Snowdon v Dondas [1996] HCA 27; (1996) 188 CLR 48; (1996) 139 ALR 475; (1996) 70 ALJR 908 (10 October 1996)
SITTING AS THE COURT OF DISPUTED RETURNS
BRENNAN CJ,
DAWSON, TOOHEY, GAUDRON AND GUMMOW JJ
WARREN SNOWDON PETITIONER
AND
NICHOLAS MANUEL DONDAS & ANOR RESPONDENTS
ORDER
1. Answer the question reserved as follows :
(1) No.
(2) Does not fall to be answered.
2. The petitioner pay the respondents' costs of the question reserved.
10 October 1996
Solicitors for the Petitioner: McClellands
Solicitors for the First Respondent: James Noonan
Solicitor for the Second Respondent: Australian Government
Solicitor
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Warren Snowdon v Nicholas Manuel Dondas & Anor
Elections - House of Representatives - Division of the Northern Territory - Electoral Districts - Exclusion of provisional votes from scrutiny - Electoral Rolls - Enrolment as a qualification to vote - Voters must be enrolled on the Roll of the District in which they live.
Commonwealth Electoral Act 1918 (Cth), ss 4(1), 4(5), 48(2A), 56, 79, 81, 82, 84, 92(2), 93, 99, 101, 105, 114, 118, 235, 266(1), 285(1), 361(1), Sched 3.
Constitution ss 41, 75(v), 122.
BRENNAN CJ, DAWSON, TOOHEY, GAUDRON AND GUMMOW JJ.
The background
On 29 January 1996 writs were issued for the election of 148 members of the House of Representatives.
One of the writs provided for the election of a member for the Division of the Northern Territory. In accordance with the writ, the electoral roll was to close on 5 February, nominations were to close on 9 February, the election was to take place on 2 March and the writ was made returnable on or before 8 May.
The petitioner, Mr Snowdon, and the first respondent, Mr Dondas, were two of the five candidates for election in the Division. The election was held and, after the distribution of preferences, Mr Dondas had an absolute majority of 627 votes over Mr Snowdon. Accordingly, Mr Dondas was declared the duly elected member of the House of Representatives for the Division of the Northern Territory.
On 8 May 1996 Mr Snowdon filed in the High Court, sitting as the Court of Disputed Returns, a petition claiming that a number of provisional votes were improperly excluded from the scrutiny of votes in the Division and seeking a declaration that Mr Dondas was not duly elected. The petition further seeks a declaration that the candidate with the greatest number of votes, following the inclusion of the votes said to have been improperly excluded, be declared the successful candidate.
The matter comes before the Full Court in the form of a question reserved for its consideration. The question is:
" Having regard to the facts and matters stated in the Case Stated[1], in particular paragraphs 43, 44, 45 and 47 -
(1) Where, at the time of the election, the name of an elector who cast one of the 1594 provisional votes referred to in paragraph 45:
(a) was not on a Roll for a District of the Division where the elector resides; and
(b) had previously been on a Roll for a District of the Division where the elector no longer resides -
was the DRO[2] bound to have been satisfied that the elector was entitled to be enrolled for the Division of the Northern Territory and the omission of the elector's name from the Roll referred to in paragraph (a) or the Roll referred to in paragraph (b) was due to an error made by an officer or to a mistake of fact within the meaning of those terms in paragraph 12 of Schedule 3 of the Act?
(2) If yes to question (1), were the 1594 provisional votes referred to in paragraph 45 wrongly excluded from the scrutiny?"
The Commonwealth Electoral Act
The relevant facts are agreed by the parties. It will be necessary to say something about them, but first it is appropriate to consider various provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act"), the legislation applicable to the election in question. This is not a straightforward task since the Act contains an array of sections, the relationship between some of which is not always beyond argument. In particular, the Act deals with elections in the Northern Territory differently from those in the States in an important respect. This will become clear as these reasons progress.
(1) Electoral Districts
Under the Act, each State and the Australian Capital Territory is distributed into Electoral Divisions[3]. Until a determination is made under s 48(2A) (an event which has not happened), any distribution or redistribution of the Northern Territory into electoral divisions must include the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island in the same Division[4]. The term "Division" is defined by s 4(1) to mean "an Electoral Division for the election of a member of the House of Representatives".
Part V of the Act is concerned with Subdivisions and Polling Places. Section 79(1)(a), within Pt V, empowers the Australian Electoral Commission ("the Electoral Commission") to divide a Division into such Subdivisions as are specified. But, in the case of the Northern Territory, the power is to
" (b) divide the Northern Territory into such Districts as are specified and set out the boundaries of each District so specified".
The term "Districts", which is peculiar to the Northern Territory, is not defined in direct terms. It is to be understood in the light of s 4(5) which reads:
"In this Act, unless the contrary intention appears:
(a) a reference to a Division shall be read as including a reference to the Northern Territory; and
(b) a reference to a Subdivision shall be read as including a reference to a District of that Territory specified in a notice published under subsection 79(1)."
By notice published in the Commonwealth of Australia Gazette on 31 December 1993, the Electoral Commission divided the Northern Territory into 25 specified Districts. By force of s 79(2), Cocos (Keeling) Islands and Christmas Island are each one District of the Division of the Northern Territory. They do not fall within the scope of par (b) of s 4(5). Whether the express provision in s 79(2) for two Districts creates problems for the Subdivisional Rolls referred to in s 82(3) is something which it is unnecessary to explore. It is not critical to answering the question before the Court. Section 79(2) may be left out of further consideration.
(2) Electoral Rolls
Since 31 December 1993 the boundaries of the 25 Districts of the Northern Territory have been the same as the boundaries of the 25 divisions for the election of members of the Northern Territory Legislative Assembly. Under what is termed the "Joint Roll Arrangement" between the Commonwealth and the Northern Territory, the Commonwealth Electoral Rolls are used for the election of members of the Legislative Assembly[5].
Section 81 of the Act requires that there be a Roll of the electors for each State and Territory. "Elector" means "any person whose name appears on a Roll as an elector"[6]. Section 82(2), read with s 4(5), requires that there be a separate Roll for each District of the Northern Territory. Those Rolls together constitute the Roll of electors for the Northern Territory[7]. Each District Roll complies with s 83(1) by being in the prescribed form and setting out "the surname, Christian or given names and place of living of each elector and such further particulars as are prescribed".
Any person qualified for enrolment, who lives in a District, and has so lived for one month last past, is entitled to have his or her name placed on the Roll for that District[8]. An elector whose name is on the Roll for a District and who lives in any other District, and has so lived for one month last past, is entitled to have his or her name transferred to the Roll for the District in which the person lives[9]. A person is not entitled to have his or her name placed on the Roll for more than one District or for a District other than the District in which the person lives, or in respect of an address other than the address at which the person is living when his or her claim to enrolment is lodged[10]. Every person who is entitled to have his or her name placed on the Roll for any District, whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll within 21 days from the date upon which the person became so entitled, commits an offence unless he or she proves that non-enrolment is not a consequence of failure to complete and send or deliver a claim[11]. Where a person enrolled for a District changes his or her place of living from one address in that District to another address in the same District, the person must, within 21 days of making the change, give notice of the new address to the DRO for the Division. Failure to comply constitutes an offence[12].
(3) Review and alteration of Electoral Rolls
The Electoral Commission is enjoined to conduct reviews of the Rolls, "with a view to ascertaining such information as is required for the preparation, maintenance and revision of the Rolls"[13]. Section 105, which is within Pt VIII - Enrolment, empowers a DRO to alter any Roll kept by the officer by, among other things: correcting any mistake or omission in the particulars of the enrolment of an elector; removing the name of a deceased elector; or by reinstating any name removed by mistake as the name of a deceased elector. Section 105(1)(f) empowers a DRO, "where the officer is satisfied that an objection against the enrolment of an elector whose name has been deleted from the Roll as a result of the objection was based on a mistake of fact" and is satisfied that the person retains the right to enrolment, to reinstate on the Roll the name of the elector. The DRO can also alter a Roll by reinstating any other name removed by mistake[14].
The objection to which s 105(1)(f) refers is dealt with in Pt IX - Objections. A person enrolled for a District may object to the enrolment of another person for that District on the ground that the other person is not entitled to be enrolled for that District[15]. The DRO for a Division must object to the enrolment of a person for a District of a Division if there are reasonable grounds for believing that the person is not entitled to be enrolled for that District[16]. Sections 115 to 118 set out machinery whereby such an objection is to be made and determined. If it appears to the DRO that the challenged elector is not entitled to be enrolled for the relevant District, the DRO must remove the elector's name from the Roll for that District[17].
In relation to the present matter, and in exercise of his powers under Pt IX, the DRO removed the names of electors from one or the other of the Rolls for the Districts which form part of the Roll for the Division of the Northern Territory. This took place between 24 March 1990 and 29 January 1996. No names were removed between the issue of the writ at 6 pm on 29 January 1996 and the close of polling on election day at 6 pm on 2 March 1996. Later in these reasons, reference is made to 3,285 persons who signed a certificate or declaration to support their entitlement to vote. Of those persons, approximately 2,088 had had their names removed from the Roll for the Division of the Northern Territory in accordance with Pt IX of the Act. Most of those names were removed in 1995.
(4) Scrutiny
After the close of the poll for a Division, the DRO must conduct such preliminary scrutinies as he or she considers necessary[18]. A preliminary scrutiny must be conducted according to the rules set out in Sched 3 to the Act[19]. Those rules came into play in the following circumstances.
Events preceding petition
On 2 March 1996, among those who attended at a polling place in the Division of the Northern Territory for the purpose of voting and who claimed to be enrolled for the Division, were persons
(a) whose names could not be found on the certified list of voters for the Division; or
(b) whose names but not their addresses appeared on the list; or
(c) for whom a mark on the list indicated that they had already voted at the polling place[20].
In accordance with s 235(2), each of those persons was invited to sign a declaration in the approved form on an envelope addressed to the DRO. Each person who did so was entitled to cast a provisional vote. Section 235 sets out the steps whereby, in short, the person making a provisional vote signs a declaration, is handed a ballot-paper and thereafter hands it to the polling official who places the envelope in the ballot-box.
On the day of the election, a total of 3,786 provisional votes was cast at polling places in the Division in accordance with s 235. A total of 2,991 postal votes was received by the DRO; the names of 162 of these voters could not be found on the list for the Division during the scrutiny. A total of 7,029 pre-poll votes was cast; the names of 855 of these voters could not be found on the list during the scrutiny. It is unnecessary to detail the steps by which the ballot-boxes, containing the declarations by the voters who had cast provisional votes, found their way to the DRO. When they did, however, he was required to take the steps set out in Sched 3. Those steps required the DRO to divide the envelopes containing the declaration votes[21], to which the preliminary scrutiny related, into two groups. The first group comprised the envelopes which met the requirements of par 6 of Sched 3. Relevantly, this meant that each envelope contained a ballot-paper certified by the issuing officer pursuant to s 200E of the Act, together with a certificate signed by the elector and witnessed by the issuing officer. The second group comprised those envelopes which did not meet the requirements of par 6.
There were 4,769 envelopes in the first group and 34 in the second. None of the envelopes in the second group had been signed by the person who had purported to cast his or her declaration vote. Of the 4,769 voters who had signed a certificate or declaration on envelopes in the first group, the DRO later identified 413 as enrolled for the Division.
