Case: McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734
Outcome: applied
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. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J. Moreover, inherent in the contention of the Petitioner is perhaps the further contention that the Corporation owed a duty to extend to him greater publicity than he maintains he received. But there is no such duty. In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 740 to 741, Hayne J concluded: [26] ... the petitioner makes essentially two complaints: the first about media coverage (or the lack of it) and the second about the "above the line" voting system. I deal with them in turn. [27] The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral process. As counsel for the respondent pointed out, much of this part of the petition is copied from the report of the argument of Sir Maurice Byers QC in Australian Capital Television Pty Ltd v The Commonwealth [(1992) 177 CLR 106 at 109 to 113]. Central to the petitioner's case in this respect is the assertion in his petition that representative and responsible government: requires that every person and every political candidate have the entitlement to make his or her views known on political issues not only between elections but also especially during election campaigns. It requires that all political candidates have an equal opportunity to be elected and that the voting process should unfairly disadvantage no political candidate. That assertion must then be understood in light of other provisions of the petition in which it is made plain that the conduct of which complaint is made is the decision of persons associated with radio or television stations not to give coverage to the petitioner's platform or press releases. [28] The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication [ Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520]. The petitioner's case depends upon him having some right to require others to disseminate his views. But as was said by the court in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; [(1997) 189 CLR 520 at 560]: " ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power . As Deane J said in Theophanous [ Theophanous v Herald &amp; Weekly Times Ltd [1994] HCA 46 ; (1994) 182 CLR 104 at 168. See also at 146 to 148], they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v Commonwealth [1994] HCA 44 ; [(1994) 182 CLR 272 at 326], Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said [1994] HCA 44 ; [(1994) 182 CLR 272 at 327]: 'The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.'" The petition as filed fails to comply with s 355(a) and the relief as sought in the Corporation's summons should thus be granted. Nor does it comply with s 355(aa). No occasion therefore arises to consider what relief may otherwise have been available to the Petitioner had he filed a petition which complied with s 355(a). But it may be of importance for the Petitioner to know that orders 1 and 2 as sought in his petition would not have been made even had he complied with what he may wrongly perceive to be the " technical " requirements imposed by s 355. But, whatever may be the other powers that the Court may have, it is not considered that it has power to make such orders as are sought in the petition in orders (1) and (2). In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 736 to 737, Hayne J made the following observations when declining like relief: The petition [10] In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election [ss 211 and 211A], and what has become known as voting above or below the line [s 209(1)]. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected. ... The claims for relief other than avoidance of the election [12] The petitioner says, at the start of his petition, that he is not a lawyer and asks the Court to give him whatever assistance is necessary to ensure "the lawful and democratic conclusion" of the matter. But even giving the most generous construction to his petition, it is plain that much of the relief sought is relief of a kind that cannot be given. ... The publicity claim [17] It is not clear what the petitioner means when he says that the Court should "informally instruct" the chiefs of staff of media bodies about how they should act in the future. If he seeks to have the Court give some advice to these persons, it is enough to say that this is not the Court's function. If he seeks to have the Court make some order about future conduct, there is no basis in the Act for concluding that the Court has any power to do so. There being no power to do so, the further questions that might then have arisen about framing an order with sufficient certainty need not be considered. The relief claimed cannot be given. This decision has since been applied to decline like relief in Gunter v Hollingworth [2002] FCA 943 at [44] per Cooper J.