED

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

MICHAEL GROVE J

Friday 22 February 2002

30006/02 - IRIS JEAN CANDLISH v JOHN WASSON, ELECTORAL COMMISSIONER FOR NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The originating summons was filed on 5 February 2002 and seeks certain declarations in respect of a determination by the defendant, as Electoral Commissioner for New South Wales (the Commissioner). The plaintiff deposes that she is the New South Wales State Secretary of a political party known as Pauline Hanson's One Nation (NSW Division) (the party). The summons was expedited by the Common Law Division List Judge on 14 February and placed in my list as Duty Judge on 18 February and heard on 19 February. Notice has been published by the State Electoral Office which includes, in relation to participation in the general election due in 2003: "It is anticipated that parties would need to be registered no later than 28 February 2002 – registration after that date cannot guarantee eligibility to fully participate, if at all, in the election. Unless registered for 12 months party will not be able to: S have party affiliation of candidates shown on ballot papers. S nominate candidates through their registered officer or deputy registered officer. S register material for distribution on polling day. S apply for payments under the Election Funding Act 1981. " 2 Mr Grey of counsel for the plaintiff stated that unless the matter is dealt with prior to 28 February, any relief could be rendered nugatory. In the circumstances, these reasons will be abbreviated in form and I will deal with the central issue of dispute without delaying to recapitulate all facets of argument advanced by the contesting parties. 3 It is necessary, however, to sketch some background. In 1998 the party was registered pursuant to the provisions of the Parliamentary Electorates and Elections Act 1912 (the Act). That registration was cancelled by the Commissioner on 19 May 2000. James Charles Millar deposes that he is the New South Wales State President of the party and that he cannot locate copy documentation regarding the foregoing, but he records the reason of the Commissioner for this cancellation as registration having been obtained by misrepresentation. 4 On 30 May 2000 various people were appointed as office holders of the State Executive of the party. This was said to have been done by the National Executive pursuant to powers granted to it by the State Constitution. I do not express doubt about the regularity of this as no challenge was made at the hearing and I simply record that I have not investigated this aspect. One of the appointees, to the office of State Secretary, was the plaintiff described as Iris Jean (Terri) Candlish. On 31 May 2000 a meeting was held of this State Executive. 5 Minutes note the following as being present: "David Oldfield – National Executive Member, Jim Millar – State President, Don Tarlinton – State Vice President, Lex Stewart – State Policy Co-ordinator, Barrie Lawn – State Membership Officer, John Cantwell – State Director, Jill Brown – State Vice President, Brian Burston – State Treasurer, Terri Candlish – State Secretary." 6 A resolution in these terms was minuted: "Moved by LS (Lex Stewart) that the NSW State Executive empower its members John Cantwell and Brian Burston to co-ordinate all and any material including fees, as required by the NSW State Electoral Commissioner for the re-registration of Pauline Hanson's One Nation in NSW – such registration to be lodged as quickly as reasonably possible. Seconded by DT (Don Tarlinton), carried unanimously." 7 On 2 June 2000 an application was lodged with the defendant for registration of the party (pursuant to Part 4A of the Act) naming David Oldfield as Registered Officer and Chris Spence as deputy Registered Officer (see s66D(c) and (d)). Mr Millar further deposed that the application was lodged by Mr Spence but although he cannot locate a copy of the application, that fact is confirmed in correspondence from the Commissioner. On 4 July 2000 the Commissioner registered the party pursuant to s4A. 8 On 29 September 2000 Mr Millar wrote to the Commissioner informing him, inter alia: "I write to inform you that the Secretary of the Party is now Mr Alexander Cornell Stewart. He was Secretary prior to the State Conference of 9/9/00 having been appointed secretary on 6th May as a result of the resignation of the elected secretary Mrs Estelle O'Brien." 9 This provoked enquiry about the lodgement for the application for registration by Mr Spence as Party Secretary. In response to enquiry from the Commissioner Mr Millar supplied a statutory declaration including: "I expect that Chris Spence was aware that Estelle O'Brien had been contemplating for quite some time before 6th May resigning as Secretary (due to business pressures). Her resignation was announced on that day (see ref 2 page 2) and Chris Spence, David Oldfield and Brian Burston were present. The process by which Mr Stewart was appointed to the Secretary's position was as follows: The NSW State Executive meeting continued onto 7th May and a motion 'That Lex Stewart be interim Secretary' was moved and carried (ref 2, page 9). Chris Spence, David Oldfield and Brian Burston were not in attendance on 7th May. The minutes were posted out on 24th May and were probably not ready by them due to the pressure of reregistering the party. On 19th May the NSW party was deregistered. They may have been unaware that Lex Stewart was acting in that position perhaps until he posted out on 13th June the papers for the State Executive meeting on 17th June, by which time the reregistration had already been lodged. It is possible that putting Chris Spence in as Party Secretary at that time of turmoil was thus a matter of convenience as correspondence . David Oldfield putting himself in as Registered Officer was not in line with previous practice whereby Pauline Hanson is Registered Officer for the Federal party and in all states." (Emphasis added). 