FEATHERSTON v TULLY No. SCCIV-02-481 [2002] SASC 243 (1 August 2002)

Last Updated: 12 July 2005

Court

SUPREME COURT OF SOUTH AUSTRALIA

Judgment of the Full Court

Hearing

02/07/2002 to 03/07/2002.

Catchwords and Materials Considered

CONSTITUTIONAL LAW --- THE NON-JUDICIAL ORGANS OF GOVERNMENT --- THE LEGISLATURE --- ELECTIONS AND RELATED MATTERS --- DISPUTED ELECTIONS --- DISPUTED ELECTION COURTS OR TRIBUNALS --- JURISDICTION CONSTITUTIONAL LAW --- THE NON-JUDICIAL ORGANS OF GOVERNMENT --- THE LEGISLATURE --- ELECTIONS AND RELATED MATTERS --- DISPUTED ELECTIONS --- DISPUTED ELECTION COURTS OR TRIBUNALS --- PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS

State election - petition seeking declaration that the election for one House of Assembly seat is void -petitioner claims the successful candidate engaged in misleading advertising contrary to s 113 of the Electoral Act 1985 - petitioner claims other `electoral misconduct' and defamation by successful candidate - petitioner claims that successful candidate's conduct prior to and after the election was contrary to s 83 of the Constitution Act 1934 - whether the jurisdiction of the Court of Disputed Returns conferred by s 103(2) of the Electoral Act 1985 is exercisable by the Supreme Court by a judge as persona designata - whether s 102 of the Electoral Act confers jurisdiction on the Court of Disputed Returns to determine the issues raised by the petitioner - whether s 107 of the Electoral Act specifies exclusively the grounds on which an election may be declared void - consideration of the extent of the power of the Court of Disputed Returns to declare an election void - applicability of, and content of the common law of elections - consideration of the effect of s 106 of the Electoral Act that the Court be guided by `good conscience and the substantial merits' - whether the conduct alleged by the petitioner, if proved, could constitute an irregularity in or affecting the conduct of the election for the purposes of s 107(3) of the Electoral Act - whether the jurisdiction of the Court of Disputed Returns is repugnant to, incompatible or inconsistent with the conferral of or exercise by the Supreme Court of the judicial power of the Commonwealth.

Australian Constitution 1900 s 71, s 73, s 79, s 47;

Ballot Act 1872 (UK) ;

Bill of Rights 1688 Article 9;

Commercial Tribunal Act 1982 (SA) s 13;

Commonwealth Electoral Act 1918 (Cth) s 161, s 329, s 352, s 354, s 360, s 362, s 364;

Constitution Act 1934 (SA) s 38, s 43A, s 44, s 45, s 47, s 83, s 86(2);

Corrupt Practices Prevention Act 1854 (UK) s 36;

Electoral Act 1904 (WA) s 159, s 163, s 165, s 167, s 170, s 171, s 172;

Elections Tribunal Act 1886 (Qld) ;

Elections Act 1915 (Qld) ;

Electoral Act 1992 (Qld) s 136;

Electoral Act 1929 (SA) s 85, s 146-149, s 151, s 154, s 167, s 168, s 177, s 182, s 187a-c s 191;

Electoral Act 1985 (SA) s 8, s 52, s 63, s 102-110, s 112-130, s 133;

Parliamentary Elections Act 1868 (UK) s 5, s 25, s 26;

Parliamentary Privileges Act 1987 (Cth) ;

Sydney Corporation Act 1902 (NSW) s 40, s 54, referred to.

Borough of Bolton (1874) 2 O'M & H 138;

Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582;

Sue v Hill [1999] HCA 30; (1999) 199 CLR 462;

The West Division of the Borough of Islington (1901) 5 O'M & H 120;

Woodward v Sarsons (1875) LR 10 CP 733;

Gilbertson v South Australia [1978] AC 772;

Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313;

Re Tracey ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, applied.

Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297;

Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627;

Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, distinguished.

Re Carroll v Electoral Commission of Queensland [1998] QSC 190 (21 September 1998);

The Flinders Election Petition. Forde v Lonergan [1958] Qd R 324;

Tanti v Davies (No. 3) [1996] Qd R 602, not followed.

Crafter v Webster (1980) 23 SASR 321;

The Ithaca Election Petition. Webb v Hanlon [1939] St R Qd 90;

King v Electoral Commissioner (1998) 78 SASR 172;

Ory & Ory v Betamore Pty Ltd [1993] SASC 3996; (1993) 60 SASR 393;

Chanter v Blackwood No 2 [1904] HCA 48; (1904) 1 CLR 121, discussed.

Blackburn Election Petition [1869] 20 LT (NS) 823; 1 O'M & H 198;

Borough of Hackney (1874) 2 O'M & H 77;

British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422;

Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198;

Commonwealth v Queensland & Anor [1975] HCA 43; (1975) 134 CLR 298;

Eastern Division of the County of Clare (1892) 4 O'M & H 162;

Egan v Willis [1998] HCA 71; (1998) 195 CLR 424;

Evans v Crichton-Browne [1981] HCA 14; (1980) 147 CLR 169;

ex parte Gale (1890) 7 WN 1;

Gribbin v Kirker 7 IR CL 30;

ex parte Huston [1911] NSWStRp 41; (1911) 11 NSWSR 200;

Ipswich Election Petition [1886] 54 LT (NS) 619; 4 O'M & H 70;

ex parte Moore (1987) 8 NSWLR 108;

Peacock v Newtown Marrickville Building Society [1943] HCA 13; (1943) 67 CLR 25;

Prebble v Television New Zealand [1995] 1 AC 321;

Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26;

Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450;

Roberts & Case v Bass [2000] SASC 297; (2000) 78 SASR 302;

SA Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Ltd (1975) 68 LSJS 172;

Santos Ltd v Saunders (1988) 49 SASR 556;

The Millicent Election Petition; Cameron v Corcoran (Unreported, 13 June 1968);

The Minister for Works (WA) v Civil & Civic Pty Ltd [1967] HCA 18; (1966-67) 116 CLR 273;

Thomas v Airlines of New South Wales Pty Ltd (1964) 64 SR (NSW) 176;

Walkley v Dairyvale Cooperative Ltd (1972) 39 SAIR 327;

ex parte Whatmore (1908) 25 WN 7;

Wright v Lewis (1990) 53 SASR 416, considered.

Representation

Petitioner: BARRY JAMES FEATHERSTON

Counsel: MR R WHITINGTON QC WITH MR S DOYLE - Solicitors: ROWELL FORREST

Respondent: STEVEN HUNTER TULLY

Counsel: MR M WALTER WITH MS M PANAGIOTIDIS - Solicitors: CROWN SOLICITOR

Intervener: IVAN PETER LEWIS

Counsel: MR S TILMOUTH QC WITH MR C KOURAKIS QC AND MR A TOKLEY - Solicitors: VAN DISSEL SOLICITORS

SCCIV-02-481

Judgment No. [2002] SASC 243

1 August 2002

(Full Court: Mullighan, Williams and Bleby JJ)

FEATHERSTON v TULLY

[2002] SASC 243

Full Court: Mullighan, Williams and Bleby JJ

MULLIGHAN J I would answer the questions in the Case Stated as proposed by Bleby J for the reasons which he has given. I agree with those reasons and there is nothing which I can usefully add.

WILLIAMS J I have read the reasons for judgment prepared by Bleby J who has comprehensively reviewed the legal principles. Subject to the undermentioned comments I agree with his analysis and with the answers which Bleby J would give to the formal questions.

1 The nature of the Court's jurisdiction

In my opinion the jurisdiction exercisable pursuant to s 103(2) of the Electoral Act 1985 (SA) has been conferred on the Supreme Court and not upon a judge as persona designata. To adopt the language of the Privy Council in Gilbertson v South Australia [1978] AC 722 at 786 "their meaning is clear and unequivocal and ... the character of the jurisdiction ... provides no justification for giving to [Supreme Court] of the Electoral Act anything but its ordinary meaning." (Gilbertson's case was decided by reference to jurisdiction given to the Full Supreme Court under s 86(2) of the Constitution Act 1934 (SA)).

Counsel for Mr Tully based an argument upon Holmes v Angwin [1906] HCA 64; [1906] 4 CLR 297 to support his contention that this jurisdiction is conferred upon a judge as persona designata. Mr Featherston relied upon Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 to advance a contrary submission. In my opinion the principles in these two cases may be reconciled. However, some explanation is required as to why an attempted appeal to the High Court from a State Court of Disputed Returns does not attract the judicial power of the Commonwealth (see Holmes v Angwin) although the High Court's own exercise of jurisdiction as Court of Disputed Returns for the Commonwealth does attract that power (see Sue v Hill).

The Supreme Court as the Court of Disputed Returns exercises judicial power but nevertheless, the subject matter of its orders do not fall within "the judicial power of the Commonwealth" for appellate purposes under Chapter III of the Australian Constitution. When exercising this jurisdiction the Court is to be regarded as being part of the electoral machinery to determine on behalf of the Parliament of South Australia questions as to the validity of an election; the first duty of every representative body is to verify the identity of those who are to compose that body; in discharging this function the Court is therefore not concerned with the ordinary rights of parties as litigants. In my opinion it is not inconsistent with this special characterisation (for appeal purposes) of the jurisdiction of the Court of Disputed Returns under the Electoral Act of South Australia to treat the High Court as being empowered under Chapter III to determine similar questions (at first instance) under the Commonwealth Electoral Act 1918 (Cth) in exercise of the judicial power of the Commonwealth.

