Case: Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395
Outcome: discussed
20 April 2009, directions were made in this Court to accommodate the hearing of the summons in advance of the hearing of the petition. A like course, it may be noted, was pursued by Her Honour Justice Bennett in Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395. To entertain the Corporation's summons in advance of the hearing leaves outstanding a request made by the Petitioner for the production by the Corporation of a substantial number of documents. The production of those documents, upon the case for the Corporation, is unnecessary and irrelevant. Detailed written submissions have been filed, including submissions filed by the Australian Electoral Commission. The course pursued at the hearing of the summons on 30 April 2009 was to invite the Petitioner to put all such submissions as he thought appropriate in advance of hearing submissions from the Corporation. In that manner an understanding could be gleaned as to both the issues sought to be raised by the petition and how the Petitioner envisaged further materials could be called in aid of those issues. 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). The " very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned.