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February 2014

Although the Court of Disputed Returns has not yet formally declared that the WA half-Senate election was void, Justice Hayne’s judgment has made it clear that this is the necessary outcome. Below is a discussion of the facts, the case and the outcome.

The Background

On 7 September 2013, a half-Senate election was held in Western Australia (and other States) to fill six Senate seats that will become vacant on 1 July 2014. Three Liberals and one Labor candidate were elected to the fist four spots. The fifth and sixth spots were initially announced being won by Zhenya Wang (Palmer United Party) and Louise Pratt (ALP). The election was so close, however, that a re-count was requested and granted before any result was officially declared.

During the re-count, it was discovered that 1370 of the ballots had gone missing. Without these ballots, the result was different, with Wayne Dropulich (Australian Sports Party) and Scott Ludlam (Greens) declared as winning the fifth and sixth spots.

The Electoral Commissioner concluded that the result of the election could not be known and there was a real chance that the declared result would have been different if the missing ballots had been able to be included in the count. The Electoral Commissioner therefore petitioned the Court of Disputed Returns to declare that the half-Senate election in Western Australia was void and that a new election should be held.

The various political parties presented tortured arguments to the Court in an attempt to secure the outcome that best suited their candidates, being either that the earlier counts should be restored, or the re-count outcome should prevail. No one seemed to want a fresh election, except the Electoral Commission.

The facts

The facts in relation to the polling and scrutiny were as follows. When the election was held, a first count took place at polling places on the evening of the poll. A second count, known as the ‘fresh scrutiny’ was then held in each electoral division. It assessed the total number of first preference votes for each candidate and the number of informal votes. The above-the-line votes were recorded and entered into the computer system. Those votes, plus the informal votes, were then bundled up and sent to a warehouse for storage. The below-the-line votes, which are more complex, were all sent to the central office for manual entry into the computer system.

The Electoral Commission’s computer then conducted a number of ‘counts’ that allocate preferences. These involve the exclusion, at different stages, of the candidate with the lowest number of votes and the redistribution of his or her preferences to the next preferred candidate remaining in the count. The crucial point in the WA Senate election was on count 141 at the point of the exclusion of the 50th candidate. The two candidates at that stage with the lowest votes were Mr van Burgel (Australian Christians) and Mr Bow (Shooters and Fishers). If van Burgel had the higher number of votes, the rest of the preference distribution would have given a decisive victory to Dropulich and Ludlam. If Bow had the higher number, it would have given a decisive victory to Wang and Pratt.

According to the ‘fresh scrutiny’ Van Burgel was beaten by Bow by 14 votes, leading to the election of Wang and Pratt. However, when the re-count took place, two factors changed. First, due to the more experienced officials and scrutineers, the assessment of the formality of some of the votes changed. The total number of informal votes increased by 324. There were 3,913 ballots that were treated differently from the fresh scrutiny. Secondly, the missing votes, comprising 120 informal votes and 1250 above-the-line votes, were excluded from the count. The result was that van Burgel had 12 votes more than Bow. This meant that Dropulich and Ludlum were declared to have won the fifth and sixth Senate seats.

However, if the information known about the missing votes from the ‘fresh scrutiny’ was factored into the computer, along with the changes in the assessments of re-scrutinised votes and the resulting changes in preference distribution in the re-count, the result would have been that Bow would have had one more vote than van Burgel, causing Wang and Pratt to be elected.

Given that the reconstructed count turned upon one vote and that no one could guarantee that every single one of the 1370 missing votes had been accurately assessed as formal or informal and correctly recorded, no one could say with confidence whether that one vote margin would be sustained. If, for example, the votes cast for van Burgel and Bow were even, then on a back-count, van Burgel would have remained in the count, and Dropulich and Ludlam would have been elected.

The Law

The Court of Disputed Returns has very limited powers in relation to elections. Where an ‘illegal practice’ has occurred (including failure to comply with provisions of the Act), it can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected. It can also declare an election to be absolutely void. There are two conditions for doing so. The Court must be satisfied that it was likely that the outcome of the election was affected by the illegal practice and that it is just to make such a declaration.

