Case: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645
Outcome: cited
relationship between these two requirements, however, involves some " obscurity ". Dawson J in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 addressed the position as follows: It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on. The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity [references omitted]. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The court would then be required to try the petition even though on its face it could not succeed. Despite that " obscurity ", it is " clear from s 358(1) that no proceedings may be had on the petition unless it sets out the facts relied on to invalidate the election ": McClure v Australian Electoral Commission [1999] HCA 31 at [23] , [1999] HCA 31 ; 163 ALR 734 at 739 per Hayne J. But there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J. The primary submission of the Corporation and the Commission, it is considered, should prevail. As they correctly contend, two fundamental difficulties confronting the Petitioner are insurmountable, namely: (a) there is an absence of any statement of those facts necessary to establish any " illegal practice "; and, even assuming that such facts could be distilled from the petition; (b) there is an absence of any facts upon which the Court could be " satisfied that the result of the election was likely to be affected " within the meaning of s 362(3). Even such a rudimentary fact as the person who committed the " illegal practice " is left unidentified in the petition. Section 355(a) does not require that there be " set out " in the petition the particular provision of the Commonwealth Electoral Act which has been contravened; but it does require there to be " set out ": those facts which identify who it was that published or caused to be published, permitted or authorised the publication of the webpage (s 328A(1)(a)(i) or (ii)); and those facts which might establish that the electoral advertisement was intended to affect the voting in an election (s 328A(1)(b)). None of those facts, or facts relevant to the other elements of s 328A , are " set out ". During oral submissions, the Petitioner identified the person who it was said published the electoral advertisement as Mr Oakeshott &#8212; but the facts have to be in the petition and not oral submissions. And there is also an absence of any fact set forth in the petition upon which any view at all could be formed as to the effect of any such practice upon the election. Those facts must also be set forth in the petition: Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395. Bennett J there concluded: [15] Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied. [16] I accept the Commission's submissions that the statutory threshold has not been established. The petition does not set out the essential facts relied on to invalidate the election as required by s 355(a). Nor is there any further evidence upon which the Court could now be " satisfied that the result of the election was likely to be affected " by the illegal practice to which the Petitioner refers. An Affidavit as filed on behalf of the Corporation establishes that the results of the election for the seat of Lyne were that the First Respondent, being the candidate who won the election , polled 47,306 votes (63.8% of the vote); the Petitioner polled 400 votes (0.54% of the vote).