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Federal Court of Australia |
Last Updated: 23 February 2011
FEDERAL COURT OF AUSTRALIA
Freemantle v O’Neill [2011] FCA 72
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Citation:
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Freemantle v O’Neill [2011] FCA 72
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Parties:
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File number(s):
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NSD 1665 of 2010
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Judge:
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EMMETT J
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Date of judgment:
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3 February 2011
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Legislation:
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Cases cited:
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Dates of hearing:
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31 January and 1 February 2011
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Place:
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Sydney
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Division:
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GENERAL DIVISION
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Category:
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No catchwords
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Number of paragraphs:
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8
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Counsel for the Petitioner:
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P. E. King
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Solicitor for the Petitioner:
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James R G Bell
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Counsel for the First and Second Respondents:
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B. Walker SC, A. D. Lang
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Solicitor for the First and Second Respondents:
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Slater and Gordon
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Counsel for the Third Respondent:
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G. R. Kennett SC
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Solicitor for the Third Respondent:
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Australian Government Solicitor
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IN THE FEDERAL COURT OF AUSTRALIA
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AND:
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AUSTRALIAN LABOR PARTY (NSW)
Second Respondent AUSTRALIAN ELECTORAL COMMISSION
Third Respondent |
THE COURT ORDERS THAT:
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.
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NEW SOUTH WALES DISTRICT REGISTRY
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GENERAL DIVISION
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NSD 1665 of 2010
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BETWEEN:
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GRAHAM FREEMANTLE
Petitioner |
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AND:
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DEBORAH O’NEILL
First Respondent AUSTRALIAN LABOR PARTY (NSW)
Second Respondent AUSTRALIAN ELECTORAL COMMISSION
Third Respondent |
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JUDGE:
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EMMETT J
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DATE:
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3 FEBRUARY 2011
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
• Ms Deborah O’Neill, the successful candidate in the election,
• “Australian Labor Party (NSW branch)” and
• the Australian Electoral Commission (the Commission).
• a declaration that Ms O’Neill was not duly elected;
• an order for a recount of votes;
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I certify that the preceding eight (8) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Emmett.
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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 Robertson [the DRO] announced
the following dates with respect to the election:
a. The close of the Rolls
b. Polling day – 21 August 2010
c. The last date for the return of the writs – 27 October 2010.
3.
On 17 September 2010 the AEC certified on the writ for the election in Robertson
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 Robertson with a view to electors in Robertson
receiving reading and being influenced by electoral matter entitled “To
the
Householder”:
Particulars
(a) Postal Voting Information for the electoral of Robertson marked with the Commonwealth Coat of Arms and described as “Important”;
(b) A postal voting “Hotline” which gave as the telephone number the electorate office of the MHR for Robertson;
(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) 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 Robertson [the
envelope].
Invalid Votes/illegal practice
8. Between about 19 July
2010 and 19 August 2010 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
Robertson 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 Robertson, a
certificate and ballot papers
for the Senate and the electoral division of Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Robertson’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
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
Robertson 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 Robertson 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
Robertson to cause or authorise or to permit to be printed published and
distributed to the householders and the electors of Robertson 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 49.
28. Further or
alternatively the First and / or Second Respondent received a benefit namely the
cost 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 Banks will in any manner be influenced or
affected, in
contravention of the Act section 326(1)(c).
Particulars of influence or affectation
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 Robertson 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
Robertson [the DRO] announced the following dates with respect to the
election:
a. The close of the Rolls
b. Polling day – 21 August 2010
c. The last date for the return of the writs – 27 October 2010.
3.
On 17 September 2010 the AEC certified on the writ for the election
in
Robertson 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 O’Neill 37,681 votes
and Jameson
35,429 votes a difference of 2,252
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 Robertson with a view to electors in Robertson receiving reading and being
influenced by electoral matter entitled “To
the
Householder”:
Particulars
(a) Postal Voting Information for the electoral of Robertson marked with the Commonwealth Coat of Arms and described as “Important”;
(b) A postal voting “Hotline” which gave as the telephone number the electorate office of the MHR for Robertson;
(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) 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 Robertson Postal Voting
Centre [the envelope].
Invalid Votes/illegal
practice
8. Between about 19 July 2010 and 19 August 2010 2,427 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 Robertson 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 Robertson, a
certificate and ballot papers for the Senate and
the electoral division of Robertson 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.
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 40 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 Robertson 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
2252 votes [the winning margin] is
less than 2427 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson 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 Robertson that an application for a postal vote entrusted to the First Respondent or a communication made to the MHR for Robertson’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
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
Robertson 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 Robertson is void.
Particulars
2252 votes [the winning margin] is
less than 2427 votes [the minimum number of invalid votes contended for
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 Robertson to cause or
authorise or to permit to be printed published and
distributed to the
householders and the electors of Robertson 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 49.
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 and / or Second Respondent received a
benefit namely the cost of printing the adapted ALP form
and/or the use of the
MHR for Robertson’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 Banks will in any manner be influenced or
affected, in contravention of the Act section 326(1)(c).
Particulars of influence or affectation
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 Robertson is void.
Particulars
2252 votes [the winning margin] is
less than 2427 votes [the minimum number of invalid votes contended for
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).
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2011/72.html