Green v Bradbury [2011] FCA 71 (3 February 2011)

Last Updated: 23 February 2011

FEDERAL COURT OF AUSTRALIA

Green v Bradbury [2011] FCA 71

Citation:	Green v Bradbury [2011] FCA 71
Parties:	ANDREW GREEN v DAVID BRADBURY, AUSTRALIAN LABOR PARTY (NSW) and AUSTRALIAN ELECTORAL COMMISSION
File number(s):	NSD 1668 of 2010
Judge:	EMMETT J
Date of judgment:	3 February 2011
Catchwords:	ADMINISTRATIVE LAW – court of disputed returns – electoral petition filed – validity of election disputed – whether petition set out facts relied upon to invalidate election or return – whether petition set out facts capable of supporting allegation of bribery, corruption or undue influence – whether petition set out facts capable of supporting allegations of other illegal practices – whether petition set out facts bearing upon the casting or counting of votes – whether petition set out facts demonstrating that the result of the election was likely to have been affected – whether political party correctly joined as respondent to petition
Legislation:	Commonwealth Electoral Act 1902 (Cth) ss 194, 196, 200 Commonwealth Electoral Act 1918 (Cth) ss 184, 188, 189, 192, 194, 195A, 326, 327, 328, 338, 352, 353, 354, 355, 358, 359, 360, 362, 363A, 364, 365, 368, 369, 375, 533 Constitution ss 48, 49 Crimes Act 1914 (Cth) s 28
Cases cited:	Cole v Lacey [1965] HCA 11; (1965) 112 CLR 45 Hansen v Australian Electoral Commission [2000] FCA 606 Kelly v Campbell [2002] FCA 1125 Maloney v McEacharn [1904] HCA 3; (1904) 1 CLR 77 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645 Watson v J & A G Johnson Limited [1936] HCA 73; (1936) 55 CLR 63 Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223 Whitby v Garlett (2000) 98 FCR 385
Date of hearing:	31 January 2011 and 1 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Petitioner:	P. E. King
Solicitor for the Petitioner:	James R G Bell
Counsel for the First and Second Respondents:	B. Walker SC, A. D. Lang
Solicitor for the First and Second Respondents:	Slater and Gordon
Counsel for the Third Respondent:	G. R. Kennett SC
Solicitor for the Third Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1668 of 2010

BETWEEN:	ANDREW GREEN Petitioner
AND:	DAVID BRADBURY First Respondent AUSTRALIAN LABOR PARTY (NSW) Second Respondent AUSTRALIAN ELECTORAL COMMISSION Third Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	3 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. No proceedings be had on the petition filed on 27 October 2010.
2. This proceeding be dismissed.
3. The proceeding be listed on 4 February 2010 for directions concerning submissions on the question of costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1668 of 2010

BETWEEN:	ANDREW GREEN Petitioner
AND:	DAVID BRADBURY First Respondent AUSTRALIAN LABOR PARTY (NSW) Second Respondent AUSTRALIAN ELECTORAL COMMISSION Third Respondent

JUDGE:	EMMETT J
DATE:	3 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The petitioner, Mr Andrew Green (the Petitioner), has commenced a proceeding under Part XXII of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act). In his petition filed in the High Court on 27 October 2010 (the Petition), the Petitioner disputes the validity of the election and return in the division of Lindsay in the election for the House of Representatives held on 21 August 2010. The Petition names as respondents:

• Mr David Bradbury, the successful candidate in the election,

• “Australian Labor Party (NSW branch)” and

• the Australian Electoral Commission (the Commission).

2. The Commission and Mr Bradbury have moved for summary dismissal of the Petition. In addition, Mr Bradbury has moved for the removal of the second named respondent on the basis that there is no such legal entity capable of being a party to the Petition. By way of response to the latter application, the Petitioner has moved for the joinder of Mr Sam Dastyari to represent the members of the Australian Labor Party (NSW branch).
3. The thrust of the Petitioner’s complaint concerns alleged irregularities in postal voting at the election for the Lindsay division. He complains that postal votes that did not comply with the requirements of the Electoral Act were counted and that Mr Bradbury used his position as member of the House of Representatives for Lindsay to obtain a benefit in connection with the election. Before describing the allegations made in the Petition and dealing with the bases upon which summary dismissal of the petition is sought, it is desirable to say something of the relevant provisions of the Electoral Act.

THE ELECTORAL ACT

4. Part XV of the Electoral Act, which consists of ss 182 to 200, deals with postal voting. Part XXI, which consists of ss 322 to 351, deals with electoral offences. Part XXII, which consists of ss 352 to 381, deals with the Court of Disputed Returns.

Postal Voting

5. An elector may apply for a postal vote on any of the grounds set out in schedule 2 to the Electoral Act. Under s 184(1), an application must be in writing in the approved form and must contain a declaration by the applicant that he or she is an elector entitled to apply for a postal vote. Under s 184AA(1), an application form for a postal vote may be physically attached to, or form part of, other written material issued by any person or organisation.
6. Section 188(1) relevantly provides that a Divisional Returning Officer who receives an application for a postal vote that is in accordance with s 184(1) must send or arrange for the sending to the applicant:

• a postal vote certificate printed on an envelope,

• one postal ballot paper, and

• an envelope addressed to the Divisional Returning Officer.

7. Under s 189(1), the officer who issues a postal vote certificate and postal ballot paper must write on the application the date of issue of the certificate and ballot paper. Under s 189(3), all applications for postal votes must be open to public inspection at the office of the Divisional Returning Officer.
8. Section 194 sets out requirements for postal voting that must be substantially observed. Under s 192, a postal vote certificate must be in the approved form. Section 195A specifies the procedure for dealing with postal vote certificates.

Electoral Offences

9. Section 326 deals with bribery. Section 326(1) relevantly provides that a person must not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain, any property or any benefit of any kind on an understanding that:

• any vote of that person,

• any candidature of that person,

• any support of, or opposition to, a candidate, a group of candidates or a political party by that person, or
• the doing of any act or thing by that 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,

• will, in any manner, be influenced or affected.

10. Section 326(2) relevantly provides that a person must not give or confer, or promise or offer to give or confer, any property or any benefit of any kind to another person or to a third person, with the intention of influencing or affecting:

• any vote of that other person,

• any candidature of that other person,

• any support of, or opposition to, a candidate, a group of candidates or a political party by that other person, or
• the doing of any act or thing by that other person the purpose of which is, or the effect of which is likely to be, to influence the preferences set out in a vote of an elector.

11. Section 327 deals with interference with political liberty. Under s 327(1), no person is permitted to 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 the Electoral Act.
12. Section 328 deals with the printing and publication of electoral advertisements and the like. Section 328(1) relevantly provides that a person must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed, an electoral advertisement, handbill, pamphlet, poster or notice unless the name and address of the person who authorises the advertisement, handbill, pamphlet, poster or notice appears at the end thereof.