At this point, reference must be made to par 12 of Sched 3 which is expressed to apply to an envelope if the DRO is satisfied:
" (a) that the elector who signed a certificate or declaration on the envelope is not enrolled for the Division; and
(b) after making enquiry:
(i) that the elector was, at the time of voting, entitled to be enrolled for the Division; and
(ii) that the omission of the elector's name from the Roll for the Division was due to an error made by an officer or to a mistake of fact".
Paragraph 12, taken alone, contains no empowering provision; it simply identifies a particular situation. However, par 10(b) requires that, in the case of a preliminary scrutiny, envelopes to which par 12 apply shall form one group[22]. Paragraph 18 of Sched 3 requires ballot-papers withdrawn from envelopes referred to in par 10(a) or (b) to be "placed in a ballot-box by themselves for further scrutiny".
The Case Stated recites that, after making appropriate enquiry as contemplated by par 12, the DRO was satisfied that, although they were not enrolled for the Division, 1,071 electors who had signed a certificate or declaration in the first group were entitled to be enrolled for the Division and that the name of each of those persons had been omitted from the Roll "due to an error made by an officer or to a mistake of fact"[23]. These 1,071 envelopes were placed in a separate group.
After these various steps had been taken, 3,285 envelopes remained. These were treated by the DRO as falling within par 10(d) of Sched 3, being "envelopes bearing certificates or declarations by persons who are not enrolled for the Division or for the ... Territory in which the Division is situated". After the return of the writ, 31 of these 3,285 persons were found to be on the Roll for the Division. None of those votes was admitted to the count. Those votes, of themselves, could not have affected the result of the election, given the votes received by Mr Snowdon and Mr Dondas after the distribution of preferences.
Of the 3,285 persons mentioned earlier, 2,587 declared that they had a current address within the Division. The remaining 698 persons had each declared an address within the Division but the DRO found that each had a current address or an address as last appearing on the Roll which was outside the Division.
The basis of the petition
We are now at the heart of the matter. In the course of the enquiry which the DRO conducted and which led to the application of par 12(b) of Sched 3 mentioned earlier, the DRO compared the address given by each person who had signed a certificate or declaration on envelopes in the first group ("the declaration address") with the address, if any, last recorded for that person on the Roll for the Division ("the Roll address"). If the declaration address and the Roll address of the elector were within the same District of the Division, the DRO was satisfied that the name of the elector had been omitted from the Roll for the Division due to an error or mistake within par 12(b)(ii). But if the declaration address and the Roll address of an elector in the first group were in different Districts of the Division, the DRO was not so satisfied. Of the 2,587 envelopes mentioned earlier, 1,594 were placed in the group identified in par 10(d) of Sched 3, that is, "envelopes bearing certificates or declarations by persons who are not enrolled for the Division". It is those 1,594 votes with which this petition is primarily concerned.
The Case Stated further recites that in
"all Divisions for the election of Members of the House of Representatives, other than for the Division of Kalgoorlie[24] and the Division of the Northern Territory, the DRO would have been satisfied that the name of an elector had been omitted from the Roll for the Division due to an error made by an officer or to a mistake of fact if the declaration address and the last current or enrolled address of the elector was within the Division in which he or she claimed to vote".
The question asked of the Court is directed at such of the persons who cast the 1,594 provisional votes and who satisfied the two criteria specified in the question, namely, that they were not on a Roll for a District of the Division where they resided and had previously been on a Roll for a District of the Division where they no longer resided.
The arguments
Mr Snowdon's complaint is that an elector who moves from one District to another within the Northern Territory without transferring to another Roll should not thereby be disenfranchised and that this would not happen anywhere but in the Northern Territory (or Kalgoorlie). The complaint is understandable but the issue presented to the Court is a legal one, to be answered in terms of the Act. Accepting this, Mr Snowdon says that on the proper construction of the Act there is but one Roll for the Northern Territory and that there was a mistake of fact on the part of the DRO in not having on that Roll the 1,594 persons who, at the time they cast provisional votes, were residents of the Northern Territory.
