Abbotto v The Australian Electoral Commission M37/1996 [1997] HCATrans 148 (22 May 1997)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS

MELBOURNE OFFICE OF THE REGISTRY

No. M37 of 1996

BETWEEN: JOHN MURRAY ABBOTTO

Petitioner

- and -

AUSTRALIAN ELECTORAL COMMISSION

Respondent

DAWSON J

AT MELBOURNE, THURSDAY THE 22ND DAY OF MAY 1997

MR J.M. ABBOTTO: I appear for myself this morning in these proceedings.

MS S.C. KENNY: I appear for the respondent in these proceedings. (Instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. I have a very tall Associate who is impeding the view.

MS KENNY: I realise this.

HIS HONOUR: Yes. This is your application, is it not, Ms Kenny?

MS KENNY: It is indeed, your Honour.

HIS HONOUR: Yes.

MS KENNY: I wonder might I just take you through the documents which should be before the Court?

HIS HONOUR: Yes.

MS KENNY: There ought to be a petition - - -

HIS HONOUR: I have read the petition.

MS KENNY: - - - and then a notice of motion seeking that - seeking in effect to strike out the petition.

HIS HONOUR: Under what section is that?

MS KENNY: Under two provisions, your Honour. One would be under the Act itself, under section 358 of the Act. In other words:

No proceeding shall be heard on a petition unless the requirements of -

in this case section 355 -

are complied with.

HIS HONOUR: Yes, that is the technical point.

MS KENNY: Yes, it is.

HIS HONOUR: Yes.

MS KENNY: And the second would be generally under order 63:

Upon the basis that there is no reasonable cause of action or suit or the matter is otherwise an abusive process.

HIS HONOUR: Yes. That - - -

MS KENNY: Rule 2, order 63.

HIS HONOUR: Yes. Is there not another provision that none of the grounds alleged in the petition would entitle the petitioner to the relief sought?

MS KENNY: That would be - that, I think, is a judicial explanation of circumstances in which the petition may be struck out.

HIS HONOUR: Under the rules.

MS KENNY: Under the rules.

HIS HONOUR: Yes.

MS KENNY: But one would have to rely either upon the Act or upon order 63. One must read order 63 with order 68 of the High Court Rules which adopts the rules of the High Court in relation to a petition. So when one turns to order 68, rule 2 - - -

HIS HONOUR: Perhaps if you read order 68.

MS KENNY: Order 68, rule 2, provides that:

These rules so far as they are applicable and are not inconsistent with this order extend and apply to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.

HIS HONOUR: Yes.

MS KENNY: That in turn would enable one to look to the provisions of order 63, rule 2, and apply upon the basis that there was no reasonable cause of action or the matter was an abuse of process.

HIS HONOUR: Yes.

MS KENNY: Rule 2 of Order 63.

HIS HONOUR: Yes. Is there not another provision - none of the grounds alleged in the petition would entitle a petitioner to the relief sought?

MS KENNY: That, I think, is a judicial explanation of circumstances in which the petition may be struck out.

HIS HONOUR: Under the rules?

MS KENNY: Under the rules.

HIS HONOUR: Yes.

MS KENNY: But one would have to rely either upon the Act or upon Order 63. One must read Order 63 with Order 68 of the High Court Rules which adopts the rules of the High Court in relation to a petition.

HIS HONOUR: I was going to ask that.

MS KENNY: So, when one turns to Order 68, Rule 2.

HIS HONOUR: Perhaps if you read Order 68?

MS KENNY: Order 68, Rule 2, provides that:

These rules so far as they are applicable and are not inconsistent with this order extend and apply to proceedings in the court in the exercise of its jurisdiction as the Court of Disputed Returns.

That, in turn, would enable one to look to the provisions of Order 63, Rule 2, and apply upon the basis that there was no reasonable cause of action or the matter was an abuse of process. Fullagar J in case called Crittenden v Anderson took the same approach. In other words, he said that the equivalent of Order 68, Rule 2 - - -

HIS HONOUR: What is the citation for that?

MS KENNY: I will pass a copy up to your Honour. It is an unreported decision. It was in fact referred to by Toohey J in a case called Robertson but his Honour in that case decided that he need go no further. And I will just hand a copy to Mr Abbotto too. Your Honour will see on the first page that there is a discussion of the applicability of the equivalent of Order 63, Rule 2, that is, the former Order 44, Rule 1.

HIS HONOUR: Yes.