Court of Disputed Returns

13. Under s 353(1), the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise. Under s 354(1), the High Court is to be the Court of Disputed Returns and is to have jurisdiction either to try the petition or to refer it for trial to the Federal Court. Under s 354(2), when a petition has been so referred for trial, the Federal Court is to have jurisdiction to try the petition and is, in respect of the petition, to be, and to have all the powers and functions of, the Court of Disputed Returns. Section 354(6) provides that the jurisdiction conferred by s 354 may be exercised by a single justice or judge.
14. Sections 355 and 358 are critical for the present proceeding. Under s 355, every petition disputing an election or return must, relevantly:

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

(b) subject to s 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,

(c) contain a prayer asking for the relief the petitioner claims to be entitled to, and

(d) be filed in the registry of the High Court within 40 days after the return of whichever of the writs for the election in dispute and any other election held on the same day is returned last.

15. Under s 358(1), no proceedings are to be had on a petition unless, relevantly, the requirements of s 355 are complied with. However, under s 358(2) the court may, at any time after the filing of a petition, and on such terms as it thinks fit, relieve the petitioner wholly or in part from compliance with s 355(aa). Nevertheless, the Court must not grant relief under s 358(2) unless it is satisfied that:

(a) in spite of the failure of the petition to comply with s 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.

It is significant that the power of dispensation referred to in s 358(2) does not extend to failure to comply with s 355(a). That is emphasised by the qualification contained in s 358(3)(a) to the effect that a petition must sufficiently identify the specific matters on which the petitioner relies.

16. Under s 359, the Commission is entitled, by leave of the Court, to enter an appearance in any proceedings in which the validity of any election or return is disputed and is entitled to be represented and heard on the hearing of the petition. In such a case, the Commission is deemed to be a party respondent to the petition.
17. Section 360 deals with the powers of the court. Under s 360(1), the powers are to include, relevantly, the following:

(ii) to compel the attendance of witnesses and the production of documents,

(iii) to grant to any party to a petition leave to inspect the rolls and other documents (except ballot papers) used at or in connection with any election and to take extracts from those rolls and documents),

(iv) to examine witnesses on oath,

(v) to declare that any person who was returned as elected was not duly elected,

(vi) to declare any candidate duly elected who was not returned as elected,

(vii) to declare any election absolutely void,

(viii) to dismiss or uphold the petition in whole or in part.

18. Under s 360(2), the Court may exercise all or any of its powers under s 360 on such grounds as the Court in its discretion thinks just and sufficient. Without limiting the powers conferred by s 360, 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. ‘Illegal practice’ is defined in s 352(1) as a contravention of the Electoral Act or the Regulations made under the Electoral Act.
19. Section 362 deals with the voiding of elections. Under s 362(1), 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. ‘Bribery’ is defined in s 352(1) as a contravention of s 326. ‘Undue influence’ is relevantly defined as a contravention of s 327.
20. Section 362(3) is of some significance in the proceeding. Under that provision, the Court must 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. Corruption is also defined in s 352(1) as a contravention of s 326.

21. The lack of symmetry between s 362(1) and s 362(3) is curious. That is, s 362(1) refers to bribery or undue influence, terms defined separately in s 352(1) by reference to ss 326 and 327 respectively. Section 362(3)(b), by contrast, excludes bribery or corruption, terms defined only by reference to s 326. However, in the present case, nothing appears to turn on that lack of symmetry.
22. Section 363A of the Electoral Act provides that the Court must make its decision on a petition as quickly as is reasonable in the circumstances. Under s 364, the Court is to be guided by the substantial merits and good conscience of each case, without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
23. Section 365 deals with immaterial errors. Under that provision, no election is to be avoided on account of any delay in the declaration of nominations, the provision of certified list of voters to candidates, the polling, or the return of the writ. Nor is an election to be avoided on account of the absence or error of or omission by any officer which did not affect the result of the election. However, where any elector was, on account of the absence or error of, or omission by any officer, prevented from voting in any election, the Court must not, for the purposes of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election.
24. Under s 368, all the decisions of the Court are to be final and conclusive and without appeal and are not to be questioned in any way. Under s 369, a copy of the petition, and forthwith after the trial of the petition, a copy of the order of the court must be given to the clerk of the House of Parliament affected by the petition. Section 375 empowers the justices of the High Court to make rules of court, not inconsistent with the Electoral Act, for carrying Part XXII into effect and for regulating the practice and procedure of the Court and the forms to be used.

Some Legal Principles

25. The issues raised by the motions involve the proper construction of the Electoral Act and particularly the effect of s 355 and s 358(1). The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. That is to say, the meaning of a particular provision must be determined by reference to the language of the statute as a whole. The context, the general purpose and policy of a provision, and its consistency and fairness, are guides to its meaning. The process of construction must begin by examining the context of the provision that is being construed (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]).
26. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result that will best give effect to the purpose and language of the provision while, at the same time, maintaining the unity of the whole of the statutory instrument. Sometimes, reconciliation of apparently conflicting provisions may require a determination of which is the leading provision and which is the subordinate provision. Further, a court construing a statutory provision must strive to give meaning to the whole of the provision. A provision is to be construed so that, if a particular construction will make every clause, sentence and word of the provision useful and pertinent, that construction is to be preferred to one under which a clause, sentence or word is superfluous or void (Project Blue Sky at [70] and [71]).
27. The Commonwealth Electoral Act 1902 (Cth) (the 1902 Act) was the predecessor of the Electoral Act. Section 194 of the 1902 Act corresponds with s 355 of the Electoral Act and specified the requisites for a petition in much the same language as s 355, so far as is presently relevant. Section 196 corresponds with s 358 in providing that no proceedings were to be had on a petition unless the requirements of s 194 were complied with. Section 200 of the 1902 Act was the predecessor of s 365 of the Electoral Act and was in substantially the same terms. However, the 1902 Act apparently contained no provision equivalent to s 362 of the Electoral Act.
28. The 1902 Act contained provision for postal votes, including provisions as to what was to be done after an application was made for a postal vote certificate. The attestation of an application by one of the persons specified was an essential condition to the granting of the application. If an application could be made without attestation, means of impersonation would be available and there would be no check or means of obtaining evidence against the impersonator. Anybody would be enabled to get a postal ballot paper. However, if an application is required to be attested by some known and identified person, of one of the classes specified in the forms, that would provide a safeguard in that, if such a person improperly attested a ballot paper, that person would be liable to lose an official position (Maloney v McEacharn [1904] HCA 3; (1904) 1 CLR 77 at 86-7 and 88).
29. The facts that s 355(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. The essential facts may be stated with a degree of generality, although s 355(aa) requires sufficient particularity to identify the specific matter or matters relied on. While there is power to waive compliance with s 355(aa), there is no power to waive compliance with s 355(a). It may be difficult to draw a line between what is essential and what amounts merely to particularity. However, s 355(a) requires the setting out of essential facts that are sufficient to justify a finding of invalidity (Cole v Lacey [1965] HCA 11; (1965) 112 CLR 45 at 51 and Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645 at 649). If that were not so, a petitioner might allege insufficient facts to justify relief under the Electoral Act but nevertheless contend that, as they were the only facts upon which the petitioner relied, the requirements of s 355(a) were satisfied. The Court would then be required to try the petition, even though, on its face, it could not succeed (Sykes v Australian Electoral Commission at 649).
30. If the facts relied on by a petitioner would, if established, constitute an illegal practice within the meaning of s 352(1), s 362 would apply. If the facts would, if established, fall within s 362(3), then the petitioner must set out facts that, if proved, could satisfy the Court that the result of the election was likely to be affected. That is, by virtue of s 355(a), the petitioner must set out the material facts upon which he relies to establish that likelihood. Positive satisfaction in that regard is a condition of the Court’s power to invalidate the election (Hansen v Australian Electoral Commission [2000] FCA 606 at [13] and Whitby v Garlett (2000) 98 FCR 385 at [20]).
31. If a valid nomination were rejected, there would be a contravention of the Electoral Act and, for that reason, there would be an illegal practice on the part of the officer to whom the nomination was made. However, that would not be a sufficient basis under s 362(3) to declare the relevant election void. Before that could be done, the Court must also be satisfied that the result of the election was likely to be affected. The petition must therefore set out facts that would justify the Court in being so satisfied (Sykes v Australian Electoral Commission at 650-651). Under s 362, the Court, before granting relief, must be satisfied that the result of the election was likely to be affected by the illegal practice. Under s 355(a), the petitioner must set out the material facts upon which the petition relies to establish that likelihood. If a petition fails to do so, the appropriate order is that no proceedings be had on the petition and that the petition be dismissed (Sykes v Australian Electoral Commission at 652).
32. It is clear from s 362 and s 365 that, apart from bribery or undue influence by the successful candidate, the minimum assertion necessary to constitute a fact that will invalidate an election or return for the purposes of s 355(a) is an assertion raising a matter or matters by which the election was likely to be affected. In general terms, that can only be satisfied by an assertion that goes to, or bears upon, the casting or counting of votes (Webster v Deahm [1993] HCA 38; (1993) 116 ALR 223 at 225). A bare assertion of undue influence does not satisfy s 355(a) in so far as that provision requires that the petition set out facts relied upon to justify the relief sought. So far as a petition consists of a bare assertion of undue influence, it does not comply with s 355(a) (Webster v Deahm at 227).
33. 33 An allegation that, contrary to s 338 of the Electoral Act, persons unlawfully marked ballot papers to which they were not entitled, in that there were between 100 and 370 instances where the roll was marked more than once for particular voters, does not satisfy s 355(a). The marking of the roll in the manner indicated, standing alone, does not go to the casting or counting of votes. On the other hand, such an assertion identifies the matter on which the petitioner relies, namely, that some votes, possibly as many as 370, were cast by persons who had already voted, or were otherwise not entitled to vote. That raises a matter that, if made out, would be capable of affecting the election result, either alone, depending upon the number of votes involved, or, perhaps, in combination with other matters raised in the petition (Webster v Deahm at 228). An allegation must involve a statement of fact bearing on the casting or counting of votes. If it does not, it does not raise any matter that could invalidate the election result and, on that account, does not comply with s 355(a) (Webster v Deahm at 234).

