Tony Wiltshire v Malcolm Turnbull & Ors [1998] FCA 10 (16 January 1998)

FEDERAL COURT OF AUSTRALIA

ELECTIONS - Constitutional Convention - petition disputing election - whether successful candidates took part in conduct of election - whether successful candidates committed or attempted to commit undue influence - whether successful candidates printed, published or distributed any matter or thing likely to mislead or deceive electors in relation to casting of votes - motion to strike out petition - whether petition defective for want of particularity of facts - whether petition may be amended.

Commonwealth Electoral Act 1918 (Cth) s 355

Constitutional Convention (Election) Act 1997 (Cth) ss 35, 52, 126(1), 140, 147, 150, 157(3), 160, 165(1)

Crimes Act 1914 (Cth) s 28

Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169, foll

Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627, refd

Nile v Wood [1987] HCA 62; (1987) 76 ALR 91, foll

Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645, appl

Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223, appl

TONY WILTSHIRE v MALCOLM TURNBULL & ORS

NG 5 of 1998

JUDGE: DAVIES J

DATE: 16 JANUARY 1998

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:	TONY WILTSHIRE PETITIONER
AND:	MALCOLM TURNBULL first Respondent doug sutherland second respondent australian electoral commission third respondent commonwealth of australia fourth respondent

coram:	DAVIES J
DATE OF ORDER:	16 JANUARY 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The petition 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:	TONY WILTSHIRE PETITIONER
AND:	MALCOLM TURNBULL first Respondent doug sutherland second respondent australian electoral commission third respondent commonwealth of australia fourth respondent

CORAM:	DAVIES J
DATE:	16 JANUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is the hearing of a petition brought under the Constitutional Convention (Election) Act 1997 (Cth) ("the Act") which seeks orders that the election to the Constitutional Convention of the first and second respondents, Malcolm Turnbull and Doug Sutherland, be declared void. Also heard were motions brought on behalf of Messrs Turnbull and Sutherland seeking the dismissal of the petition on the ground that the petition did not set out facts on which the elections could be declared void. The petitioner, Tony Wiltshire, was an unsuccessful candidate in the election for the Constitutional Convention. The Australian Electoral Commission and the Commonwealth of Australia were, at their request, joined in the proceedings.

For some time now, there has been debate in Australia as to whether Australia should remain a Constitutional monarchy with the Queen as its Head of State or whether it should become a Republic and, if so, how the Head of State should be chosen and what powers the Head of State should have. In order to further the consideration of this issue, the Australian Government decided in 1997 to hold a Constitutional Convention in early 1998 at which both Government appointed delegates and delegates elected by the Australian people would attend. To make provision for the election of one half of the total of 152 delegates, the Federal Parliament passed the Act. In the course of his second reading speech on 25 March 1997, the Prime Minister said:

"We recognise that if people are really to have a say, to participate in the debate in some meaningful way, they must have an informed appreciation of the issues they are being asked to decide. Balanced and easily understood information on the issues will be prepared and distributed widely before the election of delegates. That material will explain, in plain English, how the existing constitutional system operates. It will identify the arguments for and against change. We will approach the Australians for Constitutional Monarchy and the Australian Republican Movement and other organisations and individuals to provide input. The material will seek to fairly represent all sides of the debate and present the options, with comments which will help the reader to work through the advantages and disadvantages of those alternatives."

Notice of the election issued on 29 September 1997. The polls for the election ultimately closed on 9 December 1997. During this period, the Department of Prime Minister and Cabinet issued a four page document which it called a "liftout" which was widely distributed to the Australian people by being placed in newspapers and by other means. The liftout was headed "Republic - Yes or No?" and it set out information with respect to the Australian Constitution, the Queen's role, the Governor-General's role and options for an Australian Republic. On the fourth page, the liftout set out a brief synopsis of the views of the group entitled "Australians for a Constitutional Monarchy", as to why Australia should not become a Republic, and also a synopsis of the views of the group, "The Australian Republican Movement", as to why Australia should become a Republic. Each synopsis had been sought by the Department of Prime Minister and Cabinet from the respective group and had been provided as requested.

The liftout did not refer to the Constitutional Convention save to say that there was to be in February 1998 a Constitutional Convention to discuss the issue, that there would be 152 delegates of which half would be elected and half would be appointed and that the Convention would consider whether Australia should become a Republic and, if so, how and when. The liftout explained that the proceedings of the Convention would not themselves make Australia a Republic and that the Government was committed to holding a vote of the Australian people on the issue by the end of the year 2000.