MS KENNY: His Honour in that case determined that as the rules of the High Court might be applied where not inconsistent in the Court of Disputed Returns then it was open to him to decide that the proceeding before him constituted an abuse of the process and he might for that reason stay it.

HIS HONOUR: Yes.

MS KENNY: Your Honour, as I said to your Honour, in a case called Robertson v Australian Electoral Commission which is reported volume 116 of the ALR 407. Toohey J referred to Crittenden v Anderson and said on page 410:

The respondent also seeks by way of further or other relief an order that proceedings on a petition be stayed pursuant to Order 63, Rule 2 of the High Court Rules on the grounds that there is no reasonable or probably cause of action of suit -

and he continues to set out the rules. He goes on to say:

Order 63, Rule 2 is available in proceedings before the Court of Disputed Returns but in light of my earlier conclusions, it is unnecessary to consider the operation of Order 63, Rule 2 in the present case.

And he cites Crittenden v Anderson.

HIS HONOUR: Yes.

MS KENNY: And, your Honour, it may be helpful to pass up a bundle of cases which I would refer to this morning.

HIS HONOUR: Yes.

MS KENNY: And your Honour will find Robertson - - -

HIS HONOUR: Amongst them.

MS KENNY: - - - is at the top at the top of that bundle and I have referred to the last page of the decision.

HIS HONOUR: Thank you. Yes.

MS KENNY: So, your Honour, I would apply on the basis that the petition is incompetent. There are some problems of publication and service but I would prefer to leave those to one side for the moment and deal with the substantive matter. There is also a difficulty in the naming of the respondent but it might be preferable to leave that to the end as well.

HIS HONOUR: Yes.

MS KENNY: The first ground on which I would submit that this petition is incompetent is that it seeks relief against the election of senators for all States and Territories and applying what your Honour said in Sykes v Australian Electoral Commission and in Pavlekovich-Smith v Australian Electoral Commission, which in turn followed what Brennan J had said in the Muldowney case, it would appear that the petitioner has no standing to challenge any election other than the election of senators for Victoria.

HIS HONOUR: What is the reference to Sykes?

MS KENNY: The reference to Sykes, your Honour, is in volume 115 of ALR 645 and the relevant passages appear between pages 646 and 647 and, your Honour, in that case, Mr Sykes had challenged the elections for the House of Representatives and for all senators. Mr Sykes himself was qualified to challenge the election for the Division of Wills and your Honour determined that the petitioner was incompetent insofar as a challenge was made to all the elections and your Honour further determined that the petition could be read down to be limited to a challenge simply to the Division of Wills.

HIS HONOUR: Yes.

MS KENNY: And upon that basis, your Honour ordered that no proceedings be had on the petition and the petition be dismissed.

HIS HONOUR: Yes.

MS KENNY: Your Honour, it may be helpful to turn to those pages at this point because it really sums up the nature of the problem and you will find, I think, it is about the second case in the bundle.

HIS HONOUR: Yes.

MS KENNY: Your Honour will see that the head-note tells one sufficiently that Mr Sykes challenged the general election, that is, of all members of the House of Representatives and the election of senators for the Territories; that, in fact, he was qualified to challenge the election of the Division of Wills. And then if one turns to the middle of page 646, your Honour there said:

The orders sought in the summons are that no proceedings be had on the petition on the ground that it does not comply with the requirements of section 355(a) and 355(aa) of the Act and that the petition be dismissed.

And I shall not read further, your Honour. And the next paragraph commenced:

In the first instance, the petition disputes each seat in both the Senate and House of Representative polls of 13 March and 17 April 1993 for the Commonwealth Parliament.

And then in the next paragraph, your Honour comes to this matter:

Strictly speaking, it is unnecessary to go to these grounds because of the nature of the relief claimed in reliance upon them. That relief is that a declaration ...(reads)... see the dicta of Gibbs CJ in McKenzie v The Commonwealth.

And your Honour then went on to hold that a claim inference arises from the provisions of the Act and, in particular, section 355(c) which prevents a petitioner from challenging any election other than that at which he was a candidate or that in which he was qualified to vote.

HIS HONOUR: And that would invoke section 358?

MS KENNY: Yes, your Honour, it would

HIS HONOUR: Yes.

MS KENNY: One must really read section 355, subsection (c), with section 358. 355 requires that every election satisfy certain matters and in subsection (c)(i) matter, is that it be signed by a candidate at the election in dispute or by a person who is qualified to vote thereat. Mr Abbotto was certainly a candidate for the election of senators for Victoria and he is competent in relation to a petition challenging that election but in relation to any other election and then that takes one through to section 358.