Mr Snowdon faces the hurdle presented by s 4(5) of the Act. The sub-section is set out earlier in these reasons. Subject to the contrary intention appearing, a reference to "Division" in the Act includes, relevantly, a reference to the Northern Territory. And, relevantly, a reference to "Subdivision" includes a District of the Territory.
Mr Dondas submits that no contrary intention appears, that s 82(2), read with s 4(5), requires that there be a separate Roll for each District and that a person cannot be on the Roll for the Northern Territory without first being on the Roll for a District of the Northern Territory. He further submits that, when regard is had to Pt VII - Qualifications and Disqualifications for Enrolment and for Voting, and in particular s 93, the words "entitled to be enrolled" in par 12 of Sched 3 refer to a person who has attained the age of 18; is an Australian citizen[25]; lives in a District of the Northern Territory and has so lived for one month past; and has lodged a claim for enrolment or transfer of enrolment, provided that (and this is the crux of the respondents' case) the person has lodged such a claim for one District, being the District where he or she lives, and for the address at which the person is living when the claim for enrolment is lodged.
Mr Dondas takes a further step. He contends that the persons who lodged the 1,594 votes gave current addresses on the declaration forms for their provisional votes under s 235; that these addresses were different from the addresses which previously appeared beside their names when they were last on the Roll; that each person changed his or her address in the Northern Territory without transferring his or her enrolment; and that, in those circumstances, the DRO could not be satisfied that the person was entitled to be enrolled for the District of the new address because the person had not lodged a claim to transfer his or her enrolment to the new address. Furthermore, it was said, there could be no question that the omission of the name of each person from the Roll for the Division was due to an error made by an officer or to a mistake of fact. Those persons were not on the Roll of the District where they previously resided because their names had been removed from each such Roll. And they were not on the Roll of the District in which they resided because they had not applied to be enrolled in that District.
Counsel for Mr Snowdon sought to meet the apparent operation of the Act in two ways. The first was by invoking principles relating to the right to vote as a fundamental right which should not be cut down by the operation of anything other than a uniform franchise. The other was by focusing on the words "unless the contrary intention appears" in s 4(5) and contending that a contrary intention did appear from other sections of the Act.
On the first point counsel argued that the 1,594 electors who cast provisional votes have been disenfranchised for what was described as "non-Commonwealth purposes". The importance of maintaining unimpaired the exercise of the franchise hardly need be stated. And as Isaacs J said in Kean v Kerby26: "The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it." At another point in his judgment Isaacs J said[27]: "I think I should ... resolve a doubt as to form in favour of the substantial right to vote". Counsel pointed to a passage in the judgment of Brennan, Deane and Dawson JJ in The Queen v Pearson; Ex parte Sipka in which it was said[28]: "It was anticipated that, at some time after Federation, the Parliament would enact a uniform qualification of electors of members of the Parliament."
It is important to state that there was no attack by Mr Snowdon on the validity of any provision of the Act. There was a recognition that the power of the Parliament to deal with the Northern Territory differently from the States arose from s 122 of the Constitution and that the Constitution did not demand that the voting provisions, so far as the Territory was concerned, be uniform. Rather, the submission was that, in the construction of the Act, the importance of a uniform franchise should be kept firmly in mind.
Authority makes it clear that the Parliament is empowered to determine, not only the extent of representation of the Northern Territory in the Parliament, but also the terms of representation including matters germane to the franchise, enrolment and the adoption of District boundaries for the purposes of enrolment on the Roll for the Division of the Northern Territory. In this respect, it is enough to mention Western Australia v The Commonwealth[29] and Queensland v The Commonwealth[30].
The protection of a right to vote contained in s 41 of the Constitution does not avail Mr Snowdon. To begin with, it relates only to the right to vote in a State. Furthermore, the provision does not prescribe a qualification to vote. It assumes the existence of a right and ensures that the right is not taken away[31]. In any event the practical effect of s 41 is now spent[32].
