Free v Kelly & Australian Electoral Commission (No 2) [1996] HCA 42; (1996) 185 CLR 296; (1996) 138 ALR 649; (1996) 70 ALJR 809 (11 September 1996)
HIGH COURT OF AUSTRALIA
ROSS VINCENT FREE v JACQUELINE MARIE KELLY and AUSTRALIAN ELECTORAL
COMMISSION
S 96/011
Number of pages - 6
Election petition
HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF DISPUTED RETURNS
BRENNAN CJ
CATCHWORDS
Election petition - House of Representatives - Court of Disputed Returns - Incapable of being chosen - Election absolutely void - Special count of votes refused - "distortion of the voters' real intentions" - Costs - Constitution s 44(i) and (iv) - Commonwealth Electoral Act 1918, ss 274(7)(d), 359, 360(1)(vii), 360(4), 374(iii).HEARING
CANBERRA, 5 September 199611:9:1996
ORDER
1. Declare that the first respondent was not capable of being chosen as a member of the House of Representatives for the Division of Lindsay at the election held on 2 March 1996.2. Declare that the first respondent was not duly elected as a member of the House of Representatives for the Division of Lindsay at the election held on 2 March 1996.
3. Declare that the election for the Division of Lindsay held on 2 March 1996 was absolutely void.
4. The first respondent pay two-thirds of the petitioner's costs.
revision prior to publication in the Commonwealth Law Reports.
DECISION
BRENNAN CJ. Writs for a general election of members of the House of Representatives were issued on 29 January 1996. The writ relating to the election of members for Electoral Divisions within New South Wales specified 9 February 1996 as the date for the nomination of candidates. The registered officer of the Liberal Party of Australia, New South Wales Division, nominated Ms Kelly (the first respondent) for the Division of Lindsay. That nomination was lodged on 2 February 1996. At the time of her nomination, Ms Kelly was an officer of the Royal Australian Air Force. At her request, she was transferred to the RAAF Reserve on 17 February 1996.
2. There were 7 candidates who nominated for election for the Division of
Lindsay and whose names appeared on the ballot-paper.
The poll was held on 2
March 1996. No candidate received an absolute majority of first preference
votes. Accordingly, the preferences
were distributed among the candidates in
accordance with s 274(7)(d) of the Commonwealth Electoral Act 1918 ("the
Act"). After the
distribution of final preferences, Ms Kelly had a total of
38,442 votes and Mr Free had a total of 36,088
votes. Ms Kelly with an
absolute majority of the votes at that stage was declared to be elected. On 1
April 1996 the Electoral
Commissioner certified on
the writ that Ms Kelly had
been duly elected as the member for the Division of Lindsay and returned the
writ so endorsed to the Governor-General.
3. By a petition addressed to the Court of Disputed Returns pursuant to s
353(1), Mr Free challenged the validity of the election
of Ms Kelly as a
member of the House of Representatives for the Division of Lindsay.
The
challenge was based on s 44(i) and (iv) of the Constitution. The former basis
of challenge, an allegation that the first respondent held at the time of her
nomination dual citizenship as an
Australian and New Zealand citizen, was not
pursued at the trial of the petition. But it is now common ground that, by
reason of
s 44(iv) of the Constitution, Ms Kelly was incapable of being chosen
as a member of the House of Representatives while serving as an officer of the
RAAF at the
time of her nomination as a candidate. That is the relevant time
for determining whether a person is incapable of being chosen on
any of the
grounds specified in s 44 of the Constitution (1). As Ms Kelly was incapable
of being chosen as a member of the House of Representatives, an appropriate
declaration of incapacity
must be made.
4. The substantial issue between the parties is whether the election should
be declared absolutely void or whether an order should
be made directing a
special count of the ballot-papers in the poll. Counsel for Mr Free seeks an
order directing the counting of
the ballot-papers which gave first preference
votes to Ms Kelly to the candidate next in order of the voters' preference,
followed
by a counting of the ballot-papers in accordance with par (d) of s
274(7) of the Act. If such an order be made, the candidate who
receives an
absolute majority of votes after the counting of the ballot-papers in
accordance with par (d) would be declared elected
as the member for the
Division of Lindsay.
5. In support of his application for an order for a special count, Mr Free
points to the order for a special count made in In re
Wood (2). That case
related to the election as a Senator of a person who, by reason of s 44(i) of
the Constitution, was incapable of being elected as a Senator. In that case,
the Court said (3):
"The purpose of the poll is to choose in accordance with the Actthe preferred candidates who are qualified to be chosen, but no effect can be given for the purpose of the poll to the placing of a figure against the name of a candidate who is not qualified to be chosen: an indication of a voter's preference for an unqualified candidate is a nullity. That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s 16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter's expressed intention."