In dealing with a challenge, the Court usually has the benefit of being able to assess the ballot papers. The problem in this case was that some of them were missing. The question then was whether the Court could consider the earlier counts, which had taken into account those ballots, in order to reconstruct an outcome.

The Commonwealth Electoral Act provides that if anyone was ‘prevented from voting’, the Court cannot admit evidence of their voting intentions. This was an important element of the case, because it affected what evidence the Court could rely upon in reaching its decision.

The Court of Disputed Returns

Section 354 of the Commonwealth Electoral Act provides that the High Court shall be the Court of Disputed Returns and shall have jurisdiction either to try a petition or refer it, or part of it, for trial to the Federal Court of Australia. Its jurisdiction may be exercised by a single judge.

Section 368 states that all decisions are final and cannot be appealed. While a previous challenge to the constitutional validity of this provision has failed in relation to the determination of a challenge by the Federal Court (Smith v AEC [2009] FCAFC 43), there is still the possibility that it could be challenged as unconstitutional in relation to appeals from a single Justice of the High Court to the Full Bench.

Given the political importance of this case, one might have expected the Full Bench of the High Court to have sat as the Court of Disputed Returns. Surprisingly, it provided only a single judge bench comprised by Justice Hayne. This had ramifications for the case, as a single judge is bound by decision of the Full Court and therefore has less flexibility in dealing with precedents.

The Court of Disputed Returns’ judgment

There was no difficulty for the Court in identifying an illegal practice. The loss of the ballot papers gave rise to a number of contraventions of the Act. This was accepted by all the parties. The issues were then whether the illegal practices were likely to have affected the outcome of the election and whether it was just to make an order declaring the election void, or declaring candidates duly elected or not duly elected.

Much of the argument in the case concerned whether voters had been prevented from voting, as this was critical to the admission of evidence upon which the Court could rely. The provision that prohibits the admission of evidence of voters who have been prevented from voting was really intended to prevent people from taking the witness stand and being asked in court how they had intended to vote, as this would undermine the secrecy of the ballot. In this case, however, that prohibition was also regarded as capturing evidence of voting intention from earlier counts, even though it did not violate the secrecy of the ballot and identify the voting intentions of particular voters.

Some parties argued that the act of voting is complete when the voter places the ballot in the box. Others said that a voter could be prevented from voting if his or her vote wasn’t counted. Justice Hayne considered at [79] that ‘to vote’ means ‘to express or signify a choice’, but that the phrase ‘prevented from voting’ ‘extends to taking account of the expression or signification of the choice.’ He held that people were prevented from voting because their votes were lost and not counted. In reaching this conclusion, he drew on ss 7 and 24 of the Constitution and their requirement that the Houses of Parliament be directly chosen by the people. This, he concluded at [81], requires that ‘the lawful expression of every voter’s choice is taken into account in determining who has been chosen’.

The consequence was that he could not go back to the evidence of the earlier counts to determine the intention of these voters. It was not possible to mix and match from the various election counts to come up with a composite result. The Act required that the election outcome be ascertained by scrutiny of the ballot paper and once a re-count was directed, it required that the scrutiny begin afresh. That scrutiny could not be completed because of the absence of some of the ballot papers. Justice Hayne noted at [111] that the Act did not permit the making of ‘patchwork’ results.

As to whether the election outcome was likely to have been affected by the loss of the ballot papers, Justice Hayne concluded at [11] that without admissible evidence of voting intentions in the lost ballot papers, ‘the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.’ This was because the critical margin of votes involved was 14, 12 or even just 1, depending upon which counts were used. Even though the evidence of earlier counts could not be admitted, Justice Hayne concluded that the margin was so small that it was ‘more probable than not that the loss of the ballot papers affected the result of the election which was declared.’

One of the parties made a rather ambitious argument that in the absence of evidence of voting intention, the Court had no evidence at all about likely outcomes and could therefore not find that any result was more likely than any other. It was therefore impossible to find that the result was likely to have been affected. This argument was summarily dismissed at [106].

Justice Hayne clearly stated at both [18] and [122] of his judgment that the Court must find that Mr Dropulich (Australian Sports Party) and Senator Ludlum (Greens) ‘were not duly elected’. He also stated that the Court ‘cannot declare who was duly elected.’ He concluded by stating that the ‘only relief appropriate is for the election to be declared void’.