Mr Wiltshire, who was an independent candidate in the election, has complained of the liftout, alleging, without proof, that because the liftout set out the views of the Australians for a Constitutional Monarchy and the views of the Australian Republican Movement, it promoted the interests of those two groups to the disadvantage of independent candidates. Mr Wiltshire alleges that the liftout influenced the voting so that, on the first count, Mr Turnbull received 489,084 votes and Mr Sutherland 315,078 votes whilst he, Mr Wiltshire, received only 4,180 votes. Mr Turnbull headed the list of candidates put forward by the Australian Republican Movement whilst Mr Sutherland headed the list of candidates for the Australians for a Constitutional Monarchy.

Mr Wiltshire seeks declarations that the elections of Messrs Turnbull and Sutherland are void on the ground that, by participating in the liftout, they took part in the conduct of the election, contrary to s 52 of the Act, and exercised undue influence over voters. Finally, Mr Wiltshire said in his address, though not in his petition, that the liftout was a misleading document for it posed an issue in the terms of "Republic - Yes or No?", whereas the Convention would consider many other questions.

Section 157 of the Act provides, inter alia:

"(3) Without limiting the powers conferred by this section, the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election."

(emphasis added)

Section 165(1) provides:

"If the Court finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate must be declared void." (emphasis added)

Section 147 gives these interpretations:

"illegal practice means a contravention of this Act or the regulations.

undue influence means a contravention of section 140 of this Act or section 28 of the Crimes Act 1914."

The first illegal practice alleged concerns the conduct of the election. Section 52 of the Act provides:

"A candidate must not in any way take part in the conduct of an election."

The words "conduct of an election" have not been the subject of judicial exposition. However, they plainly have a limited operation, being concerned with conduct involved in the management and administration of an election rather than conduct having any relationship to an election. In the context where candidates are expected to put themselves forward for an election and to promote their candidature orally and by the written and printed word, the expression is clearly referring to the actions of those who control and determine an election and who, because they have a duty of independence, must stand apart from the activities of those persons who are expected to promote the interests of one candidate or another. In the context, the words "the conduct of" refer to the management and administration of the election, not to "conduct in" the election.

There is no evidence that Messrs Turnbull and Sutherland took any part in the election of the Convention delegates save that part which they were entitled to take as candidates for an election. Indeed, there is no evidence Mr Sutherland participated in or authorised the preparation and publication of the relevant synopsis on p 4 of the liftout. Mr Sutherland has expressly denied doing so. The solicitor for Mr Turnbull has deposed that he has been informed by Mr Turnbull and verily believes that:

"... apart from being part of the group which worked on the contribution within the ARM he has had no part in the production, distribution or authorisation of the document referred to ..."

That is an admission that Mr Turnbull took part in the preparation of the relevant synopsis which ultimately was included in the liftout; but there is no evidence that he played any other part in relation to it.

The preparation and publication of the liftout was, in my opinion, not part of "the conduct of the election" as that term is used in s 52 of the Act. The Department of the Prime Minister and Cabinet did not conduct the election; the Australian Electoral Commission, its officers and agents did so. Mr Wiltshire misunderstands the intent and effect of the liftout. It appears from that the document that it was drafted to discuss the issue which was being debated in Australia, namely, whether Australia should remain as a Constitutional Monarchy or should become a Republic. The issues on both sides of the debate were outlined. In the circumstances, it was appropriate to have a synopsis from the principal group promoting a Constitutional Monarchy and a synopsis of the principal group promoting a Republic. The liftout was directed to outlining the factors relevant to the issue which was ultimately to be resolved by a vote of the people by the end of the year 2000, and the consideration of which was to be assisted by the holding of the Constitutional Convention in February 1998. Because the liftout was directed to the wider issue rather than to the election itself, it was a helpful, informative document and was not misleading. It was not directed at the election. It did not promote any candidate or group of candidates over any other.

Because the distribution of the liftout was not part of the conduct of the election, it was not in conflict with either the terms or the spirit of s 35 of the Act which provided that a group or an ungrouped candidate may submit a statement for inclusion in the voting material to be distributed, such statement to be within the maximum number of words which the section specified.

It follows that, as the preparation and distribution of the liftout was not part of the conduct of the election, the part which Mr Turnbull played in the preparation of the synopsis was also not part of the conduct of the election. Mr Sutherland, of course, played no part at all in relation to the liftout or the synopsis therein.

