Case: Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223
Outcome: followed
The Commission submits that, as pointed out by Gaudron J in Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225, 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 that raises a matter or matters by which the election was likely to be affected, such as an assertion ' that goes to or bears upon the casting or counting of votes '. 10 The petition does include some alleged facts under the heading "The Senate Election Facts". Apart from setting out some general matters about "above and below the line" voting, the following facts are alleged, described as "particulars": (xxxi) The above the line groups especially like minded ones are known for doing preference swaps or deals which create preference flows that either enhance or restrict a group vote tally to reach the required Quota to become elected or excluded, so the preference flow is most important to parties who fail to gain the quota at first preference. (xxxii) The inclusion or exclusion of above the line groups with their preference "deals" is crucial in the Senate preference system for any group to achieve quota or deciding last Senate spots. Is there a remedy for unscrambling election Senate results if a group is removed from the election after the votes have been cast and counted? (original emphasis) 11 These alleged facts do not address the matters raised in Webster . Read beneficially to Mr Smith, they do suggest that the existence of a party as a group affects the actual votes recorded and also the directed distribution of preferences. That distribution may be influenced and affected as alleged by ' deals done prior to the election for the distribution of preferences '. 12 Mr Smith, in his submissions, made it very clear that in questioning whether there was a way of "unscrambling" election results, his case as set out in those alleged facts is that the Senate election is a complex system of preference votes that are ' non-lineal '. He says that if a party is removed, there is no process available by any ' lineal means ' to know what would happen and that, if the party were not on the ballot paper, the outcome in terms of the likely voter pattern would be ' unpredictable '. He submits that there is an infinite list of variables that are likely to affect the outcome of the election and that the result of the change of one of those variables would result ' in chaos ' which, he said, would flow from the change in just one variable before the election. 13 The Commission points out that this amounts to a case based on the contention that one variable can ' change anything and everything '. It submits that the statutory threshold necessary is that the election is likely to be affected . Accordingly, the facts relied on to invalidate the election or return under s 355(a) must be sufficient to establish, as a threshold, that the election is likely to be affected. An allegation of chaos that may affect the outcome is, it submits, insufficient. 14 In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little.