Election Litigation

Injunctions

During an election period, injunction applications are normally made under s 383 of the Commonwealth Electoral Act 1918 (the Act). This section allows either the Electoral Commissioner or a candidate at the federal election to apply to the Federal Court for an injunction to stop potential breaches of the Act being committed.

During the election period, and up to the close of polling, no applications were filed under s 383 of the Act. There was one application under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) challenging the determination of the order of names on the ballot paper for the Division of Gellibrand in Victoria. This action arose as a result of the AEC’s decision to undertake a re-draw of the procedure provided for in s 213 of the Act, following an error that occurred during the original procedure.

The challenge was dismissed in the first instance but was appealed to the Full Court of the Federal Court. Despite some criticism of the AEC’s decision to undertake the entire procedure in s 213, the Full Court did not order the AEC to remedy the error by undertaking the process again. See Assaf v Australian Electoral Commission {2004} FCAFC 265 (30 September 2004).

Petitions to the court of disputed returns

Two petitions were accepted for filing by the High Court, sitting as the Court of Disputed Returns.

Hudson v Entsch [2005] FCA 460

This was a petition challenging the return of Warren Entsch as the Member for Leichhardt in Queensland. The petitioner, Mr Hudson, alleged that Mr Entsch had contravened s 327 of the Commonwealth Electoral Act 1918 (Cth). Section 327 makes it an offence to ‘hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.’

Mr Hudson had erected signs in and around Cairns depicting a caricature of Mr Entsch and thus opposing his candidature. When interviewed by local television news about the signs, Mr Entsch suggested that the signs were defamatory. He also suggested that people knock the signs down. It was the act of inducing people to knock down the signs that grounded Mr Hudson’s allegation that Mr Entsch had contravened s 327.

On 31 March 2005, Dowsett J dismissed the petition holding that the alleged conduct in question did not come within the terms of conduct prohibited by s 327: at [34], [49], [56] and [57]. The written judgment was handed down on 26 April 2005 and is available on AustLII at http://www.austlii.edu.au and can be located by following the links to the Federal Court.

Wheeley v the Australian Electoral Commissioner [2005] FCA 473

This was a petition challenging the return of Gary Hardgrave as the Member for Moreton in Queensland. The petition was concerned with the operation of compulsory preferential voting prescribed by s 240 of the Electoral Act.

On 21 April 2005, Kiefel J noted that the validity of s 240 was confirmed in Langer v Commonwealth (1996) 186 CLR 302. Further, her Honour also noted that the petition failed to comply with the requirements in s 358 of the Electoral Act which operated as a bar to proceedings: at [18] and [19].

The judgment is available on AustLII at http://www.austlii.edu.au and can be located by following the links to the Federal Court.

Prosecutions

As at June 2005, no proceedings had been instituted by a public authority (i.e. the AEC, DPP, AFP) pursuant to Part XXI of the Act.

The AEC understands that one private prosecution under s 350 of the Act was commenced in the Tweed Heads Magistrates Court in New South Wales. The AEC is not a party to the matter and understands that it has not yet been heard.