10 On 2 March 2001 Mr Stewart as Secretary lodged an application for registration of the party. 11 The Act includes these provisions: "66G Refusal to register …………………………………………………. (3) The Electoral Commissioner is to refuse to register a party if, in the opinion of the Electoral Commissioner, the name of the party or the abbreviation of the name (if any) as set out in the application for registration of the party: ……………………… (c) is the name, is an abbreviation or acronym of the name, or is a derivative of the name, of a registered party or a party currently represented in Parliament, or (d) so nearly resembles the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, or (e) comprises the words 'Independent Party' or comprises or contains the word 'Independent' and: (i) the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament, or (ii) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym. (3A) A reference in subsection (3) (c)-(e) to a registered party includes a reference to any party that was registered under this Part at any time during the previous 4 years, except where the application for registration is made with the approval of a person who was the last registered officer or deputy registered officer of that previously registered party." 12 On 26 March 2001 the Commissioner wrote to Mr Stewart advising (in relation to the proviso to subsection (3A) ) that he was in receipt of "written advice from Chris Spence declining to approve of your application". This application was not further pursued and for present purposes, apart from noting it, it may be ignored. 13 As a result of an election in August 2001 the plaintiff became Secretary of the Party and on 19 December 2001 she lodged another application for registration of the party pursuant to the Act. 14 On 3 January 2002 the Commissioner wrote to the plaintiff and his letter included: "Section 66G(3A) of the Act provides to the effect that a party having the same or similar name to a party registered within the previous four years cannot have that same or similar name registered in that period unless the application is approved by the Registered Officer or Deputy Registered Officer of the last previously registered party. The Pauline Hanson's One Nation party was registered under the Act until 22 November 2000 when registration was cancelled. At the time of cancellation of registration David Oldfield and Chris Spence held the position of Registered Officer and Deputy Registered Officer, respectively of the party. Thus the approval of either Mr Oldfield or Mr Spence is needed for your application to proceed. No such approval has been received from either of these persons. In the circumstances I am unable to approve of your application to register the Pauline Hanson's One Nation party under the provisions of Part 4A of the Act." 15 It is this refusal which gives rise to the various forms of relief sought in the Summons. 16 An understanding of the position adopted by the Commissioner can be gained from the statement of reasons for cancellation of the registration which had previously been effected on 4 July 2000 which accompanied his letter to Mr Millar dated 22 November 2000, part of which was in these terms: "Section 66D(1) of the Parliamentary Electorates and Elections Act 1912 provides that the secretary of a party may apply for registration of a party. Section 66A of the Act defines 'secretary of a party' as:- 'the person who holds the office (however expressed) the duties of which involve responsibility for the carrying out of the administration, and for the conduct of the correspondence, of the party.' Having regard to the terms of the advice from Mr Millar there appeared to be some doubt as to whether the application made on 2 June 2000 by Mr Spence was made in accordance with section 66D(1) of the Act in that he may not have been the secretary of the party at that time. With a view to clarifying the position statutory declarations were sought from Messrs Spence, Stewart and Millar and Ms Hanson evidencing the status of Mr Spence as the time he applied for registration of the party. Mr Spence claims he was asked to fulfil the responsibilities as Secretary 'for the purposes of registration and the on going conduct of the matters related to registration by those making the application – Brian Burston and John Cantwell.' This represents a misunderstanding of the requirements of the Act. The application is only permitted to be made by the secretary and the secretary is the person who holds the office the duties of which involve the specified responsibility. It is not enough that Mr Spence may have been asked to be secretary 'for the purposes of registration and the on going matters relates to registration', only the person who holds the office the duties of which involve responsibility for the carrying out of the administration of the party and the conduct of the correspondence of the party may make an application for registration of the party. At best, Mr Spence seems to have physically performed some administrative and some correspondence tasks and to have been entrusted by senior officials with expediting of the application for the registration of the party. The declaration lodged by Mr Millar sheds little light on the definitive role of Mr Spence at the time of the application being made. An unsolicited statutory declaration was provided by Mr Brian Burston, the Party Agent for the party. The declaration fails to address the duties of the office which Mr Spence held and simply declares that it was known by James Millar that Chris Spence was the deputy registered officer and secretary. If anything, the statutory declarations casts doubt on the extent to which Mr Spence even had responsibility for the registration of the party. It clearly does not assert a duty of his office was the responsibility required in order to be the secretary within the meaning of the Act. No declarations were received from Mr Stewart or Ms Hanson." 