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Australian Electoral Commission
For the 1998 federal election, the overall level of litigation, including injunctions, petitions, and prosecutions, was no greater than that which occurred at the 1996 federal election.
On 9 September 1998, Mr Joseph Bryant instituted proceedings in the High Court against the Commonwealth, challenging the validity of section 125 of the Electoral and Referendum Amendment Act 1998, which amended section 240 of the Electoral Act. Section 240 of the Act provides for full preferential voting at federal elections. The basis of Mr Bryant's challenge is that section 125 of the amending Act is contrary to sections 7 and 24 of the Constitution, which require that senators and members "shall be directly chosen by the people".
On 28 September 1998, the High Court remitted the claim for injunctive relief to the Federal Court. On 30 September 1998, Mr Bryant appeared unrepresented before Justice Wilcox of the Federal Court, and submitted that the amendments made to the Act to reinforce the requirement for full preferential voting, subsequent on the Langer litigation in 1996, did not in fact render a 'Langer-style' vote informal, as claimed by the AEC in its election advertising. Mr Bryant submitted that that a 'Langer-style' vote (that is, a House of Representatives ballot paper marked 1, 2, 3, 3, 3,… etc.) should be counted as formal by the AEC.
Justice Wilcox ordered that the summons filed by Mr Bryant be dismissed, and that he pay the costs of the Commonwealth. In his decision, Justice Wilcox said, "It seems to me the advice that has been given to voters by the Electoral Commission about the effect of a Langer-style vote is correct."
On 13 October 1998, Mr Bryant appealed the decision of Justice Wilcox, on the grounds of alleged errors in law. On 20 October 1998, Justice Tamberlin of the Federal Court dismissed the appeal and ordered that Mr Bryant pay costs of the Commonwealth.
Mr Bryant has since issued a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903, and on 22 October 1998 the Commonwealth filed a Defence and Demurrer with the High Court in relation to the original statement of claim filed by Mr Bryant.
On 1 October 1998 Mr Douglas Hodgetts filed a Notice of Motion and an Application in the Federal Court against the AEC, challenging the fact that independent Senate candidates are not permitted a group voting ticket on the Senate ballot paper. On 2 October 1998 Justice Dowsett of the Federal Court dismissed the Notice of Motion filed by Mr Hodgetts, and ordered that he pay the costs of the AEC.
Mr Hodgetts then proceeded with his substantive application, basing his case on a provision in the Universal Declaration of Human Rights requiring fair elections. On 16 February 1999 Justice Dowsett of the Federal Court dismissed the application with costs against Mr Hodgetts.
On 15 September 1998 Mr Alan George Skyring filed an Application for an Order of Review in the Brisbane Registry of the Federal Court seeking a declaration that payment of the nomination deposit in a form other than gold coin is null and void, and consequently all nomination deposits which purported to be legal tender are also null and void. Mr Skyring also sought compensation by way of damages and costs.
On 5 November 1998 Mr Skyring unsuccessfully attempted to file a petition in the Brisbane Registry of the High Court disputing the election of John Colinton Moore as member of the House of Representatives for the Division of Ryan.
On 23 October 1998 Justice Dowsett of the Federal Court dismissed a Notice of Motion from Mr Skyring that the solicitor representing the AEC be no longer heard on the basis that he was a "vexatious litigant". His Honour also adjourned the application by the AEC to have the Skyring proceedings struck out as an abuse of process to 4 December 1998. Because a constitutional matter was raised in the Skyring application, His Honour determined that notices to the Attorneys-General of the Commonwealth were required under section 78B of the Judiciary Act 1903. At the hearing on 4 December Justice Dowsett dismissed Mr Skyring's application and awarded costs against him.
Mr Skyring then entered an appeal from the interlocutory decision of Justice Dowsett dismissing his Notice of Motion to have the AEC solicitor removed from the matter. Mr Skyring also entered an appeal from the final decision of Justice Dowsett dismissing his Application for an Order of Review. On 16 February 1999, Justices Spender, Cooper and Tamberlin of the Federal Court dismissed the appeals with costs against Mr Skyring.
An election for a Division for the House of Representatives or for a State or Territory for the Senate may be challenged by a petition to the High Court of Australia sitting as the Court of Disputed Returns, under Part XXII Division 1 of the Act. The period for filing a petition with the Court is 40 days after the return of the writ for the relevant election. Petitions must set out the facts relied on, with sufficient detail; contain a prayer for the relief or remedy sought; be signed by a candidate at the election or by a person qualified to vote at the election; be signed by two witnesses; and be accompanied by a deposit of $500 as security for costs. The following nine petitions were filed with the Court, challenging one House of Representatives election and six Senate elections.