HIS HONOUR: Yes, I follow.

MS KENNY: Your Honour, in addition to your Honour's decision in Sykes and the decision in Muldowney, your Honour applied the same rule in a case called Pavlekovich-Smith v The Australian Electoral Commission and your Honour will find that is number 3 or 4 in the bundle. That, again, is reported in volume [1993] HCA 37; 115 ALR 641.

HIS HONOUR: I have forgotten that one.

MS KENNY: Your Honour will see that Mr Pavlekovich-Smith also sought orders invalidating the entirety of the Federal Elections and your Honour on the same day decided that that petition was incompetent for the same reason. Your Honour, your Honour sets out your reasons between pages 642 and 643 of the report. At line 39 on page 642, your Honour sets out, again, the nature of the relief claimed in the petition and the decision of Brennan J in Muldowney.

HIS HONOUR: Yes.

MS KENNY: And then your Honour says - and this, for present purposes - is pertinent. At page 643:

It is not, I think, possible to read down the relief claimed in the petition by confining it to the election of a member of the House of Representatives for the ...(reads)... that is sufficient to dispose of the matter but it is perhaps desirable to deal with other matters.

And the matter that I draw your Honour's to is that in Pavlekovich-Smith, the petitioner clearly sought relief extending to the whole of the elections and your Honour considered the question, could the petition be read down, and decided that, no, in light of the petition claimed by the petitioner that was not possible.

[9.48am]

And your Honour, for the sake of completeness, Toohey J in Robertson v Australian Electoral Commission, [1993] HCA 50; 116 ALR 407, adopted precisely the same approach at pages 408 to 409 of the report. Your Honour that Toohey J referred to your own decisions in Pavlekovich-Smith and Sykes and to the decision in Muldowney, and at about line 12 on page 408 said:

The matter is put beyond question when regard is had to section 221 of the Act which makes it clear that an elector shall only be admitted to vote for the election of senators for the state or territory for which he or she is enrolled.

And I shall not go on, your Honour, because it is not pertinent in this case. But his Honour clearly took the same view and his Honour added at line 21:

It follows that the petition must be dismissed unless it is possible to ...(reads)... was not what the petitioner sought.

That is clearly the case here and his Honour sets out why. And his Honour then determines that the petition could not be read down.

HIS HONOUR: Yes.

MS KENNY: That then, your Honour, takes me to, I think, to the petition. I would direct your Honour's attention first to paragraph 7 and paragraph 9 of the petition. The first paragraphs of the petition appear to relate to procedural matters. Paragraph 7, the petition says:

The petition relates to the writs which were issued on 29 January, the election of half the senate for each State of Australia.

And then in paragraph 9:

The elections were held on 2 March 1996 which said elections form part and indeed are the basis of these proceedings.

And then one must turn to the relief which is claimed at pages 9 and 10 of the petition. The petition says:

I pray this Court for the following reliefs -

and, your Honour, I shall not read them out, but your Honour will see that in each case the petitioner claims a declaration that the 1996 election for Federal Senate be declared void and in paragraph 3:

The petitioner seeks a re-election for the Federal Senate for Australia as a whole.

So, your Honour, in my submission it is clear that on the terms of the petition the petitioner seeks to challenge the entirety of the election of each senator for each State and Territory in Australia. That the petition is not one which can be read down for the reasons set out in Pavlekovich-Smith v Robertson, and upon that basis the petitioner is incompetent.

HIS HONOUR: Yes.

MS KENNY: Your Honour, that is my first ground. Thereafter I will take your Honour through to the grounds raised by the petition, and it would be my submission that in each case the grounds fail to satisfy the requirements of section 355, paragraph (a). That is the petition fails to set out facts which would justify the grant of relief sought.

HIS HONOUR: Well, really what the petition says, in fact, is that those sections of the Electoral Act 1984 allowing for the system of group voting are invalid, does it not?

MS KENNY: Yes, it does, your Honour.

HIS HONOUR: We do not need many facts for that, do you?

MS KENNY: Well, the simple answer to that, your Honour, is that no. Although he does also have some other allegations and I was going to deal with them.

HIS HONOUR: Well, perhaps if you do, yes.

MS KENNY: But might I deal with the first matter.

HIS HONOUR: Yes.