THE PROCEEDING

34. On 17 September 2010, following the election on 21 August 2010, the Commission certified Mr Bradbury as the candidate elected and returned for the division of Lindsay. The Petitioner filed the Petition in the High Court on 27 October 2010, which is within the 40 day period limited by s 355(e). The Petition included a statement of facts, which is set out in Schedule 1 to these reasons. By the Petition, the Petitioner claimed, relevantly:
    • a declaration that certain postal vote applications lodged with the District Returning Officer by Mr Bradbury were invalid and that any votes cast by the relevant electors were invalid;

• a declaration that Mr Bradbury was not duly elected;

• an order for a recount of votes;

• alternatively, a declaration that the election in the division of Lindsay was absolutely void.

35. On 25 November 2010, the High Court ordered that the Petition be referred to the Federal Court of Australia for trial. By notice of motion dated 13 December 2010, the Commission applied to the Federal Court for an order that the Petition be dismissed on the basis that it does not set out the facts relied on to invalidate the election or return as required by s 355(a). Alternatively, the Commission asked that certain paragraphs of the statement of facts be dismissed on the basis that they do not allege any illegal practice within the meaning of s 352 and do not give rise to any basis upon which the Court could grant the relief sought in the Petition. By notice of motion also dated 13 December 2010, Mr Bradbury applied for the reference to the Australian Labor Party (NSW branch) in the Petition to be struck out, and for an order that the Petition be dismissed. Alternatively Mr Bradbury asked for orders that particular paragraphs of the statement of facts and prayers for relief be struck out.
36. The Petitioner also applied, by notice of motion dated 14 December 2010, for interlocutory orders for the further prosecution of the Petition. The Court directed that the applications by the Commission and by Mr Bradbury be dealt with first, on the basis that, if they were successful, there would be no utility in granting the interlocutory relief sought by the Petitioner.
37. Mr Bradbury contends that the statement of facts included in the Petition does not satisfy s 355(a) and that allegations in it are legally misconceived, such that the Petition does not set out facts that are capable of invalidating the election of Mr Bradbury. The Commission contends that the Petition does not set out facts sufficient to invalidate the election, either on the basis of illegal practice or on the basis of undue influence, and therefore fails to meet the requirement of s 355(a).

THE DEFICIENCIES IN THE PETITION

38. In dealing with the issues raised by the motions, it is necessary to bear in mind the distinction drawn in s 362 of the Electoral Act between bribery and undue influence, on the one hand, and illegal practice, other than bribery or corruption, on the other hand. If the Court finds that a successful candidate has committed or attempted to commit bribery or undue influence, the election must be declared void under s 362(1). However, under s 362(3), the Court must not declare that a person has not been duly elected or declare an election void on the ground of any illegal practice, other than 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.
39. In the Petition, the Petitioner sets out facts that are said to constitute the committing of undue influence or the attempt to commit undue influence by Mr Bradbury. The contention of Mr Bradbury and the Commission is that the facts alleged are not capable of constituting undue influence or bribery and that therefore, in order to obtain the relief claimed, it is necessary to rely on s 362(3). They say, however, that the Petition does not set out facts on the basis of which the Court could be satisfied that the result of the election of Mr Bradbury was likely to be affected by illegal practice as alleged in the Petition. Accordingly, they say, s 355(a) has not been complied with and no proceedings can be had on the Petition. If that is so, the appropriate course is for the Court to dismiss the Petition.
40. The statement of facts relied on to invalidate the election, which s 355(a) requires, cannot be amended if 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 a petition to be filed within that time (Sykes v Australian Electoral Commission at 648). Thus, if s 355(a) has not been complied with, that will be fatal to the success of the Petition and it would follow that there should be an order that there be no proceedings had on the petition. It would therefore be appropriate to order that the Petition be dismissed summarily.
41. There is no allegation in the Petition of bribery as such. However, paragraph 28 asserts that Mr Bradbury received certain benefits on the understanding that his opposition to the Petitioner as a candidate in the election would be influenced or affected, in contravention of s 326(1)(c). In s 352(1), bribery is defined as a contravention of s 326. Thus, there is implicit in paragraph 28 an allegation of bribery. If bribery is made out, the Court would be required under s 362(1) to declare the election of Mr Bradbury void. Mr Bradbury responds, however, that the facts alleged in paragraph 28 are not capable of constituting a contravention of s 326 and that, accordingly, those facts, even if made out, do not satisfy s 355(a).
42. The Petitioner also alleges, in paragraph 31, that Mr Bradbury committed or attempted to commit undue influence, which is, in effect, an allegation of a contravention of s 327 or s 28 of the Crimes Act 1914 (Cth). The Petitioner placed no reliance upon contravention of the Crimes Act. He relies only on s 327 of the Electoral Act. Mr Bradbury contends that the facts alleged are not capable of constituting a contravention of s 327 and that, accordingly, s 355(a) is not satisfied in relation to the claim for a declaration of the election as void under s 362(1).
43. Finally, in relation to each of the separate allegations of illegal practice, being contraventions of the Electoral Act in various respects other than bribery and undue influence, it would be necessary for the Petition to set out facts that, if proved, would support a conclusion that the result of the election was likely to be affected by the illegal practice. While the Petition asserts in paragraphs 20, 24 and 29 that the election was likely to be affected, there is no specific assertion that the result of the election was likely to be affected. More particularly, Mr Bradbury complains, there is no fact set out to support the contention that the result of the election was likely to be affected by the illegal practices alleged, but merely the bare assertion that the election was likely to be affected.