A petition was filed on 1 December 1998 in the Sydney Registry of the High Court by Mr Henry (Nai Leung) Sue against the election of Senator-elect Heather Hill of Pauline Hanson's One Nation Party. The AEC has sought leave to appear in an amicus curiae role in order to provide submissions on the facts of the election and issues of relief or remedy, and is possible that the Attorney-General for the Commonwealth will intervene on the constitutional issue. The grounds of the petition are that:
As at the date of her nomination, the Respondent was under an acknowledgment of allegiance, obedience, or adherence to a foreign power, or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the Constitution. The foreign power is Britain. As such the Respondent was incapable of being chosen or of sitting as a Senator.
The petitioner, Mr Sue, has asked the Court to order that the AEC conduct a recount of the Queensland Senate ballot papers to determine which candidate should take Senator-elect Hill's place as a Senator.
A petition was filed on 2 December 1998 in the Brisbane Registry of the High Court by Mr Terry Patrick Sharples against the election of Senator-elect Heather Hill. The grounds of the petition are that:
The respondent is a person who at all material times for the purposes of the Federal Election falls within Section 44(i) of the Constitution, as a citizen of a foreign power, namely, the United Kingdom of Great Britain and Northern Ireland. As she did not renounce that citizenship and took no steps to divest herself of any continuing allegiance to such foreign power prior to her nomination as a Senate candidate for the Federal Election she was incapable of being chosen as a Senator in the Australian Parliament.
The petitioner, Mr Sharples, has asked the Court to declare the election of Senator-elect Hill void, and order that a writ be issued be issued for an election to fill any vacated Senate position.
A petition was filed on 7 December 1998 in the Brisbane Registry of the High Court by Mr Donald Kenneth Ditchburn against the election of Mr Peter Lindsay as Member for the Division of Herbert. The grounds of the petition, inter alia, are that various sections of the Electoral Act that provide for full preferential voting are in conflict with section 24 of the Constitution, which provides that members must be "directly chosen", and section 30 of the Constitution, which provides that "each elector shall vote only once".
The petitioner, Mr Ditchburn, has asked the Court to make a declaration as to the validity of the provisions of the Act relating to full preferential voting, and to annul the election of Mr Lindsay as the Member for Herbert.
A petition was filed on 30 November 1998 in the Brisbane Registry of the High Court by Mr Donald Kenneth Ditchburn against the election of all Senators for Queensland. The grounds of the petition, inter alia, are that various sections of the Electoral Act that provide for group ticket voting are in conflict with section 7 of the Constitution, which provides that senators must be "directly chosen by the people of the State".
The petitioner, Mr Ditchburn, has asked the Court to make a declaration as to the validity of the provisions of the Act relating to group ticket voting, and to annul the election of all Senators for the State of Queensland.
The following five petitions are identical in form and substance; were filed by non-incumbent and unsuccessful independent Senate candidates; and challenge the Senate elections in four States and one Territory on the grounds that such candidates were denied media coverage; and that the non-availability of the group voting ticket facility disadvantages independent Senate candidates. All petitioners have sought leave of the Court to have the petitions dealt with collectively as a "class action".
A petition was filed on 8 December 1998 in the Melbourne Registry of the High Court by Mr Malcolm McClure against the election of the Senators for Victoria. The petitioner, Mr McClure, has agreed that his petition should be heard first, and is seeking a declaration that the Senate election for the Northern Territory is void and that none of the Senate candidates returned was duly elected.
A petition was filed on 2 December 1998 in the Darwin Registry of the High Court by Mr Jonathan Polke against the election of the two Senators for the Northern Territory. The grounds of the petition and the relief/remedy sought by the petitioner are the same as for the McClure petition.
A petition was filed on 8 December 1998 in the Hobart Registry of the High Court by Mr Lauriston Brownell Heathorn against the election of the Senators for Tasmania. The grounds of the petition and the relief/remedy sought by the petitioner are the same as for the McClure petition.
A petition was filed on 7 December 1998 in the Sydney Registry of the High Court by Mr Adrian Rex Vaughan against the election of the Senators for New South Wales. The grounds of the petition and the relief/remedy sought by the petitioner are the same as for the McClure petition.
A petition was filed on 7 December 1998 in the Perth Registry of the High Court by Mr Roderick David Garcia against the election of the Senators for Western Australia. The grounds of the petition and the relief/remedy sought by the petitioner are the same as for the McClure petition.
The AEC acknowledges the Traditional Owners of country throughout Australia and recognises their continuing connection to land, waters, culture and community. We pay our respects to Elders past, present and emerging.