COURTCWDS IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION LEE J HRNG Elections - Aboriginal and Torres Strait Islander Commission - Regional Council election - whether error of or omission by election officer did not affect the result of the election - whether just and sufficient to declare election void
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 4, 100, 100A, 101, 104, 106, 110, 111, 113, 140, 141; sub-ss 101(a), 105(1), 106(3), 107(2), 113(3); paras 101(b)(i), 101(b)(ii); sub-para 141(2)(a)(iii); Schedules 2, 4; cll 1, 10, 12, 14 (Schedule 4); sub-cll 3(e), 10(2), 10(3), 12(3), 14(1) (Schedule 4) Commonwealth Electoral Act 1918 s.360 Regional Council Election Rules rr 2, 4, 25, 71, 73, 74, 76, 77, 78, 108, 130; sub-rr 73(4), 74(2), 76(1), 76(3), 78(3), 78(5), 92(2A); paras 71(9)(d), 92(4)(a), 92(2)(f) Commonwealth of Australia Gazette Australian Electoral Commission v. Gordon et al., Unreported (Federal Court of Australia, 5 September 1994) Australian Electoral Commission v. Lalara et al., Unreported (Federal Court of Australia, 27 September 1994) Australian Electoral Commission v. Towney et al., Unreported (Federal Court of Australia, 22 June 1994) Bridge v. Bowen (1916) 21 CLR 582 Hudson v. Lee (1993) 177 CLR 627 Kean v. Kerby (1920) 27 CLR 449 Sykes v. Australian Electoral Commission (1993) 67 ALJR 714 WASAGA v. Tahal (1991) 33 FCR 438 ORDER PERTH, 4 August 1994
#DATE 22:12:1994 Counsel for the Petitioner: J.D. Allanson Solicitor for the Petitioner: Australian Government Solicitor Counsel for the First, Second, P.J. Vincent Third, Fourth and Fifth Respondents: Solicitors for the Respondent: Newton Vincent JUDGE1 THE COURT ORDERS AND DECLARES THAT:
1. Each respondent was not duly elected. 2. The election held on 4 December 1994 for the Western Desert ward of the Warburton region is absolutely void. 3. The petitioner pay the costs of the respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. LEE J This is a petition filed pursuant to s.140 and Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the Act") in which the Australian Electoral Commission ("the petitioner") seeks, inter alia, a declaration that a Regional Council election held under the Act, namely, the election of five Regional Council members for the Western Desert ward of the Warburton region, is absolutely void.
2. Section 100 of the Act provides that Regional Council elections are to be conducted by the petitioner in accordance with the provisions of the Act and the Regional Council election rules ("the rules") made under s.113 of the Act. The rules, pursuant to s.100A of the Act, divide the Warburton region into three wards and fix at five the number of Regional Council members to be elected for the Western District ward. Under s.101 of the Act a person is entitled to vote at a Regional Council election only if that person is an Aboriginal person or a Torres Strait Islander whose name is on the Commonwealth Electoral Roll ("the electoral roll") and has a place of living, as shown on the electoral roll, within the ward in which the poll is held (para.101(b)(i)), or for whom an entitlement to vote is provided by the rules under sub-s.113(3) of the Act (para.101(b)(ii)). 3. Sub-section 113(3) reads as follows: "113.(3) The rules may make provisions entitling Aboriginal persons and Torres Strait Islanders to vote at Regional Council ward elections even if those persons would not be entitled so to vote pursuant to subparagraph 101(b)(i) and, without limiting the generality of the foregoing, may make provision in relation to the following matters: (a) the determination of the Regional Council ward election at which a person is entitled to vote if: (i) the person's name is on the Commonwealth Electoral Roll; but (ii) pursuant to a provision of the Commonwealth Electoral Act 1918, the person's place of living or address is not shown on the Commonwealth Electoral Roll; (b) how a vote cast by a person is to be dealt with where: (i) the person was entitled to have his or her name on the Commonwealth Electoral Roll; but (ii) the person's name was not on that Roll because of a mistake by a person exercising powers or performing functions under the Commonwealth Electoral Act 1918; (c) the casting of a provisional vote by a person whose name does not, on the polling day, appear to be on the Commonwealth Electoral Roll; (d) the circumstances in which a provisional vote cast pursuant to rules made under paragraph (c) is to be accepted."It does not appear that the power to make rules of the type provided for by sub-s.113(3) has been exercised and the qualification of an elector is as set out in sub-s.101(a) and para.101(b)(i). 