17 The relevant power is vested by s66I(2)(d) of the Act: "66I Cancellation of registration (1) ……………... (2) If the Electoral Commissioner is satisfied on reasonable grounds that: (a) a registered party has ceased to exist (whether by amalgamation with another party or otherwise), or (b) a registered party is no longer an eligible party, or (c) the candidates at a general election held after the registration of a party did not include at least one candidate endorsed by the party, or (d) the registration of a party was obtained by fraud or misrepresentation, the Electoral Commissioner may, subject to and in accordance with the regulations, cancel the registration of the party (3) ………………." 18 The Commissioner's statement of reasons concluded that the registration (on 4 July 2000) was obtained by misrepresentation. He did not refer to fraud. 19 In written submissions Mr Grey articulated two basic submissions, the first being: "Sub-section 66G(3A) of the Act does not apply in this case because the purported application for registration in 2000 was never duly made, and the consequent purported registration was never of any effect, hence there was no requirement in any later application to include the approval of the persons named as Registered Officer or Deputy Registered Officer in the 2000 application ……………." 20 Argument in support posited that the cancellation of the registration derived from the "unauthorized application" by Mr Spence rendered that registration void ab initio and hence the application by the plaintiff did not require approval of anyone nominated as registered officer or deputy registered officer in that non effective registration. 21 I was referred to the judgment of Atkinson J in Sharples v O'Shea & Anor Queensland Supreme Court 18 August 1999 which included references to not dissimilar provisions in the equivalent Electoral Act 1992 (Queensland). The issue before her Honour did not involve, in particular, focus upon a provision alike to s66G(3A) and I do not find the plaintiff's argument enforced by that judgment. It can be mentioned in passing that her Honour was exercising an express power of review vested by s180 by the Queensland statute. 22 Mr Bell of counsel who appeared with Ms Allars for the Commissioner analysed the structure of Part 4A of the Act with a view to demonstrating an emphasis upon the creation of and the access by any citizen to a public record. I agree that such a legislative intent is discernible, although it is not exclusive. 23 I would uphold the defendant's contention however that the relevant provisions of the Act should not be construed so as to treat cancellation by the Commissioner as avoidance ab initio of the registration. The construction argued by the plaintiff would have the consequence that "cancel" would have a different meaning when the Commissioner exercised his power under s66I(2)(a), (b) or (c) from when he exercised it under s66I(2)(d). The words of the statute import no such discrimination nor would the language support any proposition that "cancel" means avoidance ab initio in all circumstances. For example, s66J(a) contemplates a party ceasing to exist by amalgamation with another party but that cancellation could not imply that a component of the later amalgamation never had former registered existence. Also s66J(2B) in its reference to eligibility "no longer", necessarily conveys that the particular party was formerly eligible (and registered). 24 Once it is accepted that the party has had an existence as a registered party pursuant to the Act, s66G(3A) applies in its unambiguous terms and the Commissioner was correct in requiring the relevant approval and, given the identity of name, to refuse registration when such approval was not forthcoming. 25 There is also in my opinion force in the argument of the defendant that the plaintiff's submission requires that there be read into s66G(3A) qualifying words to "any party that was registered under this Part at any time during the previous four years" (emphasis added) such as "other than a party which was registered but whose registration was cancelled because registration was obtained by fraud or misrepresentation". 26 The alternative written submission on behalf of the plaintiff was expressed: "s66G(3A) does not apply where a Party seeks re-registration after having been registered for some earlier period of time ending in the preceding four years; rather, the sub-section is directed towards the unauthorised use by one party of a name which is the same, or similar to, a name previously used by a different party; in this case, the evidence establishes that the 2001 application was made on behalf of the same Party as the Party named in the 2000 application." 27 There is nothing in the Act which suggests that the Commissioner is required to, or should, concern himself with investigating the "sameness" of an applicant. I would adopt and endorse the submission by the defendant that the pertinent provisions of the Act are evidently designed to avoid confusion not only from external attempts to appropriate a name but also attempts at internal appropriation. 28 I do not regard the words of the statute as presenting doubt or ambiguity and I do not find it necessary to advert to parliamentary materials as invited by the plaintiff. In the light of the breadth of the submission which was made, I should draw attention to the defined speeches which would be available for such reference pursuant to the Interpretation Act s34(2)(f). 29 The basis upon which administrative law jurisdiction was sought to be invoked was not canvassed and I am not exercising expressly vested jurisdiction such as, for example, that under s180 of the Queensland statute abovementioned. As my conclusion is that the plaintiff's claim should fail it is unnecessary to examine matters such as the scope of jurisdiction to intervene in relation to the Commissioner's discretion. 30 The summons is dismissed. I order the plaintiff to pay the defendant's costs of the summons.