MS KENNY: That is, the question of whether these provisions can be invalid. In my submission, your Honour, they cannot. His Honour Justice Gibbs, as he then was, in the case McKenzie, which your Honour will find in the bundle, had cause to examine the group ticket provisions. And his Honour held in that case which is reported in volume 59 of the Australia Law Journal Reports at page 190 that the provisions were not invalid.

HIS HONOUR: Just a second, I do not seem to have located that. McKenzie?

MS KENNY: McKenzie v Commonwealth of Australia. It is a two page, your Honour. It is very brief.

HIS HONOUR: I have got it. Yes.

MS KENNY: Your Honour will see that his Honour the Chief Justice - I beg your pardon, your Honour. I think I referred to him as Justice Gibbs a moment ago - his Honour the Chief Justice was asked to consider the validity of what I have termed the group ticket provisions of the Act. And your Honour will see that set out on the right hand column, on page 190, are all the provisions bar one upon which Mr Abbotto lays his complaint. And the only provision which is absent is section 211A, which your Honour, I may call the Harradine amendment if I may. That is the provision which allowed a sitting senator the ability to set forth a statement of his preferences. And I think only Senator Harradine has been the person to take advantage of that thus far. But each of those provisions were considered by his Honour the Chief Justice.

HIS HONOUR: Well, that is not something which the petition complains of particularly.

MS KENNY: It appears in his petition, your Honour, and I do not understand him to be complaining upon it in full, but he would appear to be complaining about all the group ticket provisions.

HIS HONOUR: Yes.

MS KENNY: Including section 211A, and there is a reference scattered throughout the petition to that provision.

HIS HONOUR: What I am saying is, he does not claim invalidity of section 211A on any different ground.

MS KENNY: No, your Honour. Each ground - he relies upon the same basic ground, which is in substance that these provisions were an injustice to an independent candidate who cannot take advantage of the group ticketing provisions.

HIS HONOUR: Well, one can see that.

MS KENNY: One can, and his Honour the Chief Justice was asked to consider exactly that submission in McKenzie. And if your Honour turns to page 191 of the report your Honour will see between the first full paragraph on the lefthand side. His Honour said:

As the plaintiff has rightly pointed out a candidate who is not a member of a registered political party may be disadvantaged because the name of the party, if any, to which he belongs would not appear on the ballot paper. ...(reads)... are open to objection on constitutional grounds.

And, your Honour, I shall not read the entirety of the next paragraph save that your Honour will see a question was raised about section 16 of the Constitution, and his Honour dismissed that ground by saying:

Members of Parliament were organised in political parties long before the Constitution was adopted and there is no reason to imply ...(reads)... that such a method is forbidden.

The next paragraph perhaps sums up best Mr Abbotto's complaint:

The second principle ground taken by the plaintiff is that it offends general principles of justice. To discriminate against candidates who are not members of established parties ...(reads)... to use the words of Stevens J in Attorney General; ex rel McKinlay v The Commonwealth.

His Honour says:

In my opinion it cannot be said that any disadvantage caused by the sections of the Act ...(reads)... beyond the power of the Parliament to Act.

And, your Honour, there is no need, I think, to read further.

HIS HONOUR: Yes.

MS KENNY: And in my submission there is section 211A is in the same position as the other provisions, and your Honour ought to follow what was there said by his Honour the Chief Justice. There are other reasons one might put in support generally of the matter put by Gibbs CJ. The first is that Mr Abbotto relies upon section 10 of the Constitution. And section 10 is one of those provisions, as your Honour knows, which says "until the Parliament otherwise provides." And in this case, in my submission, Parliament has otherwise provided by providing for the style of the ballot paper and the voting procedure to be used in a Senate election. So section 10 is for these purposes spent.

[9.59am]

HIS HONOUR: The petitioner also says it offends the Equal Opportunity Act, the Victorian Equal Opportunity Act.

MS KENNY: Yes, he does, your Honour, and I will turn to that. There is no Equal Opportunity Act of the date to which he refers. The current Equal Opportunity Act is the Equal Opportunity Act of 1995.

HIS HONOUR: 1995?

MS KENNY: 1995. It repealed the legislation to which the petitioner refers, that is the Equal Opportunity Act and it repealed it in section 1C.

HIS HONOUR: It seemed clear that the Equal Opportunity Act of Victoria cannot govern conduct of Federal elections. Why?

MS KENNY: No, your Honour. The answer must lie, your Honour, in section 109 of the Constitution.

HIS HONOUR: I wonder.