The outcome

Despite making these findings on the questions of law, Justice Hayne did not actually declare the election void. Instead, he required the parties to come back before the Court for ‘argument about any remaining issue’ on Thursday, 20 February. This was probably a consequence of how the case was structured. Some of the parties had also asked the Court to review and determine the validity of certain challenged ballot papers. This would have involved taking evidence and making findings of facts. Justice Hayne was asked first to address certain legal questions. In addressing those questions, he found that there was no need to consider the validity of the reserved ballots. He then answered the legal questions asked of him. They did not deal with the making of orders to resolve the petition.

Hence, Justice Hayne decided to recall the parties on 20 February 2014. He will presumably then make any necessary orders to resolve the petition once the parties have been heard on the point. Given his findings on the legal questions, the only possible order would seem to be a declaration that the election was absolutely void.

The Act requires that in such a case a fresh election be held. It would then be a matter for the Commonwealth to nominate the polling date and the Governor of Western Australia to issue the writs for the half-Senate election. This is likely to happen in late April, after Easter, in order to ensure that a full Senate is available when it first sits after 1 July.

SUGGESTED CITATION: A Twomey, 'The case of the missing votes', Constitutional Critique, 19 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

[A shorter version of this post was published by The Conversation on 18 February.]

The following blog post has been contributed by CRU intern, STEPHEN SHARPE:

When the Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples proposed the insertion of an anti-racial discrimination provision in the Constitution, it had to struggle with the vexed problem of how to prohibit racial discrimination while still permitting measures intended to reverse or ameliorate the practical effects of past discrimination. Should it adopt the ‘special measures’ approach used in the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’), which was adopted by the Racial Discrimination Act 1975 (Cth) (‘RDA’), or should it use different terminology to fulfill its intention?

One of the difficulties is that we have had very little indication from the High Court of the meaning of ‘special measures’ and how far it extends in Australian law. Until recently, the only substantive authority on the issue was the High Court’s 1985 judgment in Gerhardy v Brown, and in particular the judgment of Brennan J. Given the recent controversies concerning the Northern Territory intervention and the use of alcohol restriction laws in Aboriginal communities, greater clarity upon what amounts to a ‘special measure’ has been desperately needed.

The position has now changed with the High Court handing down a recent judgment dealing with special measures – Maloney v The Queen [2013]. The High Court largely endorsed Brennan J’s four indicia of what amounts to a special measure, as set out in Gerhardy v Brown:

A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms. (1985) 159 CLR 70, 133.

The Court in Maloney revealed a strong deference to Parliament’s assessment that criminal sanctions may constitute ‘special measures’ under the RDA, providing governments with a wide capacity to implement and enforce restrictive alcohol laws in Indigenous communities. The judgment suggests that the Court will interpret the Parliament’s powers broadly under any prospective non-discrimination clauses included as a part of Aboriginal and Torres Strait Islander recognition within the Australian Constitution.

Maloney v The Queen

In Maloney, a majority of Justices found the regulations restricting the possession of alcohol in the Aboriginal community of Palm Island to be an infringement of either one or a number of rights protected by s 10 of the RDA, which operates to ensure equality before the law, by conferring rights upon those discriminated against in legislation. However, the Court unanimously held that the laws implementing the alcohol restrictions were valid special measures under s 8 of the RDA, and therefore exempt from being considered discriminatory. The necessity and relevance of consultation or consensus was found to be largely a matter of political judgment, to be determined by Parliament, outside the jurisdiction of the Court.

Although the judgments emphasized the role of the RDA in giving effect to Australia’s obligations under the ICERD, none of the Justices were willing to accept the current international consensus of the United Nations ICERD Committee as having any bearing on the classification of laws as special measures. The Court found that the prior informed consent or consultation of an affected community, a requirement adopted by the ICERD Committee, was unnecessary for a law to be a special measure. While the majority referred to Brennan J’s remark in Gerhardy, that the wishes of the beneficiaries of special measures ‘are of great importance (perhaps essential)’, the Justices considered this not to be an essential feature in determining a special measure’s legitimacy. The effect is to vest greater power and discretion in the Parliament and the Government through the making of regulations that affect Aboriginal and Torres Strait Islander peoples.

