Kelly v Australian Electoral Office [2001] FCA 1557

FEDERAL COURT OF AUSTRALIA Kelly v Australian Electoral Office [2001] FCA 1557 EDWARD KELLY v AUSTRALIAN ELECTORAL OFFICE N 1480 OF 2001 EMMETT J 5 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001

BETWEEN: EDWARD KELLY

APPLICANT

AND: AUSTRALIAN ELECTORAL OFFICE

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 5 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application for an expedited hearing be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001

BETWEEN: EDWARD KELLY

APPLICANT

AND: AUSTRALIAN ELECTORAL OFFICE

RESPONDENT

JUDGE: EMMETT J

DATE: 5 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 31 October 2001 the Chief Justice of the High Court remitted proceeding number S250 of 2001 to this Court. In that proceedings the plaintiff sought an order of mandamus against the Australian Electoral Commission ("the Commission") requiring acceptance and declaration of his nomination, and prohibition of the holding of "the New South Wales Senate election" until implementation of the order of mandamus. He also sought an injunction restraining the Commission from holding the election of senators "to the New South Wales Senate" until the final determination of the matters raised in the proceeding. In addition he sought a declaration that s 169A(3) of the Commonwealth Electoral Act 1918 ("the Act") is invalid. That section deals with the form of the ballot paper for a Senate election. It provides that a candidate may not make a request to be described as independent, as well as making a joint request with another candidate that their names be grouped in the ballot paper. 2 At a directions hearing today, the plaintiff has indicated that he no longer presses for mandamus. He seeks to file an amended statement of claim in which the relief sought is: · an injunction restraining the Commission from the conduct of the ballot for the Senate election for New South Wales until final determination of the matter; · a declaration that his nomination substantially complied with the Commonwealth Electoral Act; · a declaration that the writ for the Senate of New South Wales was issued unconstitutionally and is a nullity; · orders striking out ss 169(4) and 169A(3) of the Act as unconstitutional; and · exemplary damages and costs. 3 When the matter came before me earlier this afternoon, the plaintiff initially indicated that he wished to seek interlocutory relief. That application was then abandoned and the plaintiff sought that the matter be expedited to the extent of a final hearing prior to Saturday 10 November, when the election is to be held. That application is opposed by the Commission on the basis that there is no need for an expedited hearing of the issues that are raised by the proceeding. The Commission contends that there is no jurisdiction in this Court to restrain the holding of the election on the ground that there is some invalidity involved in the election, such as the wrongful rejection by the Commission or its officers of the applicant's nomination. 4 Section 353(1) of the Act provides that "[t]he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise". Under s 354(1) the High Court of Australia is to be the Court of Disputed Returns and is to have jurisdiction either to try a petition or refer it for trial to the Federal Court of Australia. 5 In my view, the effect of those provisions is to provide that the only method whereby the validity of the Senate election to be held on 10 November 2001 can be disputed or called in question is by means of a petition to the High Court after the election. Even if this proceeding were expedited to the extent of a final hearing before Saturday, no order could be made restraining the holding of the election on the ground that the election would be invalid. I cannot perceive any other basis upon which the Court would intervene in the holding of the election. 6 The proposed amended statement of claim raises other questions as to the constitutionality and validity of the election. The same arguments seem to me to be applicable to the contention that the writ issued for the Senate election for New South Wales is defective. The plaintiff's claim is that the Governor of New South Wales is not constitutionally appointed. The plaintiff claims that no Governor of New South Wales has been validly appointed since the Parliament of Westminster passed the British Nationality Act 1948. If that argument be correct, the validity of the election would be called into question by means otherwise than that prescribed by Part XXII of the Commonwealth Electoral Act. 7 No argument has been advanced as to why any claim for damages should be expedited. In my view there is no reason why any claim for damages should be expedited. In the circumstances, I am not prepared to accede to the request for an expedited hearing of this proceeding. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 7 November 2001 Counsel for the Plaintiff: The plaintiff appeared in person

Counsel for the Respondent: Mr S Gageler with Ms R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 November 2001

Date of Judgment: 5 November 2001