Hudson v Lee & Australian Electoral Commission [1993] HCA 39; (1993) 115 ALR 343; (1993) 67 ALJR 720 (6 August 1993)

HIGH COURT OF AUSTRALIA

ROBERT JAMES NEILSON HUDSON (JNR) v. MICHAEL JOHN LEE and THE AUSTRALIAN ELECTORAL COMMISSION
S. 93/007
Number of pages - 4
[1993] HCA 39; (1993) 115 ALR 343
(1993) 67 ALJR 720

HIGH COURT OF AUSTRALIA
Gaudron J (1)

CATCHWORDS

HEARING

SYDNEY, 7 and 30 July 1993
6:8:1993

ORDER

Petition No. S60 of 1993 dismissed.

Liberty to the First and Second Respondents to file in this Court and serve on the Petitioner within seven days written submissions with respect to costs. Liberty to the Petitioner to file and serve on the First and Second Respondents within seven days of such service written submissions in reply.

DECISION

GAUDRON J Robert James Neilson Hudson (Jnr) ("the Petitioner") lodged a Petition in this Court, sitting as the Court of Disputed Returns, pursuant to s.353(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act"), disputing the election of Michael John Lee ("the respondent") as the member for the Commonwealth Electoral Division of Dobell, at the House of Representatives elections held on 13 March 1993. The ground asserted in the Petition is that the respondent "use(d) (taxpayer funded) Benefit/Entitlements directly for his and the Australian Labor Party's campaign". That, according to the Petition, is illegal because it was use "for Party Political Business".

2. It appears from the Petition and a subsequent affidavit of the Petitioner that his complaint is restricted to the use by the respondent of his Parliamentary or electorate postal allowance to post letters dated 3 March 1993 to electors for the Division of Dobell which, amongst other things, referred to the commitment of the Australian Labor Party to certain policies and objectives. It was asserted that this was use of the allowance for party/political business.

3. There are four Notices of Motion before the Court. The first was filed by the Petitioner and seeks dispensation from O.68, r.3 of the High Court Rules ("the Rules") in so far as that rule requires a petitioner to cause a copy of the petition to be published in the Commonwealth Gazette and in the official Gazette of the State in which the election was held.

4. The second and third Notices of Motion were filed on behalf of the respondent and the Australian Electoral Commission ("the Commission"), respectively. They seek orders that no proceedings be had on the Petition and that the Petition be dismissed. The Petitioner complains that there are formal defects in, or associated with, the Notice of Motion filed on behalf of the respondent. It is sufficient if the matter proceeds on the Notice of Motion filed on behalf of the Commission, the grounds of which are:
"(a) The Petition does not comply with the requirements of
paragraphs 355(a) and 355(aa) of the (Act).
(b) The Court of Disputed Returns is not empowered to
declare an election void on the grounds alleged in the
Petition."
5. The fourth Notice of Motion was filed by the Petitioner and seeks orders that no proceedings be had on the Notices of Motion of the respondent and the Commission. It also seeks relief from compliance with s.355(aa) of the Act ((1) Section 355(aa) provides:

"Subject to section 357, every petition disputing an
election or return in this Part called the petition
shall:
...
(aa) subject to subsection 358(2), set out (the
facts relied on to invalidate the election or
return) with sufficient particularity to
identify the specific matter or matters on
which the petitioner relies as justifying the
grant of relief".
Section 358(2) invests the Court with a discretion to, "on such
terms (if any) as it thinks fit, relieve the petitioner wholly or
in part from compliance with paragraph 355(aa)".).

The grounds set out in this Notice of Motion are concerned to dispute or rectify the matters raised in the third and fourth Notices of Motion, rather than to establish a basis for their summary dismissal. It is appropriate, therefore, to treat the fourth Notice of Motion as an answer to those earlier Notices of Motion, and, save as to s.355(a), not an application for separate relief.

6. It is convenient to proceed first with the Commission's Notice of Motion in so far as it is the basis for argument on behalf of the Commission and the respondent that the Court is not empowered to declare an election invalid or void on the ground asserted in the Petition. If the argument is correct, the Petition must be dismissed and other questions raised by the Notices of Motion become academic.

7. The Act, as its title suggests, is concerned to regulate the conduct of Commonwealth elections. Part XXII, Div.1 of the Act is concerned with the validity of elections and returns, which, by s.353(1), may be disputed by a Petition addressed to the Court of Disputed Returns and not otherwise.

8. Section 362 of the Act provides as to the Court's powers with respect to bribery or corruption, illegal practice and undue influence. Those three matters are defined in s.352(1) as follows:

"'bribery' or 'corruption' means a contravention of section
326 ((2) Section 326 of the Act deals comprehensively with
bribery or corruption in, and in relation to, elections.);
'illegal practice' means a contravention of this Act or the
regulations;
'undue influence' means a contravention of section 327 of
this Act or section 28 of the Crimes Act 1914" ((3) Section 327
deals specifically with hindering or interfering with the free
exercise of political rights and duties in relation to an
election, and, also, with discrimination on political grounds.
Section 28 of the Crimes Act 1914 (Cth) makes it an offence for
any person, "by violence or by threats or intimidation of any
kind" to hinder or interfere with the free exercise or performance
of a political right or duty.).

9. The powers of the Court under s.362 with respect to bribery or corruption, undue influence and illegal practices are precisely regulated by sub-ss.(1) and (3) which are as follows:

"(1) If the Court of Disputed Returns finds that a
successful candidate has committed or attempted to commit
bribery or undue influence, the election of the candidate
shall be declared void.
...
(3) The Court of Disputed Returns shall 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"

It may be noted, for completeness, that the powers of the Court are further expressly confined by s.362(4) which forbids interference with a return or an election on the ground of contravention of the Broadcasting Act 1942 (Cth) or the Radiocommunications Act 1983 (Cth). They are also confined by ss.365 and 366 which are concerned, respectively, with what may be called polling clerk errors, and, certain errors and omissions relating to party affiliation as shown on the ballot papers.

10. Although there is no express statement in the Act to that effect, s.362, in my view, provides exhaustively as to the general grounds on which an election may be invalidated or declared void. There are three matters which provide the basis for my view in that regard. First, the Act makes detailed and comprehensive provision as to the conduct of elections. Second, it allows for elections and returns to be disputed on the ground of "illegal practice" which is defined to mean "a contravention of (the) Act or the regulations" (which includes bribery or corruption as defined in the Act, and undue influence, to the extent that s.327 of the Act rather than s.28 of the Crimes Act is involved). The detail of the Act's provisions and the width of the definition of "illegal practice", standing alone, are powerful indications of the exhaustive nature of s.362. In that context, the third matter is, in my view, conclusive, that matter being that s.362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding with respect to bribery or corruption, undue influence and illegal practice. It would be incongruous if the Court's powers were entirely at large with respect to matters extraneous to the Act.

11. The only matter which tends against the exhaustive nature of s.362 is the prohibition in sub-s.(4) with respect to breaches of the Broadcasting Act and the Radiocommunications Act. However, given the subject-matter of the Act, it can safely be assumed that that prohibition was inserted for extra caution.

12. The ground asserted in the Petition is not one of bribery or corruption, undue influence or illegal practice as defined in s.352(1) of the Act. It follows from the exhaustive nature of s.362 of the Act that it is not a ground on which an election can be declared invalid or void. Accordingly, the Petition must be dismissed.

13. Liberty is reserved to all parties to make written submissions with respect to costs. Submissions by the respondent and the Commissioner are to be filed and served within seven days, and by the Petitioner within the following seven days.