The position is as described by Brennan ACJ in Muldowney v Australian Electoral Commission33:
"[A] right to vote in an election for the Senate or the House of Representatives now depends entirely on the Act[34]. That being so, the qualifications to vote must be found in the Act. By force of s 93(2), the qualifications include enrolment on a Roll for an Electoral Division. Indeed, the term 'elector' is defined by s 4(1) to mean 'any person whose name appears on a Roll as an elector'. The only right to vote conferred by the Act is that conferred by s 93(2) and that right depends on the elector's name being on the Roll for a Division."
As Brennan ACJ goes on to point out, there is no undue hardship or anomaly created by insisting on enrolment as a qualification to vote. Part X of the Act provides an administrative review by the Australian Electoral Officer and in turn by the Administrative Appeals Tribunal if a person's name is wrongly removed or omitted from a Roll[35]. And s 75(v) of the Constitution ensures that a decision to remove or omit a name from a Roll is amenable to judicial review.
There can be no quarrel with the approach to the Act for which Mr Snowdon contended if there be doubt or ambiguity in the language of the Act. But if there be none, the approach does not avail him. Likewise, if the contrary intention to which s 4(5) refers can be demonstrated, effect must be given to that contrary intention. But if it cannot be demonstrated, the plain language of sub-s (5) must take its course. In that regard the question is one of the relationship between various provisions of the Act.
It is helpful to look again at the relevant provisions to see whether they betray any doubt or ambiguity. A convenient starting point is s 79 which contemplates that, in the case of the Northern Territory, there will be Districts, not Subdivisions. Perhaps "contemplates" is too bland a term when regard is had to s 79(2) which provides that Cocos (Keeling) Islands and Christmas Island "shall be" each one District of the Division of the Territory.
Part VII - Qualifications and Disqualifications for Enrolment and for Voting is clearly structured on the footing that enrolment is a necessary step to voting. It contains the provisions which spell out entitlement to enrolment and accordingly entitlement to vote. For there to be enrolment, there must be a Roll; s 81 (which is in Pt VI) requires that there be a Roll of the electors for each State and each Territory. It follows, in the submission of the Electoral Commission, that there must be a Roll for the Division of the Northern Territory. And, the submission continues, there can only be such a Roll if s 82 is construed by reference to s 4(5), as s 82 does not contain the word "District". It is s 4(5) that requires "Division" in s 82(1) to be read as including a reference to the Northern Territory and requires "Subdivision" in s 82(2) and (3) to be read as including a reference to a District specified in a notice under s 79(1).
Regard must then be had to s 99 which deals with claims for enrolment or transfer of enrolment. That section, also, does not use the word "District". And, unless the section is to be ignored in the case of the Northern Territory (and there is no justification for that approach), s 4(5) requires that "District" be substituted for "Subdivision". The result is that any person qualified for enrolment[36], who lives in a District and has so lived for a period of one month last past, is entitled to have his or her name placed on the Roll for that District[37]. And, with certain exceptions with which we are not concerned, a person is not entitled to have his or her name placed on the Roll for a Subdivision other than the Subdivision in which the person lives[38]. As the Electoral Commission submission points out, s 229, which deals with the questions to be put to a voter, and s 235, which deals with provisional votes, reflect the fact that a criterion of voting is enrolment and that, in the case of the Northern Territory, this means enrolment upon a District Roll[39] and hence upon the Divisional Roll[40].
Mr Snowdon's complaint, as already mentioned, is that the 1,594 persons who cast provisional votes were disenfranchised. The response of Mr Dondas and the Electoral Commission is that they were not disenfranchised. They were not qualified electors who were denied the vote. They were not qualified to vote because their names did not appear on the Roll for the Division, that is, they did not appear on the District Rolls that made up the Roll for the Division that were applicable to those persons.
In the light of those observations, the issue narrows to whether the language of the Act, read in the light of s 4(5), yields to a contrary intention.