In Commonwealth v Queensland & Anor [1975] HCA 43; (1975) 134 CLR 298 at 325 Jacobs J said that judicial power is not co-extensive with the limits of "judicial power of the Commonwealth" as described in s 71 of the Australian Constitution. They are two different notions (see Lane's Commentary on the Australian Constitution - 2nd ed at 462). As a result, the exercise of judicial power by the Supreme Court of a State does not always give rise to "a judgment decree order or sentence" within s 73 of the Australian Constitution. An example is provided by The Minister for Works (WA) v Civil and Civic Pty Ltd [1967] HCA 18; (1966-1967) 116 CLR 273 where (with reference to a case stated by arbitrators to a Full Supreme Court) Barwick CJ said at 277:

"The Full Court in dealing with the respondent's appeal from the opinion of the primary judge was acting as the Supreme Court of Western Australia. Both the Court and the judge were performing a judicial function in the sense that they were deciding a question of law, though in a constitutional sense, as far as the Court is concerned, it would not have been an exercise of judicial power."

In that case the Court was dealing with a consultative opinion by the Court as opposed to a decision which determined rights.

Likewise in the case of State elections the Supreme Court sitting as a Court of Disputed Returns is not concerned with the rights of parties as litigants but with questions which were once determined by the legislature itself. The special nature of the jurisdiction upon its transfer to the Court or to a Judge is such as to give rise to the exercise of judicial power although lying outside the notion of "Judicial Power of the Commonwealth" as used in s 71 of the Australian Constitution to set the limits of Chapter III jurisdiction.

In Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313 at 324 Starke J in discussing Holmes v Angwin said:

"It is not the form that should be examined but the substance of the matter, and the truth is that the whole inquiry, whether before the Elections Tribunal or the Full Court, is an inquiry merely incidental to, and for the purposes of determining, the right of some person to sit in Parliament: see Holmes v Angwin (1906) 4 CLR at 306.

The provisions are all part of the electoral machinery and have nothing to do with the ordinary rights of parties who are litigants. They give jurisdiction to an independent and impartial tribunal to determine questions that once were determined by the legislature itself. And Holmes v Angwin is, in my mind, decisive that the legislature can designate its courts or judiciary for this special purpose without involving the consequence that its determinations are subject to the review of this court. It would be surprising if such determinations came under the review of this court, for rights and privileges of the kind in question here have been jealously "maintained and guarded" and regarded as pertaining to the legislative body concerned or its substitute."

Dixon J at 327 said:

"...decision of this court in Holmes v Angwin puts the Elections Tribunal outside the category of courts from whose judgments, decrees, orders, or sentences an appeal lies to this court; at all events, it establishes that the decision of that tribunal is not an order of the Supreme Court from which an appeal is given by s 73 of the Constitution."

In my opinion these statements from Webb v Hanlon identify the ratio of Holmes v Angwin.

The conclusion that the orders of a Court of Disputed Returns (established by the Parliament of a State) will not attract appellate powers under Chapter III of the Constitution is not inconsistent with the reasoning of the majority of the High Court in Sue v Hill (supra) which treated the original jurisdiction exercisable by a Court of Disputed Returns under the Commonwealth Electoral Act 1918 as falling within the "judicial power of the Commonwealth" under Chapter III. The Australian Constitution (s 47) has empowered the Australian Parliament to "provide" as to how questions with respect to disputed elections should be determined. This has been achieved in the Commonwealth Electoral Act by a conferral of jurisdiction on the High Court itself (a Chapter III Court) to be exercised by a single judge in accordance with s 79 of the Constitution coupled with a prescription under s 73 of the Constitution to achieve finality for the single judge's decision. However, in some circumstances this jurisdiction is conferred on a Supreme Court of a State (see Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at 481 and 522). The Australian Parliament could only establish such a regime in accordance with Chapter III and as a matter of statutory construction it can be seen how the jurisdiction conferred by the Commonwealth Electoral Act gives rise to Chapter III powers. However, it does not follow as a matter of analogy that jurisdiction exercised under State electoral laws should be treated as giving rise to orders which for appeal purposes lie within the "judicial power of the Commonwealth." Nor does it follow that all investiture of judicial power by the Commonwealth Parliament is necessarily to be characterised as lying within "the judicial power of the Commonwealth." It is recognised in re Tracey ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 that a court martial in performing its functions is exercising judicial power sui generis to the judicial power of the Commonwealth but nevertheless excluded from Chapter III (see at 540, 574 and 582) notwithstanding that "Chapter III of the Constitution confides the judicial power of the Commonwealth exclusively in courts of justice" (see at 539). Deane J rationalised the approach adopted in that special instance by reference to the way in which the exercise of the relevant powers had "traditionally been seen". Brennan and Toohey JJ (at 573) referred to the historical or traditional classification of a function as a significant factor to be taken into account in the process of characterisation. It seems to me that the history of Courts of Disputed Returns exercising jurisdiction under State law (to determine questions on behalf of the State Parliament) likewise justifies the exceptional treatment which has been accorded such courts in terms of characterisation of function.

The decision in Holmes v Angwin was given at a time when an understanding of constitutional principle was different from that which has now emerged. In Sue v Hill Gleeson CJ, Gummow and Hayne JJ at 482 (commenting upon that earlier decision) say:

"...Their Honours were speaking at a time before it was recognised in this Court that, whilst some powers when entrusted to a repository other than a court may be characterised as legislative or administrative and non-judicial, when they are entrusted in an appropriate context to a court they may involve the exercise of judicial power. This functional analysis appears to have been first recognised by Isaacs J in 1926.

In Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 178, Isaacs J included "the determination of the validity of parliamentary elections" among matters which were subject to no a priori exclusive delimitation but were capable of assignment by Parliament to more than one branch of government. Such a matter, his Honour continued, was "capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances"; to deny that proposition would be to "seriously affect the recognised working of representative government".

For these reasons I conclude that neither the decision in Holmes v Angwin nor Sue v Hill stands in the path of giving to the language of s 103(2) of the Electoral Act SA the "ordinary" meaning which I have attributed to it earlier in these reasons.

2 The grounds upon which the Court may intervene

Section 79 of the Electoral Act (SA) (as to the secrecy of the ballot) was mentioned during argument but its implications were not explored. In my opinion it is arguable that constraints are imposed upon the Court of Disputed Returns by the need to maintain the public policy which underlies this section.

Although upon its face this point deals with a question of evidence, I consider that it may reflect a fundamental principle bearing upon what is capable of being proved as well as influencing the proper construction and operation of Part 12 Division 2 of the Electoral Act (SA). Arguably it is a principle which cannot be waived by agreement between the parties and the witnesses.

Counsel for the plaintiff acknowledged that part of his case will involve evidence as to the manner in which individual electors voted. It is arguable that this evidence cannot be received even with the elector's consent; it may be that to the extent that any ground of complaint by the petitioner necessarily will involve such an enquiry, then the Electoral Act (SA) should be read down; in such circumstances the outcome may be that the purported ground of appeal is not available.

In ex parte Huston [1911] NSWStRp 41; (1911) 11 NSWSR 200 the Full Supreme Court of New South Wales upheld the principle that the secrecy of the ballot ("which the law so zealously guards") must not be violated (even voluntarily) in a challenge to an election (see also ex parte Whatmore (1908) 25 WN 7 ex parte Moore [1887] NSWLawRp 27; (1887) 8 LR (NSW) 108 at 112 and ex parte Gale (1890) 7 WN 1). In Chanter v Blackwood No 2 [1904] HCA 48; (1904) 1 CLR 121 at 128 Griffith CJ said (with reference to a number of objections to the manner of conduct of an election):

"...I can only come to the conclusion that any inquiry on the part of the Court with the view of discovering in which way any voter has voted, would be contrary to the intentions of the legislature. It is no part of my duty to express any opinion as to whether this is the best method of conducting an election. It is always open to the objection that it may in many cases lead to inconvenience. An election may be avoided, even although it is morally certain that all the votes wrongly given have been given against the candidate who has been declared elected, so that the result has not really been affected. But the other objection, that the secrecy of the ballot would be infringed, appears to have outweighed this objection. I must assume that the legislature thought that the possible disclosure of the way in which a voter voted was a greater evil than the other, and that their intention was that no such inquiry should be made. Therefore I am not justified in entering into any inquiry as to how these voters voted."

I do not have any concluded view upon this point but as we have been required to examine generally the grounds upon which the Court of Disputed Returns might interfere I would wish to reserve this particular question for consideration as it arises.

In my opinion (as now relevant) the Court of Disputed Returns derives a general power from s 102 of the Electoral Act (SA) when in accordance with common law principles the "validity" of an election is put in issue. Section 107(3) and (4) of the Act then modifies the principles upon which otherwise a Court would be required to act when applying the common law of elections. The common law principles themselves are to be found collected in Woodward v Sarsons (1875) 10 LRCP 733, the Islington West Division Case (1901) 5 O'M & H 120 and in Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582. As all cases involve to some degree the application of a particular statute I am cautious in identifying the principles by reference to any one case. However, I see nothing in these cases which prevents the Court from insisting that the secrecy of the ballot should not be infringed.

3 Irregularities in an election

Section 107(3) of the Electoral Act provides that:

"(3) An election will not be declared void on the ground of-

(a) a defect in a roll or certified list of electors; or

(b) an irregularity in, or affecting, the conduct of the election,

unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity."