Bribery

44. The specific allegation is that Mr Bradbury contravened s 326(1)(c) of the Electoral Act. The effect of that provision is that a person must not ask for, receive or obtain any property or benefit of any kind, whether for the same or any other person, on an understanding that any support of, or opposition to, a candidate, a group of candidates or a political party, by the first-mentioned person, will in any manner be influenced or affected. The language of that provision demonstrates that the support or opposition that is sought to be influenced must be that of the person who is said to have received or obtained the benefit.
45. The allegation in paragraph 28 of the Petition is that Mr Bradbury received a benefit, being the saving in printing costs and the use of the Lindsay electorate office, on the understanding that Mr Bradbury’s opposition to the Petitioner and the other candidates in the election would be influenced or affected. The first particular of that assertion is that Mr Bradbury received the benefit knowing that the adapted ALP form and envelope forwarded to electors would influence electors favourably to Mr Bradbury. Thus, the allegation is that electors, not Mr Bradbury, would be influenced. However, s 326(1)(c) requires that the person who will be influenced and the person who is alleged to be receiving the benefit, namely Mr Bradbury, would be one and the same. Any alleged influence on the electors is irrelevant for the purposes of s 326(1)(c).
46. The second particular is that the electors who received an apparently valid application form for a postal vote were influenced or affected, such that those using the adapted ALP form provided their names and addresses to Mr Bradbury, thereby giving him preferred access to such electors and an opportunity to conduct a targeted campaign in relation to their votes, to the exclusion of other candidates in the election. Again, that particular alleges that electors would be influenced or affected, which is irrelevant for the purposes of s 326(1)(c).
47. Thus, the particulars of influence or affectation given of the allegation in paragraph 28 describe influence or affectation that falls outside the terms of s 326(1)(c). Therefore, they are incapable of supporting the allegation of bribery. Accordingly, there is no more than a bare assertion of a contravention of s 326, without any relevant allegations of fact. Accordingly, the allegation of bribery fails to set out facts that satisfy s 355(a).

Undue Influence

48. Paragraph 31 of the Petition asserts that, by reason of the matters alleged in paragraphs 21, 26, 27 and 28, Mr Bradbury has committed or attempted to commit undue influence. Only paragraph 21 asserts a contravention of s 327. Paragraphs 26, 27 and 28 variously allege breaches of s 326 and s 328 of the Electoral Act and s 48 and s 49 of the Constitution. Since undue influence is defined as meaning a contravention of s 327, the other paragraphs appear to have no relevance to the allegation of undue influence in paragraph 31.
49. Section 327(1) prohibits a person from hindering or interfering with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under the Act. The relevant right or duty is said to be the right to vote and the duty to do so as prescribed by the Electoral Act. The right to vote is protected by s 327 (Hudson v Entsch [2005] FCA 460; 216 ALR 188 at [49]). The duty to vote is also covered by s 327(1).
50. The Petitioner says that the persons said to have been hindered or interfered with are the 2,504 persons who received the adapted ALP form, completed one of the duplicate sections of the form and then entrusted the application to Mr Bradbury by forwarding it to the Lindsay electorate office in the envelope. Paragraph 21 of the Petition asserts that the free exercise or performance of the right and duty of those persons to vote was hindered or interfered with by the eight representations alleged to have been made by Mr Bradbury. However, the Petition does not state facts as to when, where and how the alleged representations were made. There are no more than generalised assertions or conclusions from unspecified facts.
51. In addition, the representations are said to be in error, misleading, deceptive, confusing or likely to mislead or deceive. However, paragraph 21 does not state any facts that would establish that any of the representations was false or in error, misleading, deceptive, confusing or likely to mislead or deceive. In so far as paragraph 22 asserts that Mr Bradbury intended to mislead or deceive postal vote applicants to affect the election result, no fact to support such a conclusion is set out.
52. Importantly, the Petition does not allege any facts that would establish that any of the representations, even if they were made out and were shown to be false or misleading, hindered or interfered with the free exercise of the performance by any elector of the right or duty to vote. The Petition merely asserts such hindrance or interference as a consequence of each such representation or all of the representations taken together. No fact is alleged to suggest that any of the electors in question was prevented from voting or that any of the electors was prevented from voting for that elector’s preferred candidate.

Illegal practices likely to affect the result of the election

53. Assuming that the Petition sets out facts that are capable of constituting illegal practice, being a contravention of the Electoral Act or the regulations made under the Electoral Act, it is still necessary for the Petition to set out facts that can give rise to the conclusion, if proved, that the result of the election was likely to be affected by the illegal practices. In the case of alleged absence or error of or omission by any officer, that requires setting out facts that could support the conclusion that the result of the election was affected. That requires an assertion that goes to or bears upon the casting or counting of votes. The facts set out in a petition must be such, if true, as would indicate that there is a real chance that the result of the election would be different if the allegedly illegal practice had not occurred (Kelly v Campbell [2002] FCA 1125 at [20]).
54. The Petition does not allege any fact regarding the actual votes cast in the election, such as the number of primary, two party preferred or postal votes cast for each candidate, or the margins between the candidates. Further, the Petition fails to allege any facts that would provide a basis for drawing an inference that the outcome of the election might have been different if any of the alleged illegal practices or alleged errors had not occurred. The only number alleged in the petition is that 2,504 people sent to Mr Bradbury a postal vote application. That figure, by itself, is not capable of supporting an inference that the result of the election was likely to have been affected or that it was affected. The Petition merely makes bare assertions without setting out any underlying facts to support the assertions. The allegations in relation to illegal practices and errors therefore do not satisfy the terms of s 355(a) as to the requirement that they are likely to have an effect on the result of the election or that they affected the result of the election.
55. The Petitioner contends that the requirement of s 355(a) in relation to the likely effect of illegal practice on the result of the election is satisfied by paragraphs 19 and 20 of the statement of facts. In paragraph 19, the Petitioner alleges that each vote cast by an elector who applied for a postal vote on the adapted ALP form or the altered ALP form was invalid. He asserts that such an allegation bears upon the casting of votes. Paragraph 20 then asserts that the ballots cast by electors who used the adapted ALP form or the altered ALP form involved an illegal practice whereby the election was likely to be affected. The Petitioner says that could only be because the electors were disenfranchised by the conduct of Mr Bradbury and the Commission. However, while there is an assertion that 2,504 electoral votes were invalid, there is no allegation as to Mr Bradbury’s majority. In any event, the 2,504 electors in fact voted.
56. The Petitioner foreshadowed further particulars to the Statement of Facts in the Petition, as indicated in Schedule 2 to these reasons. However, many of those particulars add additional facts rather than simply providing further particularisation of facts already alleged in the Petition. For example, proposed additional particulars to paragraph 20 assert that Mr Bradbury’s wining margin of 1,026 votes is less than the minimum number of invalid votes contended for, of 2,504. The contention appears to be that the majority, if not all, of the allegedly invalid votes were cast in favour of Mr Bradbury, or a candidate whose preferences went to Mr Bradbury. Otherwise, their invalidity could not have any effect on the result of the election. The same particulars are proposed in relation to paragraphs 24 and 29. In each of paragraphs 20, 24 and 29 there is a bare assertion that, by reason of an alleged illegal practice, the election was likely to be affected. The additional particulars could not be allowed in so far as they add additional facts that were not asserted within the 40 day period limited by s 533(e).

Other complaints

57. Mr Bradbury makes other complaints about deficiencies in the language of the petition. For example, paragraphs 26 and 27 are more or less incomprehensible. Both paragraphs refer to ss 48 and 49 of the Constitution. Section 48 provides that, until the Parliament otherwise provides, each senator and member of the House of Representatives is to receive an allowance of four hundred pounds a year. Section 49 provides that the powers, privileges and immunities of the Senate and of the House of Representatives and of the members and the committees of each house are to be such as are declared by the Parliament and, until declared, are to be those of the Commons House of Parliament of the United Kingdom and of its members and committees. The allegations in paragraph 26 could not possibly constitute a contravention of those provisions. The allegations in paragraph 27, that those provisions were impaired, is nonsensical.

DISCRETION

58. The Petitioner contends that, even if the Court is not persuaded that there has been compliance with s 355(a), the Court has a discretion to allow the Petition to proceed to trial. He points to the requirement in s 360(2) that the Court exercise its powers on such grounds as in its discretion it thinks just and sufficient. He also points to the requirement in s 355(e) that a petition be filed within 40 days of the return of the writ as indicating a relatively short period within which to satisfy the requirements of s 355.
59. I consider that the terms of s 358(1) are mandatory in the sense that there is no discretion reserved to the Court to ignore the exhortation and direction found in s 358(1). The 40 day limit is a reason why s 358(1) requires compliance with s 355(a) before a proceeding can be had on a petition. There are good policy reasons why there should be certainty as to the result of an election as soon as possible. The injunction in s 363A that a decision should be made as quickly as is reasonable indicates a requirement that there be certainty as to the result of an election as soon as possible. The fact that there is to be no right of appeal is also significant in terms of the final resolution of a petition that does not comply with s 355(a).
60. While the Court has power, under s 358(2), to relieve a petitioner from compliance with s 355(aa), the Court cannot relieve the petitioner from compliance with s 355(a). The express power given by s 358(2) in relation to s 355(aa) indicates that there is no discretion in relation to a failure to comply with s 355(a). If a petition does not comply with s 355(a), it is incurably bad and the Court has no discretion to decline to follow the injunction contained in s 358(1).

MISJOINDER

61. There is no legal entity by the name ‘Australian Labor Party’ or ‘Australian Labor Party (NSW branch)’. There are political organisations known by those names. However, they are unincorporated associations of individuals. While the existence of such organisations is recognised by the Electoral Act, there is nothing in the Electoral Act that has the effect of treating such an organisation as a body corporate. Such organisations as the Australian Labor Party or Australian Labor Party (NSW branch) are not juristic entities and cannot be parties to any action (Watson v J & A G Johnson Limited [1936] HCA 73; (1936) 55 CLR 63 at 67, 68 and 71). Unlike the case of registered organisations, such as trade unions, under the Fair Work (Registered Organisations) Act 2009 (Cth), political parties registered under the Electoral Act are not thereby constituted as bodies corporate or otherwise accorded legal entity status.
62. In any event, no such organisation, even if it were a juristic entity, would be a necessary or proper respondent to the Petition. While the members of the organisation may have an interest in the outcome of the election their interest could not be in any way different from that of Mr Bradbury. No relief is sought against the second respondent and the Petitioner was unable to advance any basis upon which some forensic advantage would be obtained from having a political organisation as a respondent to the Petition. Even if the Petition were to proceed to trial, it would be appropriate that the reference to Australian Labor Party (NSW branch) as a respondent be removed.
63. The Petitioner sought in the alternative that an official of the relevant organisation be joined as a representative party for the members of the organisation. For the same reasons, it would have been inappropriate for Mr Dastyari to be joined.

CONCLUSION

64. I have concluded that the petition in its present form does not comply with s 355(a) or s 355(aa). The Petitioner has asked that, before any order is made on the motions, he be given the opportunity of considering my reasons. However, there is no dispensation under s 358(2) that could overcome the deficiencies in complying with s 355(a).
65. It follows that there should be an order that there be no proceeding had on the petition and that the petition be dismissed. I propose to hear the parties further on the question of costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 9 February 2011

SCHEDULE 1
STATEMENT OF FACTS IN THE PETITION

1. On 17 July 2010 the Prime Minister announced a general election for the House of Representatives and a half Senate election in each of the States and Territories represented in the Senate.
2. On or about 17 July 2010 the Australian Electoral Commission [the AEC] and the Divisional Returning Officer for the electoral division of Lindsay [the DRO] announced the following dates with respect to the election:

a. Issue of the writ: Monday 19 July 2010

b. Deadline to enrol: 8pm Monday 19 July 2010

c. The close of the Rolls: 8pm Thursday 22 July 2010

d. Close of nominations: 12 noon Thursday 29 July 2010

e. Polling day – Saturday 21 August 2010

f. The last date for the return of the writs – Wednesday 27 October 2010.
3. On 17 September 2010 the AEC certified on the writ for the election in Lindsay the First Respondent as the candidate elected and returned the writ declaring the First Respondent as elected.
4. The return is disputed pursuant to Commonwealth Electoral Act 1918 [the Act] Part XXII on the grounds set forth below.
5. On 2 June 2010 the assistant electoral commissioner Ms Marie Neilson on behalf of the AEC and pursuant to section 184(1) of the Act revoked the previous approved form for postal vote applications made under Part XV of the Act form EF 048 1/1020 and made approved form EF 048 5/2010 which was duly gazetted in the Commonwealth Government Gazette No
23 of 2010 on 16 June 2010 [referred to as the approved form].
6. On 17 July 2010 the First Respondent by her servants or agents forwarded by post or hand delivery to every residence in the electoral division of Lindsay with a view to electors in Lindsay receiving reading and being influenced by electoral matter entitled “To the Householder”:

Particulars

(a) Postal Voting Information for the electorate of Lindsay described as “Important”;

(b) A postal voting “Hotline” which gave as the telephone number the electorate office of the MHR for Lindsay;

(c) A simplified pictorial diagram of how to apply for a postal vote in 4 easy steps;

(d) An adaptation of the approved form in duplicate;

(e) The Petitioner will after discovery and interrogatories contend that the electoral matter included the Commonwealth coat of arms as occurred in similar material issued by or for other seats held in NSW by the Second Respondent or its candidates.