At the risk of some repetition, s 82(1) and (2), read with s 4(5), require that there be a Roll for the Division of the Northern Territory and separate Rolls for each District. The District Rolls together form the Divisional Roll. To qualify for enrolment on a District Roll, a person must live in the relevant District. An elector who moves from one District to another is entitled to transfer his or her enrolment but is not entitled to have his or her name placed on the Roll for a District other than the District in which the person lives.
Where then is a contrary intention to be found in terms of s 4(5)? The difficulty facing Mr Snowdon in this regard is that the Act provides for the division of the Northern Territory into Districts and requires that those Districts will have their own Rolls, with the consequence that those Rolls will be the foundation upon which the right to vote is constructed. There can be no right to vote without enrolment and enrolment depends upon being on the Roll of the District in which the person lives.
The contrary intention must be found in the Act, not in extrinsic circumstances; that is clear enough[41]. Power to divide the Northern Territory into Districts was conferred by s 10(1) of the Commonwealth Electoral Legislation Amendment Act 1983 (Cth). The Joint Roll Arrangement was made pursuant to s 84(1) of the Act. It exists as a matter of convenience; its existence cannot distort the otherwise clear meaning and operation of the Act. Indeed, counsel for Mr Snowdon argued that the notion of districts was relevant to Northern Territory elections rather than federal elections. The argument came close to asserting a misuse of the power conferred by s 79(1) of the Act. But there is nothing before the Court to support such a contention. In any event, the Court is called upon to answer the question referred to it upon agreed facts.
Regard must also be had to s 361(1) of the Act which is in Pt XXII - Court of Disputed Returns. The sub-section reads:
"The Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of any Roll."
The operation of s 361(1) (and its predecessor) has been considered by this Court on several occasions[42]. In Berrill v Hughes Mason J referred to In re Berrill's Petition, where s 190 (the predecessor of s 361(1)) was discussed, in particular the judgment of Stephen J, and said[43]:
"[H]is Honour pointed out that the section precluded the Court of Disputed Returns from entering upon any inquiry into the correctness of any Electoral Roll. His Honour pointed to the remedies which were available under the Commonwealth Electoral Act ... to persons whose claims for enrolment had been refused and to persons whose names had been removed from the Roll."
Reference has been made in these reasons to Pt X of the Act where the remedies for wrongful refusal of enrolment or for wrongful removal from the Roll are contained.
Having regard to the formulation of the question now before the Court, s 361(1) of the Act does not of itself dispose of the matter. But it does point up the importance of the state of the Rolls and gives emphasis to the procedures available under the Act where the state of a Roll is in issue. If those procedures are not invoked, it is not for the Court of Disputed Returns "to go behind the Electoral Roll and determine whether a person who is not on the roll is none the less entitled to be on the roll"[44].
Other considerations
Counsel for Mr Snowdon also prayed in aid provisions of the International Covenant on Civil and Political Rights and the Racial Discrimination Act 1975 (Cth).
The International Covenant on Civil and Political Rights appears as Sched 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That Act does not incorporate the Covenant into Australian law. But counsel relied upon a passage in the judgment of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh[45] in which their Honours referred to the principle that "a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law". There are passages to like effect in other judgments in that case[46], and in Polites v The Commonwealth[47].
Counsel then referred to Art 25 of the Covenant which speaks of the right of every citizen, without unreasonable restrictions, to vote and Art 26 which requires the law to prohibit discrimination. The respondents' answer was that the language of the Act is clear, that the provisions of the Act concerning enrolment and voting are uniform throughout Australia and that it is the application of the principles contained in the Act to the particular facts of the case that is in issue here. We accept that answer.
As to the Racial Discrimination Act, there is simply no factual foundation upon which the Court could have regard to the position of Aboriginal persons in the Northern Territory in answering the question which has been put to it.
In any event it does not appear that reliance upon the Covenant or the Racial Discrimination Act falls within the terms of the petition. There is no provision in the Act for extending the time allowed by s 355(e) for the filing of a petition and there is no power in the Court of Disputed Returns to dispense with that provision[48].