The rules under which an election is to be conducted are set out generally in pts 7-11 of the Electoral Act (SA). An individual breach of these rules will constitute an "irregularity". Part 13 also sets out a number of illegal practices some of which may give rise to an "irregularity in or affecting the conduct of an election". However, not all conduct which is proscribed under pt 13 will (if adopted) constitute an "irregularity in or affecting the conduct of an election.".

Division 1 of Part 13 deals with bribery and undue influence but it is not limited to steps "in or affecting the conduct of the election". Division 3 of Part 13 sets out a list of "offences related to the conduct of an election"; a breach of the regulatory framework of that Division will constitute an irregularity within s 107(3). Division 2 of Part 13 (which includes s 113) is to be treated somewhat differently.

Thus, although s 113 creates the offence of "misleading advertising" I do not consider that the section is expressed in a form which contains a rule relating to the conduct of the election. Section 113 creates an offence of misleading advertising (and provides a defence) and then provides a code whereby the Electoral Commissioner may take steps (with the aid of the Supreme Court if necessary) to prevent further publication and to obtain a retraction. In some limited circumstances an advertisement might bear upon the actual conduct of the election (for example if it contained misleading information as to where a polling booth was situated); in such circumstances the effect of the publication would stand to be assessed in accordance with common law principles as to whether there really had been an election in which electors had a proper opportunity to record a vote; alternatively the question might be asked whether the conduct infringed something which was implicit in the regulatory framework of the Electoral Act and susceptible of being dealt with under s 107(3)(b) as an irregularity (particularly if an electoral officer was involved). The working out of such a hypothetical example has not been argued and the application of general principle should be reserved until the point actually arises. However, I do not consider that s 113 contains a rule "in or affecting the conduct of an election" in the same way as does Part 13 Division 3. Whereas Division 3 (as its heading denotes) is concerned with actions in or affecting the conduct of the election for the purposes of s 107(3), Division 2 deals with advertising during the election period without purporting to touch the conduct of the election. Advertising in the vicinity of the polling booth is dealt with in Division 3 (see s 125(1)); signage displayed at polling booths by the Electoral Commission is dealt with in Pt 8. Breaches of these last-mentioned rules will give rise to "irregularities" within s 107(3) and are to be distinguished from the consequences of a breach of s 113 by reason of misleading advertising.

4 Other issues

Roberts & Case v Bass [2000] SASC 297; (2000) 78 SASR 302 is an example of a civil defamation suit arising out of electoral material published in the course of a campaign which preceded the State general election held on 11 October 1997; there were a series of libellous publications including a forged "frequent flyer" statement of account on the supposed letterhead of Ansett Australia which purported to show (quite wrongly) activities which reflected adversely upon the plaintiff who was a candidate at the election. If that factual situation were translated into a complaint before the Court of Disputed Returns (and bearing in mind the tentative views which I have expressed as to the secrecy of the ballot) I would see no difficulty in adducing evidence as to the effect of such material on individual electors without disclosing the manner in which an individual vote was cast in that or any previous election. Nevertheless, an inference might be available and with the assistance of s 106 of the Electoral Act (SA) a Court might be able to be satisfied to the extent required by s 107(4).

I would superimpose these tentative views upon the statements of principle expressed by Bleby J which I would otherwise endorse.

Argument was addressed as to the significance of s 106 of the Electoral Act (SA) - requiring the Court to be "guided by good conscience and the substantial merits of each case." This provision is in similar form to s 364 of the Commonwealth Electoral Act which was discussed in Sue v Hill [1999] HCA 30; 199 CLR 462 at 485 (per Gleeson CJ, Gummow and Hayne JJ), at 520 (per Gaudron J) and 548 (per McHugh J); the joint judgment refers to British Imperial Oil v FCT [1925] HCA 4; (1925) 35 CLR 422 at 438-441 and Peacock v Newtown Marrickville Building Society [1943] HCA 13; (1943) 67 CLR 25 where the effect of legislation in the relevant form is discussed. It thus appears that the requirements of s 106 are not inconsistent with the exercise of judicial power. The Court is required to observe the rules of procedural fairness and is not exonerated from applying the substantive rules of law. A Court would not be acting in accordance with the substantial merits and in accordance with good conscience if it were to determine the issues otherwise than by the application of the relevant law to the facts established by the evidence to be probative but which may or may not accord with the rules of evidence.

A question was raised in the case stated as to whether the function of the Court of Disputed Returns is repugnant to or inconsistent with the exercise of the judicial power of the Commonwealth. As I have already observed I do not consider that under the South Australian Electoral Act the Court of Disputed Returns exercises judicial power of the Commonwealth in this instance although the Supreme Court is a body which is especially mentioned in s 73 of the Australian Constitution. I do not consider that the nature of the jurisdiction is such as would compromise the judicial institution in the manner discussed in Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51.

5 Conclusion

In my opinion the matters alleged in pars 12-18 and par 19 of the petition respectively do not give rise to "irregularities" but the Court of Disputed Returns is the appropriate body to decide whether the effect of the material is such that (in accordance with common law principles) the electors have been thereby denied the opportunity of electing the candidate of their choice.

Paragraphs 20-22 of the petition allege defamation; the Court of Disputed Returns will deal with this topic by the application of s 107(4) of the Electoral Act (SA).

Paragraphs 23-28 of the petition rely upon the application of s 83 of the Constitution Act (SA). That section is directed at the task of the Electoral Boundaries Commission and is irrelevant to the manner in which a candidate for election or Member of Parliament conducts himself or herself so as to give rise to a ground for complaint upon the present petition.

For these reasons I answer the questions upon the case stated in the manner proposed by Bleby J.

BLEBY J:

Background

The petitioner was an unsuccessful candidate in an election for the electoral district of Hammond in the House of Assembly of the Parliament of the State. The election was part of a general election held on 9 February 2002. The petitioner was the candidate endorsed by the Liberal Party. Mr Lewis was the winning candidate and was declared duly elected. He represented a group known as the Community Leadership Independence Coalition Party.

Besides the petitioner and Mr Lewis, there were three other candidates: one representing the Australian Labor Party (Mr McLaren) and two other candidates representing minor parties.

Upon the scrutiny of the votes cast, the petitioner had gained the highest number of first preference votes, but not an absolute majority. The preferences of the two candidates representing the minor parties, having gained the lowest number of first preferences, were progressively distributed, leaving the petitioner, Mr Lewis and Mr McLaren (in that order) but still with the petitioner without an absolute majority. Mr McLaren's preferences were then distributed, resulting in Mr Lewis winning the election.

The petitioner has filed a petition addressed to the Court of Disputed Returns under Pt 12, Div 2 of the Electoral Act 1985 ("the Act"), in which he seeks a declaration that the election for the seat of Hammond was void.

There are several grounds on which he seeks such a declaration. In pars 12 to 18 inclusive of the petition, he alleges that certain advertisements authorised by Mr Lewis contained statements that were inaccurate and misleading to a material extent, and that each of them was authorised or published by Mr Lewis in contravention of s 113 of the Act. It will be necessary to return to the detail of that section later.

As a separate ground for the declaration it is alleged in par 19 of the petition that Mr Lewis was engaged in misconduct in connection with the election in that certain advertisements and statements of Mr Lewis were calculated to induce electors to vote for him in the belief and expectation that if they merely voted "1" for him, in accordance with the procedure provided for in s 93 of the Act, they would be directing their second preference vote to the petitioner in the event of a distribution of votes cast for Lewis, whereas in fact voters marking their ballot papers in that manner would have been effectively casting a second preference vote for the Labor Party candidate in accordance with a voting ticket registered by Mr Lewis pursuant to s 63 of the Act. It is not alleged that this constituted misleading advertising for the purposes of s 113. The petition seeks a finding that this constituted "electoral misconduct" by Mr Lewis. That is not an expression used in the Act.

As further separate grounds for the declaration, the petitioner alleges in pars 20 to 22 inclusive of the petition that in two advertisements published by Mr Lewis and a How-to-Vote card distributed on his behalf, he caused to be published words which were defamatory of the petitioner.

Finally, in pars 23 to 28 of the petition it is alleged that by reason of the matters previously alleged and the stance adopted by Mr Lewis in the period immediately prior to the election that he would support the formation of a Liberal Party government, he was bound to do so by virtue of the provisions of s 83 of the Constitution Act 1934, and was bound not to give his support to elected candidates of the Australian Labor Party to form a government. It recites that after the election he announced support for elected candidates of the Australian Labor Party to form a government and has since given such support. The petition further claims that in other elections held on the same day, the candidates representing the Liberal Party as a group attracted more than 50 per cent of the popular vote determined in accordance with s 83(1) of the Constitution Act, and that the actions of Mr Lewis, and in particular his actions in supporting the Australian Labor Party, also constitute electoral misconduct.

The respondent is the Electoral Commissioner under the Act and is the statutory respondent to the petition. Mr Lewis has been granted leave to intervene. Both the respondent and Mr Lewis have filed responses to the petition. It is not necessary for present purposes to analyse those responses.

The following four questions arising out of the petition have been referred to the Full Court:

"1. Is the jurisdiction conferred pursuant to sec 103(2) of the Act exercisable by the Supreme Court on the one hand or exercisable by a Judge of the Court as persona designata (or more than one Judge in that capacity) on the other hand.

