1996 Election Report: Electoral Litigation

Updated: 5 December 2007

Election Litigation

For the 1996 federal election there were various matters which resulted in legal proceedings.

Injunctions

An injunction is a court order by which a party to an action is required to do, or stop doing, a particular thing. Injunctions are usually sought at short notice, for immediate effect.

The postal vote application case

Baillieu and Poggioli v Australian Electoral Commission and the Commonwealth (VG 970 of 1996), 22 January 1996, Sundberg J, Federal Court, unreported.

In this case the AEC sought an injunction to prevent the Victorian Branch of the Liberal Party from infringing Commonwealth copyright by printing, publishing and distributing, without authority, a version of the official postal vote application form. The Liberal Party then cross-filed to prevent the Commonwealth asserting its copyright. The Federal Court decided that the Commonwealth had copyright in the postal vote application forms, but could not, in this case, enforce that copyright because of the particular circumstances.

The Senate ballot paper cases

Owen v Longland (1257 of 1996), 20 February 1996, Williams J, Queensland Supreme Court, unreported.

In this case Mr Ronald Owen of The Constitutionalists, a political party not registered with the AEC, applied for an injunction in the Queensland Supreme Court to prevent the Queensland Senate election from proceeding until the name of the party was added to the ballot paper after the name of their ungrouped Senate candidates. The Supreme Court dismissed the application with costs.

Re Australian Electoral Officer; ex parte Abbotto (M13 of 1996), 28 February 1996, Dawson J, High Court, unreported.

Mr John Abbotto applied for an injunction in the High Court to prevent the AEC from continuing its electoral advertising campaign on the Senate voting system, on the grounds that it was misleading in relation to ungrouped candidates on the ballot paper. The High Court dismissed the application.

The Langer cases

Injunction order:

Australian Electoral Commission v Langer (4287 of 1996), 8 February 1996, Beach J, Supreme Court of Victoria, unreported

Contempt order: Australian Electoral Commission v Langer (4287 of 1996), 14 February 1996, Beach J, Supreme Court of Victoria, unreported.

Injunction appeal: Langer v Australian Electoral Commission (VG 96 of 1996), 1 March 1996, Black CJ, Lockhart and Beaumont JJ, Federal Court, unreported.

Contempt appeal: Langer v Australian Electoral Commission (VG 96 of 1996), 7 March 1996, Black CJ, Lockhart and Beaumont JJ, Federal Court, unreported.

On 8 February 1996 the AEC obtained an injunction from the Victorian Supreme Court to restrain Mr Albert Langer from breaching section 329A of the CEA. On 14 February Mr Langer was jailed by this Court until 30 April for contempt of the orders of the Court. Mr Langer's appeal against the injunction was dismissed by the Federal Court on 1 March, and on 7 March, on appeal from the contempt order, Mr Langer was given early release from jail.

Langer v Commonwealth (1996) 70 ALJR 176

In a related matter arising from the 1993 federal election, when Mr Langer failed to obtain an injunction against the AEC, the High Court ordered on 7 February 1996 that section 329A of the CEA is a valid enactment of the parliament, because it prohibits conduct that might undermine full preferential voting as required by the CEA, and therefore does not infringe the implied freedom of political communication in the Constitution.

Prosecutions

At the time of publication no major prosecutions had been initiated under the offences provisions of the CEA, although a number of investigations were still in progress.

Petitions to the Court of Disputed Returns

The validity of an election can only be challenged by a petition to the Court of Disputed Returns.

A petition must:

  • set out, with sufficient detail, the facts relied on;
  • contain a prayer asking for the relief the petitioner claims to be entitled to;
  • be signed by a candidate at the election or by a person qualified to vote at the election;
  • be signed by 2 witnesses; and
  • be accompanied by a deposit of $500 as security for costs.

A petition must be filed in the Registry of the High Court within 40 days after the return of the writ.

Petitions disputing the 1996 federal election were required to be filed by 13 May 1996 for the House of Representatives and various dates for the Senate:
6 May 1996 Northern Territory
7 May 1996 Tasmania + Australian Capital Territory
14 May 1996 Queensland + Western Australia
20 May 1996 New South Wales + South Australia
21 May 1996 Victoria

The following petitions were filed with the Court of Disputed Returns against three House of Representatives elections and one Senate election.

1. The Free petition: Free v Kelly (S 94 of 1996) High Court, Sydney Registry.

A petition was filed by Mr Ross Free challenging the election of Ms Jacqueline Kelly in the division of Lindsay, New South Wales, on the grounds that she was constitutionally disqualified from standing as a candidate or sitting as a member of the House of Representatives because, at the time of nomination, she held an office of profit under the Crown and dual nationality.

2. The Snowden petition: Snowden v Dondas and the AEC (S 95 of 1996) High Court, Sydney Registry.

A petition was filed by Mr Warren Snowden challenging the election of Mr Nick Dondas in the division of the Northern Territory on the grounds that approximately 2 200 provisional votes were improperly rejected. The AEC is named as the second respondent.

3. The Stevenage petition: (Stevenage v Filing (P 26 of 1996) High Court, Perth Registry.

A petition was filed by Mr Paul Stevenage challenging the election of Mr Paul Filing in the division of Moore, Western Australia, on the grounds of bribery, misleading advertising, interference with political liberty, and defamation.

4. The Abbotto petition: (Abbotto v Commonwealth Electoral Officer (M 37 of 1996) High Court, Melbourne Registry.

A petition was filed by Mr John Abbotto challenging the Senate election in Victoria on the grounds of discrimination against ungrouped Senate candidates on the Senate ballot paper. The Commonwealth Electoral Officer is named as respondent.

Senate reference to the court of disputed returns

Section 376 of the CEA provides that any question on the qualifications of a Senator or a member of the House of Representatives may be referred by resolution to the Court of Disputed Returns by the house in which the question arises.

A question arose as to whether Senator-elect Jeannie Ferris, whose term as a Senator is due to commence on 1 July 1996, held an office of profit under the Crown, which would disqualify her from being elected or sitting as a Senator under section 44(iv) of the Constitution. Accordingly, on 29 May 1996 the Senate resolved to refer the question to the Court of Disputed Returns. The resolution will take effect on 14 July 1996 should Ms Ferris be a member of the Senate at that time.

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