4. As required by ss.104 and 106 of the Act, the Minister for Aboriginal and Torres Strait Islander Affairs ("the Minister"), by notice in writing, fixed 4 December 1993 as the polling day for the 1993 round of Regional Council elections and duly published a copy of that notice in the Commonwealth of Australia Gazette. 5. Pursuant to sub-s.106(3) of the Act, at the time of publication of the notice fixing a polling day, the Minister published his estimate that 1,200 Aboriginal persons or Torres Strait Islanders lived in the Western Desert ward and that 620 Aboriginal persons or Torres Strait Islanders would be entitled to vote at a Regional Council election for that ward. At the close of nominations for the 1993 round of elections, thirteen nominations had been received for election as the five Regional Council members of the Western Desert ward. 6. Pursuant to sub-s.107(2) of the Act a poll was held for that ward on 4 December 1993 at appointed polling places. The four polling places appointed by the Electoral Commissioner pursuant to sub-s.105(1) of the Act included Nullagine and Wiluna. In respect of the polling place at Wiluna the presiding officer at that place had taken votes at a mobile booth which, pursuant to r.71, had attended at remote locations on 3 December 1994 to conduct the poll. By para.71(9)(d) rules relating to voter card envelopes applied to the taking of votes under r.71. 7. On or about 4 December 1993 the Regional Returning Officer ("the returning officer") declared, pursuant to the rules, that the five respondents were the duly elected members for the Western Desert ward. 8. By ss.108 and 109 of the Act voting in the poll was voluntary and by secret ballot. The manner in which votes are to be made and counted is set out in ss.110 and 111 of the Act which read as follows: "Voting 110.(1) A voter shall cast a vote at a Regional Council election by marking the ballot paper so as to show the order of the voter's preference for the candidates. (2) A ballot paper is formal if and only if: (a) the authorised electoral officer is satisfied that it is an authentic ballot paper; (b) it indicates the voter's first preference for one, and only one, candidate; and (c) it does not have upon it any identifying mark. (3) A ballot paper that is formal shall be given effect according to the voter's intention so far as that intention is clear. (4) In this section: "identifying mark" means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper (whether or not in contravention of any law) by a person involved in conducting the election. Counting of votes and election of candidates 111. Votes cast at a Regional Council election shall be counted, and the candidate or candidates are to be elected, as provided in: (a) whichever of Schedules 2 and 2A applies; and (b) the Regional Council election rules." 9. In respect of the poll for the Western Desert ward, Schedule 2 of the Act applied. Schedule 2 contained elaborate provisions for the fixing of a quota of the votes to be obtained for election to office and for the counting of preferences to ascertain which candidates had obtained a quota. 10. In the poll for the Western Desert ward 383 persons were recorded as voters in that poll. At the counting of the votes only 235 votes were included in the count after the conduct of a preliminary scrutiny. Votes not included in the count included all ballot papers completed by electors at the polling places of Nullagine (20) and Wiluna (87 or 89) ("the excluded votes"). 11. It was not in issue that the excluded votes had been so treated by the returning officer by reason of errors in the course of the poll committed by officers appointed by the petitioner, to act as presiding officers at Nullagine and Wiluna. The petitioner now contends that the errors committed by its officers permits the Court to exercise discretion it has been given under the Act to declare the five respondents not duly elected and to declare the election for the Western Desert ward to be absolutely void. 12. The petition was filed in the A.C.T. District Registry of this Court on 2 March 1994. Pursuant to sub-cl.3(e) of Schedule 4 of the Act the petition had to be filed "within 40 days after the end of the election period". "Election period" is defined in s.4 of the Act as follows: "'election period', in relation to a round of Regional Council elections, means the period: (a) starting on the day when the Minister fixes a day or days for the polling in accordance with subsection 104(2); and (b) ending on the last day on which a poll is declared in relation to an election in that round of Regional Council elections;"By an affidavit filed by consent on 1 November 1994 it was deposed that the last day on which a poll was declared in relation to an election in the 1993 round of Regional Council elections was 21 January 1994 for polls held in wards of the Port Augusta and Ceduna Regions in South Australia. Therefore, 2 March 1994 was within 40 days after the end of the election period, albeit the last day of that period. (See: Australian Electoral Commission v. Lalara et al., Unreported (Federal Court of Australia, 27 September 1994, per O'Loughlin J at 8-15.) 