2. Does section 102 of the Electoral Act 1985 confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in:-

(a) any or all and if so which of paragraphs 12 to 18 inclusive and paragraph (1) of the prayer for relief of the Petition?

(b) Paragraph 19 and paragraph (3) of the prayer for relief of the Petition?

(c) Any or all and if so which of paragraphs 20 to 22 inclusive and paragraph (2) of the prayer for relief of the Petition?

(d) Any or all and if so which of paragraphs 23 to 28 inclusive and paragraph (4) of the prayer for relief of the Petition?

3. Does the conduct or any of it, and if so which, alleged in:-

(a) paragraphs 12 to 18 inclusive;

(b) paragraph 19;

(c) paragraphs 23 to 28 inclusive;

of the Petition, if proved, constitute an irregularity in or affecting the conduct of the election for the purposes of section 107(3) of the Electoral Act 1985?

4. Is the conferral on or exercise of the jurisdiction of the Court of Disputed Returns repugnant to or incompatible or inconsistent with the conferral of or exercise by the Supreme Court of the judicial power of the Commonwealth?"

It is convenient to address these questions in turn.

Question 1

The significance of this question goes beyond the mere power of a single Judge in this case to state a case for the opinion of this Court, and the question of the source of that power. If the jurisdiction is truly vested in a Judge as persona designata, question four of this reference need not be answered. If, on the other hand, the jurisdiction of the Court of Disputed Returns is vested in the Supreme Court, question four will have to be addressed.

Section 102 of the Act provides that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise. Section 103 provides:

"(1) The Supreme Court is the Court of Disputed Returns.

(2) The jurisdiction of the Supreme Court, when sitting as the Court of Disputed Returns under this Act, is exercisable by a single judge."

Section 104 sets out certain essential requisites for a petition, and s 105 provides that the Electoral Commissioner is the respondent to any petition.

Section 106 provides:

"(1) The Court is to be guided by good conscience and the substantial merits of each case without regard to legal forms or technicalities.

(2) The Court is not bound by the rules of evidence."

Section 107 specifies the orders that the Court may make. It provides:

"(1) The Court may make any of the following orders:

(a) an order that a person found by the Court not to have been duly elected cease to be a member of the Legislative Council or the House of Assembly (as the case may require);

(b) an order that a person found by the Court to have been duly elected (but not returned as elected) take his or her seat as a member of the Legislative Council or the House of Assembly (as the case may require);

(c) an order declaring an election void and requiring a new election to be held.

(2) The Court may award costs against an unsuccessful party to the petition.

........."

It will be necessary to return to sub-sections (3) and (4) of that section in due course.

Section 108 provides that all decisions of the Court "are final, conclusive and without appeal, and may not be questioned in any way".

Unaided by authority, I would have little difficulty in concluding that the jurisdiction of the Court of Disputed Returns is vested in this Court, which jurisdiction may be exercised by a single Judge. That would appear to be the ordinary and natural meaning of the words used in s 103.

This is to be contrasted with the relevant provisions of the Electoral Act 1929, the predecessor to the present Act. Section 167 constituted a Court of Disputed Returns. Section 168 provided:

"(1) The Court shall -

(a) be constituted, in accordance with subsection (2), of this section by a single Judge of the Supreme Court;

(b) subject to this Act, have the same powers, jurisdiction and authority as a Judge of the Supreme Court presiding at the trial of a civil cause;

and

(c) be a Court of record.

2. The Court shall be constituted -

(a) by the senior puisne Judge of the Supreme Court;

or

(b) where the senior puisne Judge is, for any reason, not available to constitute the Court, by the puisne Judge next in order of seniority, who is so available."

That section clearly vested the jurisdiction of the Court of Disputed Returns in a particular Judge of the Supreme Court as persona designata. It did not confer jurisdiction on the Supreme Court.

The former Act also contained many more procedural provisions than does the present Act. Section 177 of the former Act conferred power on the Court to adjourn, to compel attendance of witnesses and production of documents, to examine witnesses upon oath, to receive evidence on affidavit or by statutory declaration, to regulate the form and mode of its proceedings in each case, to amend or allow the amendment of any petition or reply, to award costs and to punish any contempt.

Section 187a provided that any party to proceedings arising from the petition could be represented by counsel or solicitor. Section 187b conferred a power on the Court to state a question of law for the opinion of the Full Court of the Supreme Court, and s 187c conferred a power to award costs. Finally, s 191 conferred power on the Judges of the Supreme Court or any two of them to make rules of court for regulating the practice and procedure of the Court and other incidental matters. None of those provisions would have been necessary if the jurisdiction were conferred on the Supreme Court.

The present Act contains none of those provisions. This is not surprising because the former Act constituted a separate Court of Disputed Returns, the jurisdiction of which was to be exercised by a designated person, and it was necessary to provide for essential procedural matters of the type which I have mentioned. None of those provisions are necessary if, as appears to be the case in the present Act, the jurisdiction of the Court of Disputed Returns is vested in the Supreme Court. In those circumstances, the necessary procedural matters are to be found in the Supreme Court Act 1935, the Supreme Court Rules and the common law. It would appear that, because Parliament considered that it was vesting the jurisdiction in the Supreme Court, it was not necessary to provide for those procedural matters in the present Act.

Section 73 of the Australian Constitution provides that the High Court has jurisdiction to hear and determine appeals "from all judgments, decrees, orders and sentences ....... of the Supreme Court of any State......". In Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297 an electoral petition disputing the validity of an election in Western Australia had been heard and determined under the Electoral Act 1904 (WA) by the Supreme Court. It was held that a decision of the Supreme Court of Western Australia, in the exercise of its jurisdiction under the Electoral Act 1904 (WA), could not be the subject of an appeal to the High Court under s 73 of the Constitution.

Section 159 of the Electoral Act 1904 (WA) provided:

"159. The validity of any election or return may be disputed by a petition addressed to the Supreme Court, and not otherwise, and the Supreme Court shall have jurisdiction to hear and determine the same."

Section 163 of that Act provided that the Court should be constituted by a Judge sitting in open Court, and that its powers included:

"(1) To declare that any person who was returned as elected was not duly elected;

(2) To declare any candidate duly elected who was not returned as elected;

(3) To declare any election absolutely void;

(4) To dismiss or uphold any petition, in whole or in party;

(5) To award costs."

Section 165 of the Act provided that the Court was to be "guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities", and s 167 provided that all decisions of the Court were to be "final and conclusive without appeal and shall not be questioned in any way".

The Act further provided (in s 170) that costs were recoverable "as if the order of the Court were a judgment of the Supreme Court". Section 171 provided what as to happen if the Court made any of the declarations referred to in s 163.

Section 172 conferred on Judges of the Supreme Court or any two of them a power to make rules of court for carrying that part of the Act into effect.

The conferral of jurisdiction on the Western Australian Supreme Court was therefore in terms not dissimilar from those provided in the present South Australian Act, although there were some significant differences.

The headnote to the report of Holmes v Angwin suggests that the reasons for the decision to dismiss the purported appeal were that, in exercising its jurisdiction under the Electoral Act 1904, the Supreme Court was not the "Supreme Court" within the meaning of s 73 of the Constitution, but rather that it was sitting as a special tribunal consisting of a Judge of the Supreme Court. Whilst that may well represent part of the reasoning of Griffith CJ, I do not believe it is an accurate summary of the reasons of Barton and Higgins JJ. It is therefore necessary to examine the reasons of each of the members of the Court.

Griffith CJ, at 303, identified the question in the case as being whether the decision appealed from was not a decision of the Supreme Court in the sense in which that term is used in the Constitution. At 304 he said:

"It is necessary, therefore, to see what is the real effect and meaning of what the legislature has done in the present case. Did it merely create a new civil right to be administered by the Supreme Court with the ordinary incidents of litigation, including the consequent right of appeal, or did it in substance create a new and separate tribunal, consisting of a Judge of the Supreme Court as a persona designata?"

He proceeded to analyse the statutory provisions and continued, at 306 - 307:

"Upon consideration of the whole of these sections it appears to me that the inquiry directed to be held by a Judge of the Supreme Court is an inquiry merely incidental to and for the purpose of the determination of the right of a particular person to sit in the House of Parliament. It is an inquiry and determination for the information of that House, and effect is given to it by the House as it was before, but not until after it is informed of the result of the inquiry made by the Judge. I think, therefore, that, although sec. 159 says that the Supreme Court shall have jurisdiction, yet in substance it is not the Supreme Court, in the sense in which that term is used in the Constitution, that has jurisdiction, but that the real tribunal is a new tribunal consisting of a Judge of the Supreme Court as a persona designata, to whose arbitrament the necessary questions of fact are to be referred for the assistance of the House of Parliament. For these reasons I am of opinion that this decision is not a decision of the Supreme Court within the meaning of sec. 73 of the Constitution."

In my opinion, that conclusion rather strains the language of the Western Australian Act. However, Griffith CJ was the only member of the Court to reach that conclusion. The reasons of the other two Judges were somewhat different. Barton J pointed out (at 307-308) that the validity of elections and kindred questions were originally the exclusive privilege of the Parliament. He judged that Parliament, by vesting that jurisdiction in a Court, was doing so not as matters of litigation but as merely requiring findings of fact to be made by "men of experience and known fairness of mind" (at 308). He continued, at 308:

"Thus the Act of this State makes provisions as to the effect to be given to the decision of the Court, but it does not make the decision of the Court enforceable in the ordinary way as a judgment. There is a provision in sec. 170 which enables such action to be taken with regard to costs - that is, for the purpose of allowing civil execution for costs to issue if it becomes necessary - but there is a striking difference between that section and the remaining sections of the Act with respect to the enforcement of the determination of the Court on the merits. So far as the direction of the Statute does not ensure enforcement independently of the Court, then it remains for the Houses to enforce the determination themselves."