The next ground relied upon was that Messrs Turnbull and Sutherland were guilty of undue influence. The term "undue influence" is defined in s 147 to refer to conduct which is in breach of s 140 of the Act or s 28 of the Crimes Act 1914 (Cth). I need not set out either of those sections. There is no evidence in the present case of any act on the part of Mr Turnbull or Mr Sutherland which would fall within these sections.

It necessarily follows that the petition must fail. Neither Mr Turnbull nor Mr Sutherland engaged in any conduct which was in breach of s 52 of the Act or which constituted "undue influence" as defined. Accordingly, there is no ground for declaring the elections void. The Act specifies the grounds upon which an election may be set aside and they are exhaustive. The grounds expressed in the Act are not either to be ignored or to be expanded beyond their scope by the reference in s 160 of the Act to "the substantial merits and good conscience of each case". See Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627 at 631.

Mr Wiltshire also relied in his address, although not in his petition, upon an alleged breach of s 126(1) of the Act which provides:

"A person must not, during the relevant period in relation to an election, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that the person knows, or ought reasonably to have known, is likely to mislead or deceive an elector in relation to the casting of a vote."

However, there was nothing in the synopses prepared by the Australians for a Constitutional Monarchy or by the Australian Republican Movement which was likely to mislead or deceive an elector in relation to the casting of a vote. The synopses briefly put the crux of the views propounded by each of those groups. Because the liftout was directed to the wider issue and not to the election, the liftout was not in any way either misleading or biased in favour of the two groups whose views were set out therein. The liftout dealt not with the question of who should be elected to the Convention but outlined the nature of the issue: Constitutional Monarchy on the one hand or Republic on the other. Voters would have been assisted by the document, not misled by it. It is perhaps unnecessary to add that neither Mr Turnbull nor Mr Sutherland was responsible for the liftout or its format.

Counsel for Messrs Turnbull and Sutherland submitted that the petition should be dismissed because it failed to meet the requirements of s 150 of the Act which provides, inter alia:

"Subject to section 152, every petition disputing an election or return ... must:

(a) set out the facts relied on to invalidate the election or return; and

(b) 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; and

...

(f) be filed in the Court within 14 days after the date on which the Electoral Commissioner gives the Minister a copy of the notice under paragraph 116(2)(a) in respect of the election."

Counsel referred to the remarks of Dawson J in Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645 where his Honour said at 648-9:

"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 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." (emphasis added)

The reference in his Honour's remarks to para (a) and para (aa) of s 355 of the Commonwealth Electoral Act 1918 (Cth) is a reference to a provision similar to s 150 of the Act.

The same point was put by Gaudron J in Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223 where, at 225, her Honour pointed out that where an election can be declared void only if the Court is satisfied that the result of the election is likely to be affected, the very minimum assertion necessary in a petition to constitute a fact which will invalidate an election is one that the election was likely to be affected by what has occurred.

As these authorities demonstrate, the essential elements of the claim must be set out in the petition so that it can be seen from the petition that, if the facts alleged are proven, the election of a particular candidate is liable to be set aside. A petition must be filed within 14 days. Accordingly, it cannot thereafter be amended. See Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169 at 208; Nile v Wood [1987] HCA 62; (1987) 76 ALR 91 at 93.

In the present case, the facts set out by Mr Wiltshire in his petition, which were the facts on which he relied, did not of themselves establish a ground for the avoidance of the elections of Messrs Turnbull and Sutherland. Therefore, the petition was liable to be struck out. However, I have preferred to hear the motions with the petition rather than to deal with the motions separately. I should perhaps add that I read Mr Wiltshire's petition and his accompanying affidavit, which were filed at the same time on 6 January 1998, together. The affidavit was unnecessary and merely expanded upon the petition. One should not be unduly technical, particularly when litigants in person are involved. Especially is this so when s 160 of the Act enjoins the Court to "be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities ...".

The petition should be dismissed. At the request of counsel, I shall reserve the question of costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 16 January 1998

	The petitioner appeared in person.
Counsel for the 1st Respondent:	J.A. McCarthy QC
Solicitor for the 1st Respondent: Counsel for the 2nd Respondent: Solicitor for the 2nd Respondent: Counsel for the 3rd Respondent: Solicitor for the 3rd Respondent: Counsel for the 4th Respondent: Solicitor for the 4th Respondent:	Fisher Grogan J.C. Kelly A. Harvey Sutton & Co. R.M. Henderson Australian Government Solicitor K.M. Connor Australian Government Solicitor
Date of Hearing:	15 January 1998
Date of Judgment:	16 January 1998