The Court also largely deferred to Parliament in determining whether a special measure was for an affected community’s benefit and of ongoing necessity. The judiciary’s role was essentially defined as determining whether it was reasonably open for a legislative finding that a special measure was required, and that such a measure’s sole purpose was the adequate advancement of the affected community. Various standards of proportionality, reasonable necessity, and what is reasonably appropriate and adapted, were found to be in some way applicable to the legislation. However, the Court’s emphasis was on the initial legislative finding, supported primarily by the Cape York Justice Study, that some action was required to ensure the equal enjoyment of human rights and fundamental freedoms on Palm Island through the restriction of alcohol possession. This emphasis leaves little room for domestic challenges to restrictive criminal measures that have purportedly been enacted for the advancement of a racial group made under the RDA. The refusal to build upon the obiter of Brennan J and strengthen the community consultation requirement developed by international law, suggests a Court and a country out of step with contemporary notions of discrimination, and further emphasizes the need for both the constitutional recognition of Indigenous Australians and the review of the RDA.

Maloney and Stronger Futures

The Maloney decision’s inconsistency with international law was highlighted by the compatibility review undertaken by the Parliamentary Joint Committee on Human Rights. The Committee agreed with the UN Special Rapporteur on Indigenous Peoples that a measure criminalizing the conduct of members of the community for the benefit of the community as a whole should not be considered a special measure. This line of argument was led by the appellant in Maloney, but received little attention in the judgments. This again demonstrates the broad purview given by the High Court to Parliament under s 8 special measures.

The Committee suggested that the RDA be reviewed so that infringements of s 10, occasioned by laws like those in Maloney, do not have to be justified as special measures under s 8. The Committee suggested that such actions should be considered under a broader justification in international law of a reasonable and proportionate measure in pursuit of a legitimate goal. Whether or not this broader exception would place a greater emphasis on consultation with the affected community, or allow for equally restrictive laws as those held valid by Maloney, is yet to be tested. However, the use of proportionality, and the legal history it imports, may assist in refining an approach to such legislation. The High Court’s willingness to stretch, in terms of current international law, the domestic understanding of special measures in Maloney to encompass all forms of discriminatory laws for the benefit of a racial group, emphasizes the need for reform of racial discrimination law.

Non-Discrimination as a part of Constitutional Recognition

Section 116A, proposed by the Expert Panel on Indigenous Constitutional Recognition and designed to enshrine non-discrimination in the Constitution, avoids the language of special measures and opts for excepting ‘laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.’ The suggested provision accommodates a broader range of exceptions than the RDA and draws upon similar international constitutional and bill of rights provisions, such as those in New Zealand and Canada, in emphasizing the historic disadvantage of the relevant racial group. Significantly, the ‘sole purpose’ requirement of s 8 special measures is absent, preserving the operation of laws with multiple purposes and aims.

The Panel’s recommended s 51A, gives the Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples, and contains an acknowledgement of ‘the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’ in its preamble. Such wording accommodates the language of s 8 special measures by making it potentially relevant to the interpretation of the proposed power’s scope, but avoids adopting it as substantive law by placing it in the preamble. The associated jurisprudence concerning the need for such laws to be for the benefit of a community may therefore be drawn upon, if the High Court chooses to use the preamble in this way, without being imposed as a legal requirement.

Like the Report of the Human Rights Committee discussed above, the Expert Panel’s Report suggests a wariness of special measures that criminalize community conduct or erode principles of self-determination. The Maloney case, however, shows that the current High Court is prepared to defer to the judgment of the Parliament in upholding as special measures restrictive alcohol laws, such as those in place on Palm Island, which criminalize the conduct of a racial group in the pursuit of substantive equality, with or without the consultation of the affected community. Those reviewing the Expert Panel’s recommendations should now take into account the High Court’s Maloney decision in assessing how the notion of special measures should be dealt with in any anti-discrimination measure to be inserted in the Constitution and whether deference to Parliament should be replaced by judicial assessments of proportionality to legitimate ends.


SUGGESTED CITATION: Stephen Sharpe, 'Finding the balance between special measures and the prohibition of discrimination', Constitutional Critique, 9 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).