MS KENNY: Well, there are two answers, really. The first one is that there is no provision of which I am aware in the equal opportunity legislation as it stands in Victoria which would affect these provisions in any event.

HIS HONOUR: Yes.

MS KENNY: That is the simple answer. The second answer is that even if there were an inconsistency, then section 109 would provide that the - - -

HIS HONOUR: I just wonder whether they could apply, anyway, whether it would be a valid Victorian law, if it did purport to apply to the elections.

MS KENNY: I think it would not, your Honour.

HIS HONOUR: Why? Why not?

MS KENNY: Well, there would be a question about whether State legislation could purport to bind in any way a Commonwealth election could - - -

HIS HONOUR: Could it be beyond power of the Victorian Parliament?

MS KENNY: It would be beyond power.

HIS HONOUR: And if it were not beyond power, would it - well, it would come down to a question of power to affect the elections of another polity.

MS KENNY: It would be clearly invalid, your Honour, on the basis that at least that area would lie outside the reach of State law.

HIS HONOUR: Yes, and no question of section 109 would arise then.

MS KENNY: That is correct, your Honour. I took 109 as the simple answer, but it is perhaps not the correct answer.

HIS HONOUR: Very well. Yes.

MS KENNY: The other matters to which Mr Abbotto referred, I think, were the Discrimination Act of 1975 and some other provisions of the Electoral Act. So far as the Discrimination Act is concerned, Mr Abbotto refers to the 1975 Discrimination Act of the Commonwealth. At best, I think, your Honour, and that must be a reference - I cannot see how it could be applicable, but there is - the Sex Discrimination Act is an Act of 1975. There is no other Commonwealth Act which bears that date and, in any event, your Honour, there does not seem to be any other discrimination legislation which could possibly bear upon the questions raised by Mr Abbotto, so that one I think can put those grounds to one side.

Mr Abbotto also raises questions in relation to section 327 and 329 of the Commonwealth Electoral Act. He relies upon section 327(1) and he also relies upon section 327(2)(d) and in my submission, neither of those provisions could have any application to the matters of which he complains and, in any event, the matters of which he complains are set out and authorised by Parliament in the Act itself, so they cannot be matters to which 327 is intended to apply.

Your Honour will see that subsection 2 is clearly inapplicable because it relates to the making of donations to a political party first, which is not in question here and subsection 1 relates to the hindering or interference with the free exercise or performance of a political right and at best what can be said of these provisions is that they offer the voter a choice in the way in which he is to express his preferences at the election.

The other provision to which Mr Abbotto refers is section 329 and I understand your Honour has already had an occasion to consider the argument placed by Mr Abbotto. The petitioner's argument, as I understand it, is that the ballot paper is likely to mislead or deceive an elector in relation to the casting of his vote, because it might appear to an elector that he could manufacture a square at the top of the independent's column, and your Honour had occasion to consider a similar argument made by the present petitioner in case numbered M13 of 1996 Re Australian Electoral Officer; ex parte John Murray Abbotto, and your Honour will find a transcript of that.

HIS HONOUR: It is reported, I think, in 70 ALJR.

MS KENNY: Thank you, your Honour.

HIS HONOUR: Page 493.

MS KENNY: Thank you very much. In any event, your Honour will see that in that case Mr Abbotto made a similar argument in relation to advertisements which set out a ballot paper, and your Honour rejected the submission upon the basis that all that was offered by the advertisement and in turn by the ballot paper was a choice pursuant to which the elector might choose to vote above the line, in a box if there was a box, or below the line in relation to each and every other candidate to which no box applied. So I would rely upon your Honour's decision in volume 70 ALJR.

That, I think, covers the grounds raised by Mr Abbotto. He does raise the general point, not as a constitutional issue but as a general point, that but for the voting procedure he, the petitioner, would have received more votes, and he then submits that he as the petitioner has been unfairly disadvantaged, but in my submission the complaint discloses no illegality, and if it discloses no illegality it can constitute no basis for challenging the validity of the election.

There are other matters, too, your Honour, that are not raised by Mr Abbotto in his petition, but there is always the general matter of whether, even if one of the grounds were capable of constituting a legitimate or substantive ground for challenging the election, has the petitioner set forth any facts which would show that the election was likely to have been affected, and your Honour will recall that that arises by reason of the provisions of section 360 of the Act - by reason of the provisions of - - -

HIS HONOUR: 355.