He considered that the framers of the Constitution did not intend that there should be appeals to the High Court from such decisions. At 309 he expressed the view that the appellant must be able to bring himself within the words "all judgments, decrees, orders and sentences", and that those words did not encompass a determination made under the Electoral Act. He continued, at 309:

"The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants. It is that domestic jurisdiction which in this State has been transferred first to the Court of Disputed Returns, afterwards to the Supreme Court, but in the latter case with the retention of provisions which of themselves show that the character of the tribunal and the method of procedure are such as did not characterise the ordinary tribunals of justice. ............ If then, as my opinion is, this is not the creation of a new jurisdiction but the transfer of an incident to the legislative and deliberative power to the Court for special purposes - the legislature being capable of course of the resumption of the jurisdiction at any moment - then it seems to me that there is a clear line drawn between the decision of the Supreme Court upon an election petition and that judgment, decree, order, or sentence, which is the object of the provision in the Constitution."

It is significant that Barton J did not base any of his reasoning on the fact that the person exercising jurisdiction under the Electoral Act was persona designata. Rather, it was the nature of the decision which did not render it an appealable decision under s 73 of the Constitution.

The reasoning of Higgins J was similar. He too considered that the power was originally a legislative function recently conferred upon Courts. He noted, at 310:

"This decision of the Judge of the Supreme Court is not subject, like ordinary judgments of the Supreme Court, to an appeal to the Full Court. It is not a judgment of the Supreme Court as to person or as to property; if it were, there would be no need for the special provisions which are contained in Part XV of the Electoral Act 1904, giving power to award costs, &c. If it were an ordinary judgment of the Supreme Court, that power would follow without express words; but, according to sec. 170, the costs awarded are to be recoverable as if the order of the Court were a judgment of the Supreme Court. From the very form of the words it is clear that it is not a judgment of the Supreme Court, but that these costs are to be recoverable as if it were a judgment of the Supreme Court."

He likened the power of the Court to a power to inquire and report, with the implementation of the report being committed to the Parliament. In that regard he relied on s 171 of the Western Australian Act which provided how effect was to be given to any decision of the Court in the case of declarations made under s 163. As in the case of Barton J, any suggestion that the jurisdiction was vested in a designated person did not form part of Higgins J's reasoning.

Thus, it can be seen that the majority of the High Court decided that there was no appeal to the High Court under s 73 of the Constitution on grounds not to do with the constitution of the Court, but with the nature and quality of its determination. Whether those reasons would withstand scrutiny in the light of subsequent decisions on the nature of judicial power generally or on the nature of the judicial power of the Commonwealth referred to in Chapter III of the Constitution is beside the point. For present purposes, the reasons of the majority are important for what they did not decide.

The validity of an appeal to the High Court was raised again in Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313. In that case there had been a decision of an Election Tribunal under the Elections Act 1915 (Qld). The Election Tribunal was constituted by a Judge of the Supreme Court in circumstances where the Judge was plainly acting as persona designata. The statute provided for an appeal to the Full Court of the Supreme Court of Queensland on a question of law. The question at issue was whether a further appeal from the Full Court of the Supreme Court to the High Court was competent.

Latham CJ agreed (at 319) that the Elections Tribunal was not the Supreme Court of Queensland and was not exercising any function of the Supreme Court. By way of incidental comment only he said, at 319:

"He (the judge of the Supreme Court) is, it is contended, a persona designata, as was held in the case of Holmes v Angwin". (Emphasis added).

He considered that the decision of the Full Court was prima facie a judgment of the Full Court in the exercise of a judicial function by dealing with a question of law between parties. There was no right of appeal, based on other grounds, but he would have granted special leave to appeal.

Rich J did not address the question. He merely decided that there was no right of appeal on other grounds, and that it was not an appropriate case for special leave.

Starke J (at 323) considered that Holmes v Angwin was decisive that a determination of the Elections Tribunal "is not a judgment, decree, order or sentence appealable to this court within the meaning of the Constitution, sec. 73". By expressing himself in that way, and in what is quoted below, he was clearly adopting the reasoning of Barton and Higgins JJ in Holmes v Angwin as to why there was no appeal in that case and why he considered that no appeal lay in Webb v Hanlon. He concluded that there could be no appeal to the High Court, even by special leave, saying at 324:

"It is not the form that should be examined but the substance of the matter, and the truth is that the whole inquiry, whether before the Elections Tribunal or the Full Court, is an inquiry merely incidental to, and for the purposes of determining, the right of some person to sit in Parliament: See Holmes v Angwin (at 306).

The provisions are all part of the electoral machinery and have nothing to do with the ordinary rights of parties who are litigants: See Holmes v Angwin (at 309). They give jurisdiction to an independent and impartial tribunal to determine questions that once were determined by the legislature itself. And Holmes v Angwin is, in my mind, decisive that the legislature can designate its courts or judiciary for this special purpose without involving the consequence that its determinations are subject to the review of this court."

Dixon J (at 328) considered that Holmes v Angwin established that the decision of the Elections Tribunal "is not an order of the Supreme Court from which an appeal is given by s 73 of the Constitution". He did not delve further into the reasoning, but considered that, as the Supreme Court had a statutory jurisdiction to correct, by judicial order, the decisions upon questions of law of the Elections Tribunal, "presumably" he was not prevented by Holmes v Angwin from entertaining an appeal from the Full Court. Nevertheless, he refused to grant special leave.

In relation to the Elections Tribunal, Evatt J (at 330) considered that no appeal would lie from the Tribunal to the High Court, basing his decision largely on the fact that the statutory provisions in both this case and Holmes v Angwin emphasise the administrative as distinct from the judicial character of the Elections Tribunal. Nevertheless, by entertaining an appeal on the question of law the Full Court was performing a judicial function, and there was nothing to preclude an appeal from the High Court from a decision of the Full Court of the Supreme Court hearing such an appeal.

McTiernan J (at 334 - 335) cited a number of UK authorities as to the unique nature of the jurisdiction of an electoral tribunal and cited with approval the judgments of Barton and Higgins JJ in Holmes v Angwin as to the difference between a decision on an election petition and a judgment, decree, order or sentence which is the object of the provisions of s 73 of the Constitution. He concluded that "the juridical character of the decision of the Full Court must, no less than the decision of the primary tribunal, be determined by the subject matter of the proceeding" (at 335). For that reason he considered that the appeal to the High Court was incompetent.

Thus is can be seen that no member of the Court in Webb v Hanlon who addressed the question, except Latham CJ, decided that the Elections Tribunal order was not appealable because the jurisdiction was exercised by persona designata. More importantly, no member of the Court who addressed the question, other than Latham CJ, and then only incidentally, sought to justify the decision in Holmes v Angwin by virtue of a suggestion that the jurisdiction of the Court was exercised by persona designata.

Following the decision of a single Judge of this Court under the present South Australian Act in King v Electoral Commissioner [1998] SASC 7071; (1998) 72 SASR 172, there was an application for leave to appeal to the High Court. In refusing leave on 12 February 1999, Kirby J relied on Holmes v Angwin. In an ex tempore decision Kirby J said:

"In Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297 this Court held that no appeal lay to it from a Court of Disputed Returns established under analogous legislation in Western Australia. That decision has stood for 90 years and through countless State elections in which disputes over returns have arisen."

With respect, his Honour was correct in applying Holmes v Angwin in holding that there could be no appeal. The circumstances are almost indistinguishable. Nevertheless, it does not follow that his Honour was necessarily endorsing the view of Griffith CJ that the decision was not a decision of the Supreme Court. Indeed, Kirby J acknowledged in his short reasons that the Court of Disputed Returns "was constituted by the Supreme Court of South Australia sitting as a Court of Disputed Returns".

Finally, in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 a question arose as to whether the High Court was exercising judicial power as a Court of Disputed Returns under the Commonwealth Electoral Act 1918. That Act conferred jurisdiction on the High Court in the following terms:

"354 The Court of Disputed Returns

(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Federal Court of Australia or to the Supreme Court of the State or Territory in which the election was held or return made.

......

(6) The jurisdiction conferred by this section may be exercised by a single Justice or Judge."

The Act contained similar powers to that contained in the present South Australian Act. In their joint judgment, Gleeson CJ, Gummow and Hayne JJ said, at 480 - 481:

"Counsel for Mrs Hill relied upon what was said to be involved in the reasoning in the judgments in Holmes v Angwin. Section 354, like its predecessor, s 193 in the 1902 Act, differs from the provisions of the Electoral Act 1904 (WA) which were considered in Holmes v Angwin. The Western Australian statute was construed as, in substance, creating a new and separate tribunal consisting of a judge of the Supreme Court of Western Australia as a persona designata. On the other hand, s 354(1) fixes upon 'the High Court' and specifies two matters in respect of the High Court. First, the High Court "shall be the Court of Disputed Returns" and secondly, it 'shall have jurisdiction' to try or otherwise deal with the petition. ..........

In the oral argument, no submission for Mrs Hill to the effect that Div 1 selects the Justices of this Court as personae designata was pressed. As already indicated, any such submission would not be well founded."