Some reliance is also placed on an observation later in the judgment in In re Wood (4) where the Court said:
"The problem of want of qualification arises under the Act if anunqualified candidate is elected, but an election is not avoided if an unqualified candidate stands".
Applying these propositions to the present case, counsel for Mr Free submits that the votes cast by the electors were valid and that the ballot-papers are nullities only in so far as they gave a first preference vote to Ms Kelly. In the case of the ballot-papers in which a first preference vote was given for Ms Kelly, the votes are valid to the extent that they give second and subsequent preferences to other candidates who were qualified to be chosen. Ms Kelly's incapacity, it is said, precludes her from being chosen but it does not avoid the election which can be completed by a special count resulting in the choosing of a candidate who is capable of being chosen. Counsel for Mr Free points out that 57.48% of the ballot-papers included in the scrutiny gave first preference votes to qualified candidates. It is submitted that a special count would permit effect to be given to the intentions of the majority of the electors. Moreover, it is said, if such an order be made, the election of a candidate who is not a member of Ms Kelly's party would be a dramatic warning to all political parties of the risk of nominating candidates who are not capable of being chosen as members of the House of Representatives. And a special count would avoid the cost of a new election pursuant to s 374(iii).
6. These submissions focus on the validity of the ballot-papers included in
the scrutiny, none of which is under challenge but all
of which must have
attributed either the first or some subsequent preference to Ms Kelly. But
the relief to be granted in the case
of a purported election to membership of
the House of Representatives of a person who is incapable of being chosen as a
member does
not depend upon the validity of the votes cast nor simply on the
preferences expressed for those candidates who are eligible to be
chosen.
7. In re Wood was decided on a reference to determine the qualification of Mr
Wood to sit as a Senator after a Senate election conducted
under scrutiny
provisions of the Act that are calculated "to reflect the proportionate
support of the electors for the respective
political parties or groups from
which the candidates for election are drawn" (5). In re Wood was considered
in Sykes v Cleary (6),
where the Court was considering the different scrutiny
provisions relating to an election for a Division in the House of
Representatives.
Mason CJ, Toohey and McHugh JJ in a judgment (7) agreed to by
Dawson J (8), Gaudron J (9) and me (10), distinguished the circumstances
in In
re Wood. Their Honours said (11):
"In these circumstances, the situation in In re Wood was such asto warrant the conclusion that the special count would reflect the voters' 'true legal intent' (12). Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case. Here a special count could result in a distortion of the voters' real intentions because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent."
The principle to be derived from both cases is that an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters' true legal intent or, conversely, would not result in a distortion of the voters' real intentions (13). In In re Wood, the Court was satisfied that a special count would reflect the voters' true intentions but in Sykes v Cleary, no special count could be ordered "because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent". In other words, if the name of the disqualified Mr Cleary had not appeared on the ballot-paper, the voters' preferences might have been differently expressed.
8. A similar observation can be made in the present case. Ms Kelly and Mr
Free were by far the candidates who attracted the greatest
number of first
preference votes. If Ms Kelly's first preference ballot-papers were to be
distributed so as to be counted to the
candidate next in order of the voters'
preferences, the order of exclusion of the less-favoured candidates under par
(d) of s 274(7)
might well have been altered. That alteration might have
affected the identity of the candidate last remaining after the distribution
of preferences. In other words, it is impossible to predicate of the election
that the person who might be selected on a special
count would have been
chosen had Ms Kelly not been nominated as a candidate. There is a substantial
possibility that a special count
would distort the voters' intentions.
Indeed, there is much to be said for the view, submitted by counsel for the
Australian Electoral
Commission, that, if the candidate who is returned as an
elected member proves to have been incapable of being chosen, the election
is
necessarily void and a new election must be held. That may be too broad a
proposition, at least where there are only two candidates
standing and the
facts which establish the incapacity of the one chosen are known to the
electors at the time of the poll: see In
re Parliamentary Election for
Bristol South East (14).
9. In my view the election in which Ms Kelly was declared elected was
absolutely void. Accordingly, a declaration must be made
pursuant to s
360(1)(vii) of the Act. The consequence is that a new election for the
Division of Lindsay will be held pursuant to
s 374(iii).