MS KENNY: Thank you, your Honour. No, your Honour, I was actually - it does arise by reason of 355, but I was actually not intending to take your Honour to that provision alone. I was intending also to take your Honour to that provision which says an election may only be set aside upon a ground of illegal practice, and your Honour, I found what I am looking for. Section 362(3) sets out:

The court shall not declare any person returned as elected, was not duly elected, or declare any election void on the ground of an illegal practice committed by any person other than the candidate, unless the court is satisfied that the result of the election was likely to be affected.

And illegal practice is very broadly defined in the Act in section 352(1) to mean a contravention of the Act or the regulations, so that if it were possible to say that there had been some contravention of the Act or the regulations, leaving aside the question of constitutionality, then it will also be necessary for Mr Abbotto to set out that there were facts which suggested the result of the election was likely to be affected, and in this case, in my submission, Mr Abbotto has not done so. In part of his petition he has referred to occasions when one elector might have voted differently, and two other electors have said they found it confusing, but that falls far short of showing that the result of the election would have been affected, and in my submission that would be another matter which would vitiate the petition.

[10.11am]

That would, in turn, your Honour, take your Honour, as your Honour rightly pointed out, back to the provisions of section 355, paragraph (a). There would simply not be enough facts to justify the grant of relief which Mr Abbotto seeks. And your Honour may recall that in Hudson v Lee reported in volume 177 of the CLR 627 and, in particular, at page 631, Gaudron J took the view that section 362 of the Act provided exhaustively as to the general grounds upon which an election may be invalidated or declared void.

HIS HONOUR: Yes.

MS KENNY: And that matter was examined again by Toohey J in Robertson in volume 116 of ALR 409 and his Honour took the view that her Honour's views were persuasive but that he had no need to express a concluded view. Your Honour, I have not taken you to the affidavits in support of the motion. They do no more than set out the fact that the election was held and that Mr Abbotto was in fact a candidate at the election and that he stood as an independent candidate and assented to be described as an independent candidate. The nomination of Mr Abbotto is included and a copy of the assent is attached and the relevant ballot papers are also exhibited to the affidavit of David Roy Muffet sworn on 14 April 1997.

There is another short affidavit of Mr Stephen Lucas which does no more than exhibit a letter which was sent by the solicitor for the respondent to Mr Abbotto asking him what were his intentions in relation to the proceeding and a reply from Mr Abbotto indicating that he wished to proceed with it and indicating that he wished to challenge all the purported elected senators. That, I think, your Honour, deals with each of the grounds raised by Mr Abbotto.

HIS HONOUR: It is not necessary to deal with the questions of service and like, is it?

MS KENNY: No, your Honour, that would only be necessary in the event that your Honour found that the petition was competent to proceed. Your Honour will recall in Sykes v Australian Electoral Commission adopted the same path as it does so here. It asked your Honour to examine the petition. It made submissions to the effect that the petition was incompetent and it put to one side the matter of service and of publication. It would seem, your Honour, that the relevant provisions of order 68 have not been complied with at all. In other words, the petitioner has not yet published a copy of the petition in the Commonwealth Gazette or in any newspaper circulating and in the official Gazette of the State in accordance with order 68, rule 3, and nor has the petitioner served an office copy of the petition on each of the candidates whose election is in dispute.

HIS HONOUR: Well, that is all of the Senate candidates?

MS KENNY: That would be all of the Senators in accordance with order 68, rule 5. Mr Abbotto, I think, may have a submission to make to your Honour upon that matter but neither of those matters, in my submission, has yet been complied with. If your Honour were to entertain and uphold the submission that I make then it will not be necessary to proceed with those matters. Your Honour, I did say at the outset that there is a problem in the naming of the respondent.

HIS HONOUR: Yes.

MS KENNY: There is no such person as the Commonwealth Electoral Officer. There is, of course, and Australian Electoral Officer and that appears in section 5 of the Act.

HIS HONOUR: Who is the proper respondent?

MS KENNY: In my submission, the proper respondent would be the Australian Electoral Commission. There is an Australian Electoral Officer for each.

HIS HONOUR: Well, who do you appear for?

MS KENNY: Your Honour, I have a kind of wandering appearance. I appear for the respondent howsoever described, I think.

HIS HONOUR: Yes.

MS KENNY: At this point, it would properly be the Australian Electoral Commission.

HIS HONOUR: Well, should we correct that?

MS KENNY: I think we should, your Honour.

HIS HONOUR: Mr Abbotto, it is a technical point, do you apply to amend the name of the respondent from Commonwealth Electoral Officer - there apparently is no such person - to Australian Electoral Commission?