As I have said, it was only Griffith CJ who considered that the Western Australian Act in Holmes v Angwin created a separate tribunal consisting of a Judge of the Supreme Court as persona designata. However, leaving that aside, I can see no relevant distinction between the provisions of the Commonwealth Electoral Act 1918 (Cth) which vest jurisdiction in the High Court and those of the present South Australian Electoral Act which vest jurisdiction in the Supreme Court. The combined effect of s 102 and s 103 of the South Australian Act is to do precisely what Gleeson CJ, Gummow and Hayne JJ said constituted a conferral of jurisdiction on the existing Court.

Gaudron J at 519 drew a similar distinction from Holmes v Angwin. McHugh, Kirby and Callinan JJ did not find it necessary to address the question.

I conclude that such authority as there is does not require a construction of the South Australian Electoral Act that says that the jurisdiction of the Court of Disputed Returns is exercised by a designated person. Rather, the preponderance of authority requires that it be treated as a conferral of jurisdiction on the Supreme Court. I would answer question 1:

"The jurisdiction conferred pursuant to s 103(2) of the Act is exercisable by the Supreme Court".

Question 2

Question 2 raises questions as to the nature and extent of the grounds on which an election can be declared void by the Court. There is no section in the Act which purports to declare expressly all the grounds on which an election may be declared void. Nevertheless, it is apparent from s 107(3) and s 107(4) that Parliament contemplated at least three possible grounds. Section 107(3) and s 107(4) provide:

"(3) An election will not be declared void on the ground of -

(a) a defect in a roll or certified list of electors; or

(b) an irregularity in, or affecting, the conduct of the election,

unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity.

(4) An election may be declared void on the ground of the defamation of a candidate but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation."

Section 107(4) does specify a ground on which the election may be declared void. Section 107(3) does not. It assumes the existence of the two grounds mentioned in paras (a) and (b).

Whether the grounds in Section 107 are exclusive

Mr Kourakis QC, counsel for Mr Lewis, argues that these subsections express exclusively the grounds on which an election may be declared void by the Court.

The three grounds mentioned in s 107 are grounds which may in some way affect the outcome of the election, in the sense of affecting the number of persons who are recorded as giving their first and other preferences for particular candidates. They say nothing expressly about making an order based upon a candidate being disqualified for election. Necessary qualifications for election are expressed in s 52 of the Act (the candidate must be an "elector" as defined). There are disqualifications from candidature or from election contained in s 133 of the Act and in s 43A(1), s 44, s 45(2) and s 47 of the Constitution Act 1934. Non-compliance with any of these sections might well require an order to be made under s 107(1).

Does that mean that the grounds stated in s 107 cannot be exclusive? In my opinion it does not, because if there exists a disqualification from candidature or from being declared elected, there is an "irregularity in or affecting the conduct of the election" (s 107(3)(b)) by reason of the fact that if the candidate was not qualified, the candidate's name should not have appeared on the ballot paper, or the candidate should not have been declared elected. Similar reasoning was adopted in analogous situation in Sue v Hill (supra) by Gleeson CJ, Gummow and Hayne JJ at 474 - 475, and by Gaudron J at 512 - 513.

Are there other reasons for saying that the grounds expressed in s 107(3) and s 107(4) are not exclusive? Before answering that question it is necessary to recount some relevant history which casts some light on the presence and form of s 107(4) and on the effect of s 107(3).

Section 177 of the predecessor to the Act, the Electoral Act 1929, conferred on the Court of Disputed Returns similar powers to those presently contained in s 107(1) of the Act. Section 177(2) and s 177(3) provided:

"(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected or to declare any election void, may be exercised on the ground that illegal practices were committed in connection with the election."

"Illegal practices" were defined in s 151. They included bribery, defined in s 146 and s 147, and undue influence, also defined in s 148 and s 149. The latter definition included defamation of a candidate, not generally regarded at common law as being included in undue influence. The definition of "illegal practices" also included a limited number of practices in relation to conduct on and within eight hours of the commencement of polling day, and conduct relating to the authorisation of advertisements. All illegal practices were offences. There were other electoral offences prescribed in s 154.

Section 182 relevantly provided:

"(1) If the Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate shall be declared void.

(2) ........

(3) The Court shall not declare that any person returned as elected was not duly elected, or declare any election void -

(a) on the ground of an illegal practice committed by any person other than the candidate and without his knowledge or authority; or

(b) on the ground of any illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected thereby, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

It is to be noted that there were provisions in s 177 which conferred jurisdiction on the Court and which specified the grounds on which its powers could be exercised, including grounds on which it could declare an election void. There were also provisions in s 182 which qualified the exercise of those powers. Those provisions differentiated between conduct committed by a candidate and conduct committed by others. Section 182(3) bore a similar structure to the present s 107(3).

In Crafter v Webster (1980) 23 SASR 321 an election was declared void by Mitchell J, sitting as a Court of Disputed Returns, because of certain voting irregularities in respect of a number of votes substantially in excess of the majority of votes of the candidate declared elected. In doing so, her Honour applied what she held to be relevant common law principles, and that the contravention, in the circumstances, invalidated the entire election. In addition, Mitchell J had found that the losing candidate had been defamed in a series of advertisements in circumstances which were found to constitute undue influence, and therefore an illegal practice. Her Honour found, also applying common law principles, that the result of the election was likely to have been affected thereby. The election was therefore also declared void on that ground.

Following the decision in Crafter v Webster, the 1929 Act was repealed and replaced with the present Act. A number of changes were relevantly made. Section 177(2) was not re-enacted, and was not replaced by any equivalent provision. The notion of "illegal practices" was not repeated in the Act, and therefore s 177(3) of the 1929 Act was not re-enacted. However, Parliament decided that, whatever grounds might be available, it would retain the ground of defamation of a candidate. But no doubt in the light of the experience of Crafter v Webster, Parliament qualified what Mitchell J had held was the relevant common law by providing that the Court, in the case of defamation of a candidate, had to be satisfied, on the balance of probabilities, that the result of the election was affected by the defamation, and not merely that it was likely to be affected, as Mitchell J had held. That would appear to explain at least the presence of s 107(4).

Section 177(2) and (3) of the 1929 Act had stated the grounds on which an election could be declared void. It is significant that they were not replaced by any equivalent section in the present Act, other than s 107(4). The only reference besides s 107(4) to any grounds for declaring an election void is indirectly in s 107(3). That subsection retains the structure of the former s 182(3) which qualified the operation of s 177(3). In other words, the drafting technique adopted in s 107(3) had been used in s 182(3) of the 1929 Act, but not for the purpose of conferring jurisdiction on the Court.

The strongest implication to be drawn from a provision in the form of s 107(3) is that it qualifies some wider power which the Court has, and which, in the 1929 Act was expressed in s 177(3). Therefore, the implication to be drawn from the requirement that an election can only be declared void on the grounds specified in s 107(3) if the Court is satisfied on the balance on probabilities that the result of the election was affected by the defect or irregularity is that there may be other grounds available which do not require the Court to be so satisfied.

Furthermore, a provision expressed in the form of s 107(3) is not a conventional way of specifying the jurisdiction of a Court, particularly given the manner in which that jurisdiction had been specified in the 1929 Act.

There was no dispute between the parties, and I agree, that the phrase "irregularity in, or affecting, the conduct of the election" in s 107(3) can only relate to an irregularity which affects the election process itself as specified in the Act. It cannot include conduct which goes to the decision of an elector as to how the vote will be cast. If that is so, Mr Kourakis' contention (that s 107(3) and s 107(4) state exclusively the grounds on which an election may be declared void) would exclude some but not all forms of bribery, and would exclude most forms of undue influence as grounds for declaring an election void. These have traditionally been recognised, when attributed to a successful candidate, as grounds on which an election can be declared void. It would be strange if, as it were by a side wind, Parliament had excluded such significant grounds altogether.

Mr Kourakis QC argues that such grounds are still covered by s 107(3), and all that has changed is the onus of proof as to the effect of the bribery or undue influence. He says that there is an implication to be drawn from Part 9 of the Act, relating to entitlement to vote and voting procedures, that all elections must be free, and that widespread bribery or undue influence would not render them free. The conduct of the election would thereby be affected. I think Mr Kourakis reads too much into Part 9 of the Act. There is certainly an implication, if not an express requirement, that every eligible voter is to be given the opportunity, and is even required (s 85), to cast a vote in manner prescribed by the Act. But Part 9 contains no express provision and requires no inference to be drawn about how electors are to be free or not free to make up their minds about who they will vote for. If Mr Kourakis' submissions were correct, there would have been no necessity to include s 107(4) as a separate ground. I therefore reject the submission that all serious grounds are covered by s 107(3).

However, Mr Kourakis relies on Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627 in support of the submission that s 107(3) does exhaustively express the grounds on which an election can be declared void. The High Court is constituted a Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth). Section 360(2) and s 360(3) are in identical form to s 177(2) and s 177(3) of the 1929 South Australian Act which, as I have pointed out, have no counterpart in the present South Australian Act. That case involved, in the view of Gaudron J, the interpretation of s 362 of the Commonwealth Electoral Act 1918 (Cth). That section relevantly provides:

"(1) If the Court of Disputed Returns finds that a successful candidate has committed or attempted to commit bribery or undue influence, the election of the candidate shall be declared void.

....