Conclusion
It follows from what has been said in these reasons that the DRO was not bound to have been satisfied that any of the 1,594 persons who cast provisional votes was entitled to be enrolled for the Division of the Northern Territory. Accordingly, the first part of the question asked of the Court should be answered "No". The second part of the question does not fall to be answered.
[1] Strictly speaking, the document before the Court was a special case pursuant to O 35 of the High Court Rules, made applicable by O 68 r 2 to proceedings in the Court of Disputed Returns.
[2] "DRO" is defined by s 4(1) as meaning "Divisional Returning Officer".
[3] s 56.
[4] s 56A. By s 4(1), "Northern Territory" includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
[5] See s 84 of the Act.
[6] s 4(1).
[7] s 82(3).
[8] s 99(1).
[9] s 99(2).
[10] s 99(3).
[11] s 101(4), subject to s 101(5A).
[12] s 101(5), (6), subject to s 101(5A).
[13] s 92(2) is within Pt VI, which deals generally with Electoral Rolls.
[14] s 105(1)(g).
[15] s 114(1), read with s 4(5).
[16] s 114(2), read with s 4(5).
[17] s 118(3), read with s 4(5).
[18] s 266(1).
[19] s 266(3).
[20] s 235(1).
[21] Defined by s 4(1) to mean postal votes, pre-poll votes, absent votes or provisional votes.
[22] Paragraph 10 is applicable "If the preliminary scrutiny relates to a Senate election held concurrently with a House of Representatives election or a Senate election held alone." Paragraph 11 is applicable "If the preliminary scrutiny relates to a House of Representatives election not held concurrently with a Senate election." This was a concurrent election. The opening words of par 10 are somewhat ambiguous but the parties proceeded on the footing that, in the case of a concurrent election, par 10 applies to both Senate and House of Representatives elections. If this were not so, there would be an obvious gap in Sched 3.
[23] Sched 3, par 12.
[24] The Division of Kalgoorlie has two Subdivisions.
[25] Subject to s 93(1)(b)(ii).
26 [1920] HCA 35; (1920) 27 CLR 449 at 459.
[27] [1920] HCA 35; (1920) 27 CLR 449 at 468.
[28] [1983] HCA 6; (1983) 152 CLR 254 at 278.
[29] [1975] HCA 46; (1975) 134 CLR 201 at 234, 267-270, 283.
[30] [1977] HCA 60; (1977) 139 CLR 585 at 598, 601, 602, 604, 607, 608-609.
[31] R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254 at 260, 278-279.
[32] R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254 at 279-280.
33 [1993] HCA 32; (1993) 178 CLR 34 at 39.
[34] Also referring to the Commonwealth Electoral Act.
[41] See McGinty v Western Australia [1996] HCA 48; (1996) 70 ALJR 200 at 204, 213, 240; [1996] HCA 48; 134 ALR 289 at 295, 307-308, 344-345.
[42] Perkins v Cusack (1929) 43 CLR 70 at 75; In re Berrill's Petition [1976] HCA 50; (1976) 134 CLR 470 at 472-474; Berrill v Hughes (1984) 59 ALJR 64 at 66; Re Brennan; Ex parte Muldowney [1993] HCA 53; (1993) 67 ALJR 837 at 840; [1993] HCA 53; 116 ALR 619 at 623-624.
[43] (1984) 59 ALJR 64 at 66.
[44] Re Brennan; Ex parte Muldowney [1993] HCA 53; (1993) 67 ALJR 837 at 840; [1993] HCA 53; 116 ALR 619 at 623 per Mason CJ.
[45] [1995] HCA 20; (1995) 183 CLR 273 at 287.
[46] [1995] HCA 20; (1995) 183 CLR 273 at 300-301, 304, 315.
[47] [1945] HCA 3; (1945) 70 CLR 60 at 68-69, 77, 80-81.
[48] Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 and the authorities referred to therein; Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818; 116 ALR 407.