10. There remains the question of costs. An order for the petitioner's costs
as against the first respondent must be made. It
was by reason of her
nomination when she was incapable of being chosen that the proceedings have
been brought and the election avoided.
However, on the trial of the petition
on 5 September 1996, the only issue remaining in dispute between the parties
was the order
to be made consequent on the declaration of the first
respondent's incapacity to be chosen. On that issue, the petitioner has
failed.
The first respondent seeks an order for costs against him in respect
of the proceedings on 5 September and seeks to have those costs
set off
against the order that must be made in favour of the petitioner in respect of
the general costs of the petition. I agree
that in principle the first
respondent is entitled to costs in respect of that issue. However, although
the actual costs incurred
on 5 September might be greater than the costs
incurred in respect of each of the earlier appearances on the directions
hearings,
I must take into account the failure of the first respondent prior
to the trial of the petition to admit her incapacity to be chosen.
That
failure must have increased the overall costs of the proceedings. In these
circumstances, the appropriate and simplest order
to make as to costs as
between the petitioner and the first respondent is that the petitioner recover
two-thirds of his costs.
11. To the extent to which the petitioner fails to recover all his costs
against the first respondent, he seeks an order against
the Commonwealth under
s 360(4) of the Act. I do not propose to make any order under that provision.
The petitioner has unsuccessfully
pursued a submission that a special count be
ordered. The argument in support of this submission was far from persuasive
and the
attempt to rely on the propositions in In re Wood had already been
disposed of by the judgment in Sykes v Cleary. Even if a wide
view be taken
of the discretionary power conferred by s 360(4) (15), there is no warrant for
the making of any order for costs under
that sub-section.
12. The Australian Electoral Commission seeks an order for its costs against
the first respondent in respect of the costs incurred
before she conceded that
a new election was appropriate and against the petitioner in respect of the
costs generally. Counsel for
the Commission points to the provisions of s 359
of the Act which deem the Commission when it is represented and heard on a
petition
to be "a party respondent" to the petition. It is thus, in a sense,
a successful party: its submissions have largely been accepted.
However, an
order for costs should depend not on the deemed status of the Commission as a
party but on the function which the Commission
performs in being represented
and heard on the trial of a petition.
13. The Commission may be represented and heard under s 359 in at least four
categories of case: cases where the Commission seeks
to defend the conduct of
an election or the conduct of an officer of the Commission in relation to an
election; cases in which the
Commission intervenes for the purpose of
advancing a proposition for which it seeks curial confirmation to assist it in
the discharge
of its statutory functions; cases where the Commission adopts a
partisan stance supporting one party or another; and cases where
the
Commission merely makes appropriate reference to the Act and to authority in
order to assist the Court to determine a petition.
It may be appropriate to
make an order for or against the Commission in the first three categories of
case, but in the fourth category
the Commission is engaged in the proper
performance of a statutory function (16) in the public interest. The
appearance of the Commission
in such a case ought not to enlarge the risk of
costs to the other parties to the proceedings. Being incidental to the proper
performance
of its statutory functions, the cost of being represented and
heard ought properly to be borne as a cost of the Commission's administration.
This is such a case. Expressing, as I do, appreciation of the considerable
assistance that the Commission offered - not least in
the preparation of an
agreed statement of facts - it is appropriate to make no order with respect to
the costs of the Commission.
1 Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 at 99-101.
2 [1988] HCA 22; (1988) 167 CLR 145 at 175.
3 [1988] HCA 22; (1988) 167 CLR 145 at 165-166.
4 [1988] HCA 22; (1988) 167 CLR 145 at 167.
5 In re Wood (1988) 167 CLR 77 at 165.
6 [1992] HCA 60; (1992) 176 CLR 77.
7 [1992] HCA 60; (1992) 176 CLR 77 at 101-102.
8 [1992] HCA 60; (1992) 176 CLR 77 at 130-131.
9 [1992] HCA 60; (1992) 176 CLR 77 at 132.
10 [1992] HCA 60; (1992) 176 CLR 77 at 108.
11 [1992] HCA 60; (1992) 176 CLR 77 at 102.
12 [1988] HCA 22; (1988) 167 CLR 145 at 165-166.
13 [1992] HCA 60; (1992) 176 CLR 77 at 102.
14 (1964) 2 QB 257 at 291-301.
15 See Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 at 142, 143; Hudson v Lee [1993] HCA 58; (1993) 177 CLR
627 at 633-634; Webster
v Deahm, unreported, 20 June
1996 at 4.
16 The Commission's functions are those "permitted or required to be performed
by or under this Act": s 7(1)(a).