MR ABBOTTO: I have no objection to that, sir.

HIS HONOUR: Well, do you apply for it?

MR ABBOTTO: In fact, I would make such an application, yes.

HIS HONOUR: Yes.

MR ABBOTTO: Yes.

HIS HONOUR: And you do not object?

MS KENNY: I do not, your Honour.

HIS HONOUR: Well, I make an order that that name be amended, yes.

MS KENNY: Thank you, your Honour.

MS KENNY: Your Honour, unless your Honour has any further question at this point, I have nothing I can add.

HIS HONOUR: Thank you, Ms Kenny. Mr Abbotto.

MR ABBOTTO: Yes, sir. I would like to begin with the way I would end my submission with the Court's leave, is that the bottom line of this entire petition is that had the positions been reversed in the last election, that is, that the parties would have been all listed at the bottom of the line and all the electorate would have had to number each of those squares, for example, 1 to 49, in Victoria; 1 to 52 in Sydney and so on, and all the independents had been placed at the top and the electorate would have only had to place a number 1 on any of those squares at the top then the result of the election would have been very, very different. And, in fact, it was anticipated in this court when I came before you, that had the election continued as it was programmed, that the independents would have, at best, brought back a result of less than 4 per cent. The result was, in fact, 3.55 per cent - anticipated.

I submit, sir, that there are many ins and outs of the legislation, whether it is constitutional or in the Commonwealth Electoral Act but when I received a letter from the Government Solicitors dated 20 December, I was told that or it stated that I had not complied with order 68, rule 5. I responded merely that at this point in time I was merely challenging the Act not each candidate. It is true that each candidate would have been an incidental or coincidental, if you will, to the challenge but at this point in time the whole basis of the action is centred upon the Act itself not each candidate.

Now, I received no further correspondence from the Attorney-General's Department save for the notice of motion and the subsequent affidavit. I have heard a lot of argument about certain sections and acts, etcetera, but the only thing I would ask the court to do is to concentrate merely on what the notice of motion points out to you and that is that sections 355(a), 355(aa), and 355(c) of the Commonwealth Electoral Act which states that there has to be certain compliance, etcetera, etcetera. So, I submit that I have complied with those sections in full and, in any event, I point to section 366 of the Commonwealth Electoral Act which states:

The Court of Disputed Returns shall not declare that a person returned as elected was not duly elected or declare an election void by reason of that -

I am terribly sorry, I am reading the wrong one here. 364, I should point out to you. I do apologise. 364 states:

The court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.

I interpret that to mean, sir, that the fundamental importance of an election is exactly that to a country. I am here not to argue legal technicalities as such but rather as I see the way the elections were carried out, I was fronted as a citizen and as a candidate in the last election with the Senate ballot paper. Very confusing from the beginning to the end.

HIS HONOUR: Well, really, what you are saying, Mr Abbotto, is that section 211 and section 211(a) which produced that situation - produce, as it were, that type of ballot paper - are invalid. I think that must be what you are saying?

MR ABBOTTO: Well, yes, sir, I believe I have submitted that in my petition.

HIS HONOUR: Yes.

MR ABBOTTO: Yes.

HIS HONOUR: Yes, I think you have.

MR ABBOTTO: And that is the whole crux of the whole point.

HIS HONOUR: Yes.

MR ABBOTTO: I mean, I am saying, well, if the peoples are given something to chose from - without trying to be a comedian - for example, if we are given the choice between a donkey or a jackass, we are hardly going to come out with a stallion and this is the whole point; the whole crux of the argument. If I may, I would, with the court's leave, read from my petition so that - - -

HIS HONOUR: No, no, we have read it.

MR ABBOTTO: We have read it all? Very well, sir.

HIS HONOUR: A number of times, Mr Abbotto. But what you do have to face it up is that there is a decision of Gibbs CJ in McKenzie's case and you have been given a copy of that which considers section 211 and arguments such as you put which are that it results in a unfair situation and rejects that contention. What do you say about that?

[10.22am]

MR ABBOTTO: Well, first of all I say, sir, that I would object to any other issues being canvassed by this Court, because the notice of motion submitted by the counsel for the Commonwealth Electoral Officer, dealing only that my petition be dismissed on the basis of section 355A - AA and C. Now, I could have canvassed all the other issues, had it been brought up. Clearly, they were not. They have been brought up now at the bar table. I am not too sure that that can be acceptable by the Court. If your Honour rules that it is so, that is so.

