Smith, Robert Arthur v Alison Byrne (New South Wales Electoral Commission) [2017] NSWCCA 35

Smith, Robert Arthur v Alison Byrne (New South Wales Electoral Commission) [2017] NSWCCA 35

The 'office or position under the Parliamentary Electorates and Elections Act 1912' referred to in s 41(9) of the Election Funding, Expenditure and Disclosures Act 1981 only applies to positions whose appointment is prescribed by statute (such as commissioners, Electoral Commissioner, etc.), and not to party positions like secretary or registered officer; therefore, the applicant was not rendered ineligible to be party agent by being secretary and was liable for the lodgment obligation as registered officer.

Parties
Applicant: Robert Arthur Smith; Respondent: New South Wales Electoral Commission
Jurisdiction
Australia
Judgment Date
03 April 2017
Procedural Posture
Criminal Stated Case / Determination of Stated Case on Questions of Law Referred From District Court Under S 5 B of the Criminal Appeal Act 1912 (nsw)
Outcome
Orders made against applicant; costs awarded to respondent; questions of law answered against applicant.
Legal Topics
Failure to Lodge Declaration, Party Agent Eligibility, Interpretation of Statutory Appointment, Costs in Criminal Stated Case
Criminal Law Electoral Law Failure to Lodge Declaration Party Agent Eligibility Interpretation of Statutory Appointment Costs in Criminal Stated Case

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Parties

Robert Arthur Smith

Applicant

New South Wales Electoral Commission

Respondent

Procedural Posture

Criminal Stated Case / Determination of Stated Case on Questions of Law Referred From District Court Under S 5 B of the Criminal Appeal Act 1912 (nsw)

Legal Issues

  1. 1 Whether the secretary of a registered political party is a 'person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912' within the meaning of s 41(9) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW)
  2. 2 Whether s 41(9) of the Election Funding, Expenditure and Disclosures Act 1981 prevents a secretary who is also the registered officer from being party agent by force of s 41(2)

Ratio Decidendi

The 'office or position under the Parliamentary Electorates and Elections Act 1912' referred to in s 41(9) of the Election Funding, Expenditure and Disclosures Act 1981 only applies to positions whose appointment is prescribed by statute (such as commissioners, Electoral Commissioner, etc.), and not to party positions like secretary or registered officer; therefore, the applicant was not rendered ineligible to be party agent by being secretary and was liable for the lodgment obligation as registered officer.

Court Disposition

Orders made against applicant; costs awarded to respondent; questions of law answered against applicant.

Orders

  • Time for submitting the stated case under s 5B(2) of the Criminal Appeal Act 1912 (NSW) extended to 26 August 2016.
  • Stated case returned to District Court with the Court's reasons and answers to the questions of law: 3A No; 3B Does not arise.