(3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void:

(a) on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or

(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

"Illegal practice" is defined in s 352(1) of the Act. In Hudson v Lee Gaudron J held that s 362 of the Commonwealth Act provided exhaustively as to the general grounds upon which an election might be invalidated or held void. Her Honour gave these reasons, at 631:

"First, the Act makes detailed and comprehensive provision as to the conduct of elections. Second, it allows for elections and returns to be disputed on the ground of 'illegal practice' which is defined to mean 'a contravention of [the] Act or the regulations' (which includes bribery or corruption as defined in the Act, and undue influence, to the extent that s 327 of the Act rather than s 28 of the Crimes Act is involved). The detail of the Act's provisions and the width of the definition of 'illegal practice', standing alone, are powerful indications of the exhaustive nature of s 362. In that context, the third matter is, in my view, conclusive, that matter being that s 362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding with respect to bribery or corruption, undue influence and illegal practice. It would be incongruous if the Court's powers were entirely at large with respect to matters extraneous to the Act."

The effect of that decision was affirmed in Sue v Hill (supra), by Gleeson CJ, Gummow and Hayne JJ at 474 and by Gaudron J at 511. See also McHugh J, with whom Callinan J agreed, at 541 and especially at 548[224].

While the structure of s 362(3) of the Commonwealth Act is not unlike the structure of s 107(3) of the South Australian Act, there are substantial differences between the two Acts which distinguish Hudson v Lee from the present case.

Of some significance is that the South Australian Act now has no counterpart of s 360(3) of the Commonwealth Act. Further important differences emerge from the relevant features of the Commonwealth Act identified by Gaudron J in the passage I have quoted.

In relation to the first point her Honour mentioned, it is true that the South Australian Act also makes detailed and comprehensive provision as to the conduct of elections. However, for present purposes, that is where the similarity ends. As has already been pointed out, unlike the Commonwealth Act, there is now no concept of "illegal practice" maintained in the South Australian Act. It was the width and comprehensiveness of the definition of that phrase in the Commonwealth Act which so strongly influenced Gaudron J to conclude that s 362 was exhaustive. That was her Honour's second point. The third point was that in the context of the width of that definition, s 362 provided for the manner in which the power was to be exercised, depending on the nature of the finding by the Court. That "conclusive" feature is absent from the South Australian Act.

In my opinion there is nothing in s 107(3) and s 107(4) to displace the inference to be drawn from those subsections that there are other unstated grounds which will justify a Court of Disputed Returns declaring an election void. It follows that those subsections are not exhaustive in stating the practices or grounds on which a petition may properly be founded.

Breach of norms contained in the Act

What then are the limitations (if any) of the Court declaring an election invalid? It would be incongruous if the Court's powers were entirely at large. Mr Whitington QC, counsel for the petitioner, draws attention to the fact that what is in issue is the "validity of (the) election" (s 102), and the necessity for the Court to find a person "not to have been duly elected" (s 107(1)(a)). He argues that the election is the creature of the Act. The Act specifies a number of requirements that must be complied with in the nomination and election process (Parts 7 - 11). It creates a number of offences in connection with elections, including bribery (s 109), undue influence (s 110), offences in relation to electoral advertisements (s 112 - s 116) and offences related to the conduct of the election (s 117 - s 130). All these provisions, it is submitted, create certain norms of conduct, breach of which will be grounds for declaring an election void.

However, if the contravention relates only to the procedure of the election - the process of electing rather than the decision for whom to vote - then s 107(3) requires proof that the result of the election was affected by the breach before making the declaration of invalidity. The requirement of s 106 to be guided by good conscience and the substantial merits of each case empowers the Court to make a proper determination of the appropriate order depending on the nature of the conduct and effect on the election. It is argued that that does not preclude recourse to common law notions to determine what good conscience and the substantial merits require in a particular case.

I can find no warrant for Mr Whitington's approach in the Act or in any principles of common law, other than a dictum of Ambrose J in Tanti v Davies (No. 3) [1996] Qd R 602, to which I shall return. Besides, it provides little guidance as to what sort of conduct will warrant declaring an election void, and in what circumstances. It gives greater emphasis to the conduct itself rather than its effect on the election. It would mean that Parliament was leaving it entirely to the Court to decide what constituted a valid election (s 102) or how a person was to be or not to be "duly elected" (s 107(1)), thus being required to legislate for itself.

It would mean that the validity of an election could be questioned for any breach of the Act, the Court having to decide without any guiding criteria whether the breach was sufficient to justify a declaration of invalidity, except where the breach came within the circumstances described in s 107(3) or s 107(4). For many breaches of the Act it would not be necessary to prove that the result of the election was affected by the breach. However, if the breach happened to constitute the defamation of a candidate or an irregularity in or affecting the conduct of the election, it would. This could lead to quite anomalous results hardly intended by Parliament.

For all of these reasons I would therefore reject Mr Whitington's primary argument.

A common law of elections?

The existence and applicability of a common law of elections (as opposed to the common law of Parliament) was affirmed by the majority in Chanter v Blackwood [1904] HCA 2; (1904) 1 CLR 39 at 58, 63 - 65. There also seems to be no doubt that a majority of the High Court in Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 considered that there is a common law of elections and that, subject to any statutory qualification, it applies in Australia: see Griffith CJ at 587 - 588, 591 - 593; Barton J at 605 - 610; Isaacs J, with whom Gavan Duffy and Rich JJ concurred, at 616 - 624. In The Ithaca Election Petition. Webb v Hanlon [1939] St R Qd 90, Blair CJ at 139 considered that the common law of elections applied in Queensland, but not the common law of Parliament reflected in s 26 Parliamentary Elections Act 1868 (UK) because that was not enacted in Queensland. R J Douglas J expressed a similar view at 147. The common law of elections was recognised as being applicable by Mitchell J in Crafter v Webster (supra) at 329 - 330, 356 and by Prior J in King v Electoral Commissioner (supra) at 180 - 181.

However, the position has also been doubted in Queensland: The Flinders Election Petition. Forde v Lonergan [1958] Qd R 324. That case concerned a proven non-compliance with the Elections Acts 1915-1952 (Qld) in respect of the rejection of sixteen votes by the returning officer which, if counted, could possibly have made a difference to the result. Philp J referred to the statement of the common law by Lord Coleridge in Woodward v Sarsons [1875] LR 10 CP 733 at 743 but pointed out (at 330) that the relevant UK Act imposed on the Court in that case the duty of applying not the principles of any so called common law of elections but the principles "being observed in the case of election petitions under the provisions of the Parliamentary Elections Act 1868". He considered that by virtue of s 26 of that Act, the Court in dealing with the petition in relation to a parliamentary election was bound to observe the "principles, practice and rules on which the Committees of the House of Commons have heretofore acted.....". By virtue of the New South Wales and Queensland legislative history, he considered (at 332) that that was not so in Queensland. The Court was to be guided by the "real justice" principle, similar to that expressed in s 106 of the South Australian Act, which negated the strict application of the common law. Nevertheless, he applied part of what Lord Coleridge had said in Woodward v Sarsons not because he considered that it was part of the common law but because "it comports with my opinion as to what is real justice in the present circumstances".

I have some difficulty with the reasoning of Philp J in that case. In the first place, his Honour was heavily influenced by the provisions in s 26 of the Parliamentary Elections Act 1868 (UK) which he interpreted as binding English and Irish Courts to observe the "principles practice and rules on which the Committees of the House of Commons have heretofore acted", rather than any common law principles. Section 5 of the UK Act vested jurisdiction in the Court of Common Pleas to hear a petition complaining of "an undue Return or undue Election of a Member to serve in Parliament for a County or Borough". A number of provisions followed concerning the trial of petitions, how the Court was to be constituted and what was to happen upon the Court making a report. Section 25 provided that certain of the Judges could make rules and orders "for the effectual Execution of this Act, and of the Intention and Object thereof, and the Regulation of the Practice, Procedure and Costs of Election Petitions, and the Trial thereof, and the certifying and reporting thereon". Section 26 provided:

"Until Rules of Court have been made in pursuance of this Act, and so far as such Rules do not extend, the Principles, Practice, and Rules on which Committees of the House of Commons have heretofore acted in dealing with Election Petitions shall be observed so far as may be by the Court and Judge in the Case of Election Petitions under this Act."

Not only was this provision on which Philp J relied an interim provision pending rules made by the Judges, but it would appear that such rules were predominantly concerned with practice and procedure.

Secondly, although reliance was placed on earlier New South Wales legislation incorporating what his Honour described as the "real justice" principle, which had been taken up in the first Elections Tribunal Act 1886 passed in Queensland, that would not appear to exclude the operation of the common law applied by the Court of Common Pleas in the UK when jurisdiction to hear election petitions was first conferred upon that Court in 1868.

Thirdly, Philp J made no reference to the decision of the High Court in Bridge v Bowen (supra) which had been cited in argument but which, as I have already pointed out, contained extensive reference to and reliance upon the common law.

Fourthly, he discarded the decision of the majority in The Ithaca Election Petition Case (supra) as being based on the same misunderstanding of Woodward v Sarsons. However in doing so I consider that he failed to distinguish between the common law of elections and the common law of Parliament.

Mitchell J in Crafter v Webster (supra) at 330 was not moved by the reasoning of Philp J in that case.