13. By reason of the requirement of s.101 of the Act which conditions a person's entitlement to vote in a Regional Council election upon inclusion of that person's name on the electoral roll and upon that person being an Aboriginal person or Torres Strait Islander, the rules in r.73 have made provision for the issue to each elector attending to vote at the polling place on polling day of a "voter card envelope". Pursuant to sub-r.73(4) the presiding officer is to hand to a person intending to vote a ballot paper and a voter card envelope. Rule 74 requires the voter to "complete" the voter card envelope and hand the envelope to the presiding officer for signing. The rule does not state that the presiding officer is to hand the voter card envelope back to the voter but that requirement may be inferred from the content of succeeding rules. 14. The voter card envelope is not a prescribed form. It is defined in r.2 as "a voter card envelope in the approved form". The "approved form" used in the 1993 round of elections comprised two printed sheets headed "VOTER CARD ENVELOPE" attached by an adhesive substance to a sealable pocket or envelope. The principal printed item on the two sheets was a declaration to the following effect: ". I am an Aboriginal person or a Torres Strait Islander . I am on the Commonwealth Electoral Roll . I have not voted before in this election." to be completed by the voter by signing in the space provided. 15. The second copy of the sheet was in the same form as the first but was self-carbonising to record any details inserted on the first copy. Endorsed on the second sheet were the additional words "POLLING OFFICIAL ONLY", "COUNTERFOIL", "AFTER COMPLETING DETAILS REMOVE COUNTERFOIL AND FILE". 16. The following words were endorsed on the sealable pocket or envelope: "INFORMATION FOR VOTER . In private, fill in the ballot paper. . After you have voted, fold the ballot paper and place it in this envelope. . Seal the envelope. Do not detach the voter card. . Hand the envelope to the Liaison Officer who will tell you what to do next. SECRET BALLOT This envelope will be separated from the voter card containing your personal particulars and placed with all other envelopes before the envelopes are opened and counted." 17. Pursuant to r.76 the details completed by the voter on the first sheet become a record of the name of each voter casting a vote at the polling place (sub-r.76(1)) and the details recorded by imprint on the second sheet are intended to be the presiding officer's record of the name of each elector casting a vote at that polling place (sub-r.76(3)). Both sheets are made detachable by perforations. The apparent but unstated intention of the rules is that the "counterfoil" is to be removed by the presiding officer when the envelope is handed to the officer by the elector pursuant to r.74 and that the first sheet ("voter detail slip") remain attached when the voter card envelope is handed back to the voter by the presiding officer. 18. Rule 77 states the procedure to be followed by a voter upon the receipt of the ballot paper. The voter must retire alone to mark his or her vote, fold and insert the ballot paper into the voter card envelope, seal the envelope and present the envelope to the liaison officer. The liaison officer, pursuant to r.78, must decide whether, on the balance of probability, the voter who has presented a voter card envelope is an Aboriginal person or Torres Strait Islander and if the officer decides that the voter is not an Aboriginal person or Torres Strait Islander the liaison officer is to "annotate" the voter card envelope "to that effect" but otherwise is not to mark the envelope (r.78(3)). The liaison officer must then hand the voter card envelope back to the voter who is required to deposit the envelope in the ballot box: (r.78(5)). The rules intend that the voter's declaration on the first sheet remain attached to the envelope containing the ballot paper until the returning officer separates the sheet prior to the counting of votes under para.92(4)(a). 19. At the close of the poll the ballot boxes from Nullagine and Wiluna were forwarded to the returning officer to conduct a scrutiny and count of the votes pursuant to the rules. 