Fittler v NSW Electoral Commission and anor [2007] NSWADT 136

Fittler v NSW Electoral Commission and anor [2007] NSWADT 136

The application was dismissed because the NSW Electoral Commission did not establish that the Local Government Act 1993 and Local Government (Elections) Regulation 1998 were mandatory and specific as to the format in which the prescribed ballot-paper form had to be rendered. The legislation prescribed the content or form of the ballot paper, but not the format such as paper, ink, Roman letters, or exclusion of Braille. There was therefore a discretion as to the manner in which the statutory directions could be carried out, and it was not shown to be necessary for the Commission to provide the ballot paper only in the format used in order to comply with another Act or regulation.

Jurisdiction
Australia
Judgment Date
20 June 2007
Procedural Posture
Discrimination Complaint Under the Anti Discrimination Act 1977 / Preliminary Hearing of the NSW Electoral Commission's Application to Dismiss Under S102 Relying on the S54 Exception
Outcome
NSW Electoral Commission's application under s102 dismissed; matter directed to proceed toward hearing.
Legal Topics
['disability Discrimination' 'blind Voter Access to Ballot Papers' 'statutory Exception for Conduct Necessary to Comply With Another Act or Regulation' 'form and Format of Ballot Papers' 'preliminary Dismissal Application']
['anti Discrimination Law' 'administrative Law' 'local Government Elections'] ['disability Discrimination' 'blind Voter Access to Ballot Papers' 'statutory Exception for Conduct Necessary to Comply With Another Act or Regulation' 'form and Format of Ballot Papers' 'preliminary Dismissal Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Discrimination Complaint Under the Anti Discrimination Act 1977 / Preliminary Hearing of the NSW Electoral Commission's Application to Dismiss Under S102 Relying on the S54 Exception

Legal Issues

  1. 1 ["Whether the Electoral Commission's alleged requirement that Mr Fittler vote on the form provided was conduct necessary to comply with another Act or regulation within s54 of the Anti-Discrimination Act 1977." 'Whether the Local Government Act 1993 and Local Government (Elections) Regulation 1998 were mandatory and specific as to the format in which a ballot paper had to be rendered to a voter.' 'Whether the Electoral Commission had a discretion as to the manner or format in which the prescribed ballot-paper form could be made available, including whether a Braille format was excluded.']

Ratio Decidendi

The application was dismissed because the NSW Electoral Commission did not establish that the Local Government Act 1993 and Local Government (Elections) Regulation 1998 were mandatory and specific as to the format in which the prescribed ballot-paper form had to be rendered. The legislation prescribed the content or form of the ballot paper, but not the format such as paper, ink, Roman letters, or exclusion of Braille. There was therefore a discretion as to the manner in which the statutory directions could be carried out, and it was not shown to be necessary for the Commission to provide the ballot paper only in the format used in order to comply with another Act or regulation.

Court Disposition

NSW Electoral Commission's application under s102 dismissed; matter directed to proceed toward hearing.

Orders

  • ['Application under s102 dismissed' 'Note directions made in preparation for the hearing on 15 August 2007.']