Mam, T.A.M. v. Delaney, I. & Anor [1994] FCA 767

Mam, T.A.M. v. Delaney, I. & Anor [1994] FCA 767

The scrutiny of votes must be conducted in accordance with the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), Schedule 3, interpreted according to s 23(b) of the Acts Interpretation Act 1901, such that where two or more candidates have equal lowest votes, all are to be excluded. The conduct of the electoral officer in resolving ties by drawing lots was unauthorised, resulting in the improper return of Ian Delaney, who was thus not duly elected. The proper course is to commence scrutiny afresh in line with the Act at the time of the election. If no candidate attains an absolute majority, the election fails under Rule 14 and a supplementary election must be held.

Parties
Petitioner: Tomasina Anna May Mam; First Respondent to the Petition: Ian Delaney; Second Respondent to the Petition: Australian Electoral Commission; Applicant on Notice of Motion: S. Watson
Jurisdiction
Australia
Judgment Date
21 October 1994
Procedural Posture
Election Petition / Judgment Following Hearing on Validity of Election and Procedural Application for Party Joinder
Outcome
Application for joinder dismissed; Delaney not duly elected; scrutiny to recommence in accordance with statutory interpretation; further directions issued on election process.
Legal Topics
Zone Election Under Aboriginal and Torres Strait Islander Commission Act 1989, Procedure for Exclusion of Tied Candidates, Authority of Electoral Officers, Joinder of Parties, Interpretation of Statutory and Subordinate Provisions
Election Law Statutory Interpretation Administrative Law Practice and Procedure Zone Election Under Aboriginal and Torres Strait Islander Commission Act 1989 Procedure for Exclusion of Tied Candidates Authority of Electoral Officers Joinder of Parties +1 more

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Parties

Tomasina Anna May Mam

Petitioner

Ian Delaney

First Respondent to the Petition

Australian Electoral Commission

Second Respondent to the Petition

S. Watson

Applicant on Notice of Motion

Procedural Posture

Election Petition / Judgment Following Hearing on Validity of Election and Procedural Application for Party Joinder

Legal Issues

  1. 1 Whether the election failed within the meaning of the Zone Election Rules
  2. 2 Whether the conduct of the electoral officer constituted an 'illegal practice' within the meaning of the Aboriginal and Torres Strait Islander Commission Act 1989
  3. 3 Whether Ian Delaney was duly elected or properly returned as representative

Ratio Decidendi

The scrutiny of votes must be conducted in accordance with the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), Schedule 3, interpreted according to s 23(b) of the Acts Interpretation Act 1901, such that where two or more candidates have equal lowest votes, all are to be excluded. The conduct of the electoral officer in resolving ties by drawing lots was unauthorised, resulting in the improper return of Ian Delaney, who was thus not duly elected. The proper course is to commence scrutiny afresh in line with the Act at the time of the election. If no candidate attains an absolute majority, the election fails under Rule 14 and a supplementary election must be held.

Court Disposition

Application for joinder dismissed; Delaney not duly elected; scrutiny to recommence in accordance with statutory interpretation; further directions issued on election process.

Orders

  • The application of Mr. S. Watson to be joined as a party to the proceedings is dismissed.
  • Declaration that Ian Delaney was not duly elected as the representative for the Queensland (Metropolitan) Zone.