20. The Nullagine ballot box held 20 sealed voter card envelopes and 20 detached voter detail slips. Because the voter detail slips had been detached from the voter card envelopes all votes were excluded from further scrutiny and from the count. It should be noted that the counterfoils had been correctly removed at the time of voting and retained by the presiding officer as the record required to be kept by him pursuant to sub-r.76(3). 21. The Wiluna ballot box contained 87 sealed voter card envelopes and 89 loose ballot papers. All voter detail slips had been detached and apparently sealed inside the voter card envelopes. Pursuant to a subsequent order of this Court, made by consent, the voter card envelopes from that ballot box were opened and it was confirmed that the voter detail slips were contained therein. One counterfoil had been placed in a voter card envelope and the original of that counterfoil had been placed in a blue envelope for storing spoilt material. The other 86 counterfoils were correctly retained by the presiding officer and placed in a folder provided for that purpose by the petitioner. There was no explanation for the 2 extra loose ballot papers in the ballot box. 22. Affidavit evidence was led by the petitioner to establish the number of voter detail slips that would have passed the preliminary scrutiny which determined qualification to vote had the votes not been excluded because of detachment of the voter detail slips from the voter card envelopes. In relation to Nullagine, of the 20 votes excluded 19 would have passed the preliminary scrutiny and have been eligible for inclusion in the count. As to Wiluna, 50 or 51 of the 87 voter detail slips contained in the ballot box would have passed the preliminary scrutiny. It was said that another 17 voter detail slips from the Wiluna ballot box had not been duly completed and would have been rejected for that reason. It must be assumed that none of those slips was able to be saved by the operation of sub-r.92(2A) which provides as follows: "92.(2A) A voter card envelope must not be rejected at the preliminary scrutiny solely because paragraph (2)(f) has not been complied with if, before the declaration of the poll, the Regional Returning Officer for the region containing the ward certifies that the name of the elector appears on a record of voters made by a presiding officer under subrule 76(3)." 23. Paragraph 92(2)(f) requires the returning officer to put aside voter card envelopes that are not signed and dated by the issuing (presiding) officer pursuant to sub-r.74(2). The non-compliance with para.92(2)(f) referred to in sub-r.92(2A) must be the non-completion of the voter detail slip by the presiding officer. 24. Pursuant to cl.10 of Schedule 4 of the Act the Court has the following powers in respect of an election petition: "10. (1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers: ... (e) to declare that any person who has returned was not duly elected; (f) to declare any candidate duly elected who was not returned; (g) to declare the election absolutely void; (h) to dismiss or uphold the petition in whole or in part; (j) to make any order, or give any direction, that the Court thinks is necesssary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings; (k) to award costs; ... (2) The Court may exercise all or any of its powers under this clause on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this clause, it is hereby declared that the power of the Court to declare that any person who was returned 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. ..." Also relevant to the hearing of this petition are cll.12 and 14 of Schedule 4 which provide: "12. (1) If the Court finds that a candidate at an election has committed or has attempted to commit bribery or undue influence, the candidate's election, if he or she is a successful candidate, shall be declared void. (2) No finding by the Court shall bar or prejudice any prosecution for any illegal practice. (3) The Court shall not declare that any person returned 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 his or her knowledge or authority; 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." 25. (The term "illegal practice" is defined in cl.1 of Schedule 4 as "a contravention of this Act, Regional Council election rules or the zone election rules".) "14. (1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of the poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election. (2) 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 shall not, for the purpose 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."