(f) Part of the form was perforated.

[the whole is referred to as the adapted ALP form]
7. Delivered with each adapted ALP form was a pre-addressed pre-paid envelope containing the address of the federal electorate office of the MHR for Lindsay [the envelope].
Invalid Votes/illegal practice
8. Between about 19 July 2010 and 19 August 2010 2504 persons who had received the adapted ALP form influenced thereby apparently completed one of the duplicate sections of the form and then entrusted the application to the First Respondent by either forwarding the said section or the adapted ALP form to the electorate office of the MHR for Lindsay in
the envelope.
9. At the electorate office under the direction of the First Respondent or her servants or agents the ALP adapted form was removed from the envelope, the identity of the applicant recorded, and one portion of the duplicate section of the form removed by tearing the section from the ALP adapted form and collating same into a bundle.
10. Every few days after 19 July 2010 the First Respondent her servants or agents delivered that part of the adapted ALP form which contained one of the duplicate sections to the DRO [referred to as the altered ALP form] and thereby and purportedly on behalf of the applicants named on each altered ALP form applied for a postal vote in writing to the DRO.
11. Thereafter the DRO purportedly acting pursuant to the Act but without any authority under the Act issued to each applicant apparently applying for postal votes in the altered ALP form in the name of a person on the electoral roll for the division of Lindsay, a certificate and ballot papers for the Senate and the electoral division of Lindsay by posting to the address
specified on the form or the address otherwise on the electoral roll the certificate and the ballot papers for the division and the Senate.
12. None of the applications for a postal vote in the adapted ALP form or in the altered ALP form was an application for a postal vote in the approved form to the DRO referred to in the Act section 184 or at all.
13. Each application made in the adapted ALP form or the altered ALP form was invalid and each vote cast be each applicant as a consequence of the application was invalid.
14. Further, some applicants after receiving the adapted ALP form delivered the form intact to the DRO and there had the application attested by a member of the staff of the DRO or in advance altered the form by removing the duplicate section of the said form before making the application, and in every such case the application was made by the applicant on the altered ALP form.
15. Each such application made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
16. Further, a number of the applications on the altered ALP form were not properly signed and witnessed.
Particulars

(a) Some of the applications appeared to have been written up by several different hands on different occasions;

(b) Some of the applications did not identify the name or the address of the witness;

(c) Some signatures of applicants were obscure or impossible of verification.
17. Each such application not properly signed or witnessed and made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
18. Further, none of the applications for a postal vote made by the applicants on the adapted ALP form or the altered ALP form contained a declaration duly attested that each applicant was an elector, whether in the division of Lindsay or for the Senate of New South Wales or at all, as required by the Act section 184(1)(a).
19. Each application in the adapted ALP form or in the altered ALP form not containing such declaration was invalid and each vote cast by each applicant as a consequence of the application was invalid.
20. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said votes should have been excluded from the scrutiny and the count whereby this Honourable Court should order a recount excluding the said ballots or declare the election of the First Respondent void and/or the election in the division void.
Interference in Political Liberty/ illegal practice
21. Further to the foregoing, the First and/or Second Respondent hindered or interfered with the free exercise or performance by the electors and the said applicants referred to in paragraph 8 of any political right or duty that is relevant to an election in contravention of the Act section 327(1), namely the right to vote and the duty to do so as prescribed by the Act.

Particulars

(a) The First Respondent represented to the householders and electors of Lindsay that the adapted ALP form was an approved form of application for a postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material;

(b) The First Respondent represented to the householders and electors of Lindsay that the adapted ALP form was an effectual form of application for a valid postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material;

(c) The First Respondent represented to the applicants for a postal vote receiving the ALP form that in the circumstances in which it was issued that the adapted ALP form was issued with the approval of the Commonwealth or was an official document in relation to postal voting and the election in Lindsay or that the First Respondent was properly affiliated with or associated with the Commonwealth and/or the AEC which was in error and misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material;

(d) The First Respondent represented to the applicants for a postal vote receiving the adapted ALP form that the First Respondent had the right to the use of the Commonwealth coat of arms which official marks were not approved for use by the First Respondent in the election campaign in Lindsay by the grantor of the said coat of arms or by any protocol of the Commonwealth or at all such that the use of the said official marks and coat of arms was misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material;

(e) The First Respondent represented to the householders and electors of Lindsay that the information provided to electors by the “Voting Hotline” was as equally independent and informative and accurate as that of the AEC, which was confusing in the context of the electoral material and the misuse of the approved form in the adapted ALP form and which was in error and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material;

(f) The First Respondent represented to the householders and electors of Lindsay that the First Respondent was lawfully entitled to use the electorate office facilities as the First Respondent’s campaign office and the office contact details and facilities as a ‘Voting Hotline’ and that the electoral material including the adapted ALP form and envelope were properly and lawfully funded publicly or paid for by the Commonwealth which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material;

(g) The First Respondent represented to the householders and electors of Lindsay that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Lindsay’s electorate office would be treated as if it were received by the AEC which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material.

(h) The First Respondent misrepresented to the electors the grounds of eligibility for obtaining a postal vote and the entitlement to obtain a postal vote in the adapted ALP form.

(i) As a consequence of each such representation and / or taken together the electors and applicants were hindered or interfered with in the free exercise or performance of political right or duty relevant to the election.
22. It was the intention of the First Respondent in making each of the representations referred to in paragraph 21 to mislead or deceive the applicants using the adapted ALP form and thereby to affect the result in the electoral division of Lindsay in the First Respondent’s favour.
23. Further or alternatively to paragraph 21 in the period between the issue of the writ and polling day the First and/or Second Respondent caused or permitted to be printed electoral matter that is likely to mislead or deceive an elector in relation to the casting of a ballot in contravention of the Act section 329(1).

Particulars
The Petitioner repeats the particulars in paragraph 21.

24. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Lindsay is void.
Use of Entitlements Contrary to Law and Good Practice/ illegal practice
25. In contravention of the Act section 328, the First Respondent caused or authorised or permitted to be printed published and distributed the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice without the name and address of the person who authorised the advertisement handbill pamphlet or
notice appearing at the end thereof.
26. In contravention of the Constitution sections 48 and 49 the First Respondent has used the allowance of the MHR for Lindsay to cause or authorise or to permit to be printed published and distributed to the householders and the electors of Lindsay the adapted ALP form being
electoral matter that was an electoral advertisement handbill pamphlet or notice and used same in the election.
27. Further or alternatively to paragraph 26 any law or practice which purports to authorise or validate the expense of the saving of expense by the First Respondent in the campaign in respect of the electoral matter for the printing publishing or distribution of the said adapted ALP form is invalid as impairing the right to vote and /or the Constitution sections 48 and/or
28. Further or alternatively the First Respondent and / or Second Respondent received a benefit namely the cost of or saving of printing the adapted ALP form and/or the use of the MHR for Lindsay’s electorate office and ‘Hotline’ on the understanding that the First Respondent’s opposition to the Petitioner as a candidate or all the other candidates in the election or the party of the Petitioner being the Christian Democrat Party or the party of the other party candidates in the election for Lindsay will in any manner be influenced or affected, in contravention of the Act section 326(1)(c).
Particulars of influence or affectation

(a) The First and/or Second Respondents received the benefit knowing that the adapted ALP form and envelope forwarded at the commencement of the election period would influence electors favourably to the First Respondent’s campaign for election;

(b) The electors of Lindsay who received an apparently valid application form for a postal vote from or with the authority and consent of the First Respondent saving them the expense and trouble of obtaining an approved form from the DRO or downloading same from the internet site of the AEC together with a pre-paid envelope for the purpose of entrusting the application to the First Respondent were influenced or affected such that those using the adapted ALP form provided their names and addresses to the First Respondent thereby giving personal information, and preferred and exclusive access to such electors, to the First Respondent, and an opportunity to conduct a targeted campaign in relation to the votes of such persons to the exclusion of all other candidates and parties in the election;

(c) The Petitioner will refer to the ANOA Audit Report 2009-2010 ‘Administration of Parliamentarians Entitlements’ and will apply to have produced to the Court documents and electoral matter in relation thereto.
29. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Lindsay is void.
Undue Influence
30. The Petitioner repeats paragraphs 21, 26, 27 and 28.
31. In the premises the First Respondent has committed or attempted to commit undue influence in the election, within the meaning of the Act sections 352(1) and 362(1).
32. The election of the First Respondent should be declared void pursuant to the Act section 362(1).

SCHEDULE 2
PROPOSED AMENDED STATEMENT OF FACTS

1. On 17 July 2010 the Prime Minister announced a general election for the House of Representatives and a half Senate election in each of the States and Territories represented in the Senate.
2. On or about 17 July 2010 the Australian Electoral Commission [the AEC] and the Divisional Returning Officer for the electoral division of Lindsay [the DRO] announced the following dates with respect to the election:

a. Issue of the writ: Monday 19 July 2010

b. Deadline to enrol: 8pm Monday 19 July 2010

c. The close of the Rolls: 8pm Thursday 22 July 2010

d. Close of nominations: 12 noon Thursday 29 July 2010

e. Polling day – Saturday 21 August 2010

f. The last date for the return of the writs – Wednesday 27 October 2010.
3. On 17 September 2010 the AEC certified on the writ for the election in Lindsay the First Respondent as the candidate elected and returned the writ declaring the First Respondent as elected.

Particulars
According to the AEC ‘virtual tally room’ the two candidate preferred result
was Bradbury 37,206 votes and Scott 36,180 votes a difference of 1,026

4. The return is disputed pursuant to Commonwealth Electoral Act 1918 [the Act] Part XXII on the grounds set forth below.
5. On 2 June 2010 the assistant electoral commissioner Ms Marie Neilson on behalf of the AEC and pursuant to section 184(1) of the Act revoked the previous approved form for postal vote applications made under Part XV of the Act form EF 048 1/1020 and made approved form EF 048 5/2010 which was duly gazetted in the Commonwealth Government Gazette No
23 of 2010 on 16 June 2010 [referred to as the approved form].
6. On 17 July 2010 the First Respondent by his servants or agents forwarded by post or hand delivery to every residence in the electoral division of Lindsay with a view to electors in Lindsay receiving reading and being influenced by electoral matter entitled “To the Householder”:

Particulars

(a) Postal Voting Information for the electorate of Lindsay described as “Important”;

(b) A postal voting “Hotline” which gave as the telephone number the electorate office of the MHR for Lindsay;

(c) A simplified pictorial diagram of how to apply for a postal vote in 4 easy steps;

(d) An adaptation of the approved form in duplicate;

(e) The Petitioner will after discovery and interrogatories contend that the electoral matter included the Commonwealth coat of arms as occurred in similar material issued by or for other seats held in NSW by the Second Respondent or its candidates.

(f) Part of the form was perforated.

[the whole is referred to as the adapted ALP form]
7. Delivered with each adapted ALP form was a pre-addressed pre-paid envelope containing the address of the federal electorate office of the MHR for Lindsay [the envelope].
Invalid Votes/illegal practice
8. Between about 19 July 2010 and 19 August 2010 2504 persons who had received the adapted ALP form influenced thereby apparently completed one of the duplicate sections of the form and then entrusted the application to the First Respondent by either forwarding the said section or the adapted ALP form to the electorate office of the MHR for Lindsay in
the envelope.
9. At the electorate office under the direction of the First Respondent or his servants or agents the ALP adapted form was removed from the envelope, the identity of the applicant recorded, and one portion of the duplicate section of the form removed by tearing the section from the ALP adapted form and collating same into a bundle.
10. Every few days after 19 July 2010 the First Respondent his servants or agents delivered that part of the adapted ALP form which contained one of the duplicate sections to the DRO [referred to as the altered ALP form] and thereby and purportedly on behalf of the applicants named on each altered ALP form applied for a postal vote in writing to the DRO.
11. Thereafter the DRO purportedly acting pursuant to the Act but without any authority under the Act issued to each applicant apparently applying for postal votes in the altered ALP form in the name of a person on the electoral roll for the division of Lindsay, a certificate and ballot papers for the Senate and the electoral division of Lindsay by posting to the address specified on the form or the address otherwise on the electoral roll the certificate and the ballot papers for the division and the Senate.

Particulars
The DRO issued ballot papers to the applicants under section 18-8 of the
Act who had not applied in the correct form as set out herein

12. None of the applications for a postal vote in the adapted ALP form or in the altered ALP form was an application for a postal vote in the approved form to the DRO referred to in the Act section 184 or at all.

Particulars
Neither the adapted ALP form nor the altered ALP form was the
approved form nor was either in the approved form

13. Each application made in the adapted ALP form or the altered ALP form was invalid and each vote cast be each applicant as a consequence of the application was invalid.
14. Further, some applicants after receiving the adapted ALP form delivered the form intact to the DRO and there had the application attested by a member of the staff of the DRO or in advance altered the form by removing the duplicate section of the said form before making the application, and in every such case the application was made by the applicant on the altered ALP form.
15. Each such application made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.
16. Further, a number of the applications on the altered ALP form were not properly signed and witnessed.
Particulars

(a) Some of the applications appeared to have been written up by several different hands on different occasions;

(b) Some of the applications did not identify the name or the address of the witness;

(c) Some signatures of applicants were obscure or impossible of verification.
17. Each such application not properly signed or witnessed and made in the altered ALP form was invalid and each vote cast by each applicant as a consequence of the application was invalid.