HIS HONOUR: This is meeting your argument in the petition. There is no reason why the respondent cannot do that. And what is said in McKenzie's case is that notwithstanding that the form of the ballot paper under section 211 is as you describe it. Nevertheless, section 211 is a valid piece of legislation. Now, section 211A was not there at the time McKenzie's case was decided, but the same reasoning would apply in relation to it. And I do not think you put any different argument in relation to section 211A as opposed to section 211.

MR ABBOTTO: Well, in my submission, sir, I think I have dealt with some argument to that in that I think I stated, without going through my petition at this moment, that the Anti-Discrimination Act was prior to that Act of 211, therefore in my view the Anti- Discrimination Act would override the legislation which pertained after the Anti-Discrimination Act. And in my view, clearly there was discrimination in the way the last elections were formed on the ballot paper, and I have given my reasons. But I have also faxed the request to the Electoral Officer that I be given the ballot paper returns of any and all of those that people in total confusion or frustration, or both, would have actually placed that one above the column where the independents were listed.

Now, I also submitted that argument before you, sir, in this Court, and I stated and pointed in fact to the scrutineers handbook put out by the AEC.

HIS HONOUR: This is on the last occasion?

MR ABBOTTO: That is right, when in fact they themselves pointed to that possibility. But what would happen, I would imagine, is that I have - many people have said to me that they each in fact did that, and of course now what we have is a donkey vote and not counted. But I also have - many people have told me personally, and I would be only too happy to get their affidavits and bring them to the Court, that they wanted to vote for me, but became confused and frustrated, and as a consequence voted for someone else. So clearly, the coercion of the electorate is in my view without question. Now, I have been hearing, for example, counsel submit as argument section 362 of the Commonwealth Electoral Act, where counsel states that:

The Court does not have the power to declare an election void, other than as the Act states, at (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.

I read that - what it means that if it can be shown to the Court that a different result could have been obtained had the format been different, then it must leave a question mark on the election as a whole.

HIS HONOUR: And it is the whole of the Senate election that you wish declared void?

MR ABBOTTO: Well, sir, it is a Federal Act. It is the Commonwealth Electoral Act, and the Act applies equally to all states, in my view.

HIS HONOUR: So the answer is yes?

MR ABBOTTO: Yes. Yes, I do. So my submission, sir, is that I have submitted to the Court certain evidence that there are anomalies in the last Federal election of the Senate, including the fact that in the House of Representatives, the Lower House, each candidate was in fact treated equally. That is in the Green paper the electorate was given the choice equally of each candidate, and besides the name of each candidate were listed independents or whichever party they belonged to. Yet there was a very vast difference in the Senate whereby each party was given the choice, or party gave their choice to their electorate to either vote in their own preferences, or leave the preferences to the party as a whole. Therefore, it would take less time for the electorate at the booths, and the electorate did not concern itself with who was who and what was what.

HIS HONOUR: Mr Abbotto, I am not suggesting for one moment that there is not force in what you say. But really you must address yourself to the validity of the sections that produce that situation, the sections of the Electoral Act.

MR ABBOTTO: Yes, sir. Well, I rely heavily on 362B of the Electoral Act. I rely on 364, which states that I can submit to the Court, without worrying about the legal technicalities or proof or whatever the case may be. But in a sense, put my case more to a pleading, rather than specific sections, because I think those two sections do apply to the entire argument that I am placing to the Court. Of course the Anti-Discrimination Act may come in or may not come in, but those two sections, in my view, must have some sort of force behind the argument I am trying to put to the Court, and that is that had the ballot paper been structured differently, that is that each of the independents were given the same opportunities as the groups, then there would have been a very different result. Of that there is no doubt.

People generally are not going to study forms. They want to get in and out quickly. And in essence, that comes from the fact that the Electoral Officer acknowledged the confusion to the Senate elections and hence changed the format. Instead of having the electorate forced to number each and every square, they conceded that it was much better for the electorate to be given the choice of just numbering the one. And as a consequence, less informal votes were registered after that. But that opportunity is not afforded to the independents. It therefore follows that the independents have no chance at all of being elected. And the evidence is exactly that. And that ends my submission, sir.

HIS HONOUR: Thank you, Mr Abbotto. Do you wish to say anything in reply, Ms Kenny?

MS KENNY: No, your Honour, I do not. Thank you.

HIS HONOUR: I will consider my decision in this matter.

AT 10.30 AM THE MATTER WAS ADJOURNED

INDEFINITELY