Particulars
There are about 50 votes cast as the consequence of postal vote
applications not properly signed or witnessed

18. Further, none of the applications for a postal vote made by the applicants on the adapted ALP form or the altered ALP form contained a declaration duly attested that each applicant was an elector, whether in the division of Lindsay or for the Senate of New South Wales or at all, as required by the Act section 184(1)(a).
19. Each application in the adapted ALP form or in the altered ALP form not containing such declaration was invalid and each vote cast by each applicant as a consequence of the application was invalid.
20. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said votes should have been excluded from the scrutiny and the count whereby this Honourable Court should order a recount excluding the said ballots or declare the election of the First Respondent void and/or the election in the division void.

Particulars
1026 votes [the winning margin] is less than 2504 votes [the minimum
number of invalid votes contended for herein]

Interference in Political Liberty/ illegal practice
21. Further to the foregoing, the First and/or Second Respondent hindered or interfered with the free exercise or performance by the electors and the said applicants referred to in paragraph 8 of any political right or duty that is relevant to an election in contravention of the Act section 327(1), namely the right to vote and the duty to do so as prescribed by the Act.

Particulars

(a) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Lindsay that the adapted ALP form was an approved form of application for a postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material;

(b) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Lindsay that the adapted ALP form was an effectual form of application for a valid postal vote which was in error and misleading or deceptive or confusing and likely to mislead or deceive the recipient of the said electoral material;

(c) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the applicants for a postal vote receiving the ALP form that in the circumstances in which it was issued that the adapted ALP form was issued with the approval of the Commonwealth or was an official document in relation to postal voting and the election in Lindsay or that the First Respondent was properly affiliated with or associated with the Commonwealth and/or the AEC which was in error and misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material;

(d) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the applicants for a postal vote receiving the adapted ALP form that the First Respondent had the right to the use of the Commonwealth coat of arms which official marks were not approved for use by the First Respondent in the election campaign in Lindsay by the grantor of the said coat of arms or by any protocol of the Commonwealth or at all such that the use of the said official marks and coat of arms was misleading or deceptive and confusing or likely to mislead or deceive the recipient of the said electoral material;

(e) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Lindsay that the information provided to electors by the “Voting Hotline” was as equally independent and informative and accurate as that of the AEC, which was confusing in the context of the electoral material and the misuse of the approved form in the adapted ALP form and which was in error and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material;

(f) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Lindsay that the First Respondent was lawfully entitled to use the electorate office facilities as the First Respondent’s campaign office and the office contact details and facilities as a ‘Voting Hotline’ and that the electoral material including the adapted ALP form and envelope were properly and lawfully funded publicly or paid for by the Commonwealth which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material;

(g) The First Respondent represented on the date and in the document and by the means set out in paragraph 6 to the householders and electors of Lindsay that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Lindsay’s electorate office would be treated as if it were received by the AEC which was in error or confusing and misleading or deceptive or likely to mislead or deceive the recipient of the said electoral material.

(h) The First Respondent misrepresented on the date and in the document and by the means set out in paragraph 6 to the electors the grounds of eligibility for obtaining a postal vote and the entitlement to obtain a postal vote in the adapted ALP form.

(i) As a consequence of each such representation and / or taken together the electors and applicants were hindered or interfered with in the free exercise or performance of political right or duty relevant to the election in that each vote cast by the applicant electors using the adapted ALP form and the altered ALP form as set out in paragraphs 6 to 20 herein was invalid.
22. It was the intention of the First Respondent in making each of the representations referred to in paragraph 21 to mislead or deceive the applicants using the adapted ALP form and thereby to affect the result in the electoral division of Lindsay in the First Respondent’s favour.
23. Further or alternatively to paragraph 21 in the period between the issue of the writ and polling day the First and/or Second Respondent caused or permitted to be printed electoral matter that is likely to mislead or deceive an elector in relation to the casting of a ballot in contravention of the Act section 329(1).

Particulars
The Petitioner repeats the particulars in paragraph 21.

24. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Lindsay is void.

Particulars
1026 votes [the winning margin] is less than 2504 votes [the minimum
number of invalid votes procured by Bradbury as contended herein]

Use of Entitlements Contrary to Law and Good Practice/ illegal practice
25. In contravention of the Act section 328, the First Respondent caused or authorised or permitted to be printed published and distributed the adapted ALP form being electoral matter that was an electoral advertisement handbill pamphlet or notice without the name and address of the person who authorised the advertisement handbill pamphlet or notice appearing at the end thereof.
26. In contravention of the Constitution sections 48 and 49 the First Respondent has used the allowance of the MHR for Lindsay to cause or authorise or to permit to be printed published and distributed to the householders and the electors of Lindsay the adapted ALP form being
electoral matter that was an electoral advertisement handbill pamphlet or notice and used same in the election.
27. Further or alternatively to paragraph 26 any law or practice which purports to authorise or validate the expense or the saving of expense by the First Respondent in the campaign in respect of the electoral matter for the printing publishing or distribution of the said adapted ALP form is invalid as impairing the right to vote and /or the Constitution sections 48 and/or

Particulars of Laws
Parliamentary Allowances Act 1952 ss 4 and 5A; Parliamentary Entitlements Act 1990 ss 4 and 5; Remunerations Tribunal Act 1973 s 7 and the regulations thereunder permitting claims for the printing of the adapted ALP form for the purpose of re-election after the dissolution of the parliament

28. Further or alternatively the First Respondent and / or Second Respondent received a benefit namely the cost of or saving of printing the adapted ALP form and/or the use of the MHR for Lindsay’s electorate office and ‘Hotline’ on the understanding that the First Respondent’s opposition to the Petitioner as a candidate or all the other candidates in the election or the party of the Petitioner being the Christian Democrat Party or the party of the other party candidates in the election for Lindsay will in any manner be influenced or affected, in contravention of the Act section 326(1)(c).
Particulars of influence or affectation

(a) The First and/or Second Respondents received the benefit knowing that the adapted ALP form and envelope forwarded at the commencement of the election period would influence electors favourably to the First Respondent’s campaign for election;

(b) The electors of Lindsay who received an apparently valid application form for a postal vote from or with the authority and consent of the First Respondent saving them the expense and trouble of obtaining an approved form from the DRO or downloading same from the internet site of the AEC together with a pre-paid envelope for the purpose of entrusting the application to the First Respondent were influenced or affected such that those using the adapted ALP form provided their names and addresses to the First Respondent thereby giving personal information, and preferred and exclusive access to such electors, to the First Respondent, and an opportunity to conduct a targeted campaign in relation to the votes of such persons to the exclusion of all other candidates and parties in the election;

(c) The Petitioner will refer to the ANOA Audit Report 2009-2010 ‘Administration of Parliamentarians Entitlements’ and will apply to have produced to the Court documents and electoral matter in relation thereto.
29. In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form were cast in contravention of the Act and/or as the consequence of an illegal practice within the meaning of the Act section 352(1) whereby the election was likely to be affected such that the said election in the division of Lindsay is void.

Particulars
1026 votes [the winning margin] is less than 2504 votes [the minimum
number of invalid votes procured by Bradbury as contended herein]

Undue Influence
30. The Petitioner repeats paragraphs 21, 26, 27 and 28.
31. In the premises the First Respondent has committed or attempted to commit undue influence in the election, within the meaning of the Act sections 352(1) and 362(1).
32. The election of the First Respondent should be declared void pursuant to the Act section 362(1).