The applicability of any common law principles in Australia has also been doubted by way of obiter dictum by McHugh J in Sue v Hill (supra) at 551 - 553. It must be remembered, however, that the High Court in that case was dealing with a disputed qualification for election, as appears from the many references made by McHugh J to the Parliamentary Elections Act 1868 (UK) at 542 - 546. It must also be remembered that he was speaking of the provisions of the Commonwealth Electoral Act 1918 (Cth), which he acknowledged, as Gaudron J had concluded in Hudson v Lee (supra) at 631, contained a code of the grounds on which an election could be declared void under that Act - a significant difference from the provisions of the present South Australian Act. See McHugh J at 553 [235].

McHugh J also relied to some extent at 549 [227] on the decision of Philp J in the Flinders Election Petition Case, the foundations for which, in my opinion, are not as straightforward as stated by Philp J or by McHugh J. While, as McHugh J points out at 551 - 553, there may or may not be a common law of elections in the sense of providing an individual remedy for someone who, for example, claims to have been denied the right to vote, I am satisfied that, in the circumstances applying under the current South Australian Electoral Act, there is a common law of elections, and that it is to be applied in this State, especially where the Act is silent or clearly not comprehensive in the grounds on which an election may be declared void. There remains for consideration the effect of s 106 of the Act. I will return to that after identifying the effect of the common law.

The common law of elections

The starting point for identifying the relevant common law principle is recognised in many cases as being the judgment of the Court of Common Pleas (Coleridge LCJ, Brett, Archibald and Denman JJ) in Woodward v Sarsons (supra). The Court said, at 743 - 744:

"(W)e are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there is no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. As we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament." (Emphasis in original).

The Court then cited a number of cases which justified that proposition.

It is to be noted that this first limb only enabled elections to be avoided where a majority of electors was or may have been prevented from voting by general corruption or intimidation or other mishaps of a similar nature.

The second limb was described by the Court as follows, at 744 - 745:

"As to the second, i.e. that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under those laws: it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under some other method. For instance, if, during the time of the old laws, with the consent of a whole constituency, a candidate had been selected by tossing up a coin, or by the result of a horse-race, it might well have been said that the electors had exercised their free will, but it should have been held that they had exercised it under a law of their own invention, and not under the existing election laws, which prescribed an election by voting. So now, when the election is to be an election by ballot, if, either wilfully or erroneously, a whole constituency were to vote, but not by ballot at all, the election would be a free exercise of their will, but it would not be an election by ballot, and therefore not an election under the existing election law. But, if in the opinion of the tribunal the election was substantially an election by ballot, then no mistakes or misconduct, however great, in the use of the machinery of the Ballot Act, could justify the tribunal in declaring the election void by the common law of Parliament." (Emphasis in original).

Authorities were also cited for that proposition. That second limb set a particularly high hurdle to overcome if an election were to be declared void on procedural grounds or misconduct going to the conduct of the election itself.

The second limb was further qualified in The West Division of the Borough of Islington (1901) 5 O'M & H 120. Kennedy and Darling JJ said, at 125:

"Our opinion is that an election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, where the Court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, i.e., the success of the one candidate over the other, was not, and could not have been, affected by those transgressions. If, on the other hand, the transgressions of the law by the officials being admitted, the Court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court is then bound to declare the election void." (Emphasis in original).

At 130 the Court also held in relation to the second limb that the burden of proving that an infraction did not and could not affect the result of the election rests on the respondent. See also Gribbin v Kirker 7 IR CL 30.

Reference to some of the cases referred to by the Court in Woodward v Sarsons is instructive. In Borough of Hackney (1874) 2 O'M & H 77 the Court was satisfied that out of 41,000 electors, 5,000 were unable to vote and others were prevented or might reasonably be supposed to have been prevented from voting by virtue of certain polling stations being either closed all day or only being open for part of the day. The successful candidate had a smaller majority than that. In those circumstances it was held that there was no real election by the majority having been unable properly to record their votes. However, in Borough of Bolton (1874) 2 O'M & H 138 it was established that the personation agents for the respondent had been furnished with a register of voters with tickets attached opposite the names of each voter. As soon as a voter had voted the agent tore off the ticket and put it in his pocket, subsequently conveying it to someone outside the polling station. By that means persons outside, whilst the poll was in progress, were able to find out who had voted. It was alleged that this was a violation of the provisions of the Ballot Act 1872 which provided for secret voting. Mellor J said, at 142 - 143:

"I am certain that those persons who placed these tickets upon the register which were seen by the Mayor to be stealthily put into the pocket of the personation agent and conveyed by him manifestly to some persons outside, committed a violation of the statutory declaration which they had made, and committed an offence within the meaning of the provisions of the Ballot Act, thereby rendering themselves liable to serious punishment. But that is the only protection which the Legislature has provided. They undoubtedly thought that that would be abundantly sufficient to secure the secrecy of the election. If it has failed to do so, it is because it is not possible for any machinery to be invented which shall secure perfectly the object which the Legislature had in view. ...... The punishment is specified by the Legislature; it must be found within the four corners of the Act of Parliament, and I have no power, neither has the common law any power, to supplement any additional penalty upon either the persons who transgressed the law or the persons for whose sake or in whose favour such an act may have been done. Upon that part of the case I entirely concur with what was said by my brother Martin in his evidence before the Select Committee upon Elections (June 29, 1869). When he was describing what the result would be of a breach of the law, he was asked by Sir George Grey, 'Do you mean that if it was proved that a candidate had committed acts which were illegal and which subjected him to penalties (it is as 'a candidate' there, and I agree that we must read it in the same light in this case as if it had been a candidate, assuming it was one of those things which came within the general law of agency) the judge could take no notice of it, unless it was an act which vacates the seat?' - and in answer my brother Martin said: 'I think certainly that the mere doing of an act which the Act means to be subject to a penalty but does not declare to affect the seat, could not possibly affect the seat.' "

That answer of Martin B was specifically affirmed by the Court in Woodward v Sarsons (supra) at 745, The West Division of the Borough of Islington (supra) at 125 - 126 and in Bridge v Bowen (supra) by Isaacs J, with whom Gavan Duffy and Rich JJ agreed, at 614.

It is to Bridge v Bowen that I must now turn. That involved an election under the Sydney Corporation Act 1902 (NSW). Jurisdiction was conferred on the Supreme Court of New South Wales to make an order ousting a person from office if it appeared to the Court that the person was "unduly elected". Section 40 of the Act required an elector to declare before voting that he was entitled to vote in respect of the particular name appearing on the Roll, and that the person could only be asked whether he was the person whose name appeared on the Roll. The Act rendered making a false declaration a misdemeanour. Section 40(6) provided:

"Provided always that no person shall be excluded from voting at an election unless it appears to the presiding officer that the person claiming to vote is not the person whose name appears on the roll, or that he has previously voted at the same election within the same ward, or otherwise contrary to this Act."

Personation at an election was also a separate offence under s 54 of the Act. Votes were cast by personators in a number which exceeded the number of votes by which the declared winning candidate won the election. That was sufficient possibly to affect the result, but whether it did or not was not and could not be known. There was no misconduct by electoral officials. All relevant declarations had been taken and questions asked, and all had been properly acted upon. The High Court (Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ; Griffith CJ and Barton J dissenting) held that the candidate was not "unduly elected". The case raised for consideration the existence and effect of the common law of elections. Griffith CJ (dissenting) said, at 587 - 588:

"The term 'election' in itself connotes choice by a majority of competent electors. The first duty of every representative body is to verify the title of the persons claiming to be members of it. This is recognized in every civilized country that has representative assemblies. In the British Parliament, and for a long time in the Australian Colonial Parliaments, the duty was delegated to committees, called Committees of Elections and Qualifications, but has of recent years been entrusted to specially constituted tribunals. The principles upon which these tribunals (whether the collective body, the election committee, or the elections tribunal) are to act in determining the validity or invalidity of an election, except in a few cases in which a personal disability is imposed upon a candidate, are not defined by any positive law, but are left to be determined by the unwritten or common law of elections, which is no more than a rule for the protection of the community from the usurpation of intruders into its affairs.

So far as relevant to the present case, this common law may be summed up in one sentence, thus: - If, having regard to the circumstances attendant upon an election, it appears that there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors, the election may be declared void.

It will be found on consideration that this rule is the foundation, and the only foundation, for the power always assumed to exist of avoiding an election."

He summarised the common law position at 588 - 590, and indeed cited with approval (at 591 - 592) that part of the judgment in Woodward v Sarsons setting out the first limb of the grounds on which an election may be avoided. Having referred also to The West Division of the Borough of Islington Case (supra) he concluded, at 593:

"It appears, therefore, that the eminent Judges who were parties to these decisions were of opinion that if in a case to which the common law of elections applies it appears upon the evidence that a mishap or untoward event has occurred of such a nature that it may have probably affected the result the Court must act on the assumption that the result was affected."

It was on that basis that Griffith CJ would have declared the election void. However, as has already been noted, Griffith CJ was in dissent, and his summary of the common law position described above does not do full justice to the structures apparent from Woodward v Sarsons, namely that it must be shown that a majority of electors were or may have been prevented from properly expressing their preference. Barton J, also in dissent, agreed with the conclusion of Griffith CJ after a review of and applying Woodward v Sarsons.

Isaacs J wrote the leading judgment for the majority. He began by saying that the one circumstance he regarded as "dominant" was that the election was entirely a statutory proceeding, with statutory directions and statutory consequences, and that the terms of the statute for the conduct of the election had been adhered to. His primary conclusion was as follows, at 613 - 614:

"In my opinion, if Parliament, though specifying the true electors, also specifies its own method of ascertaining their identity for the purpose of the election, and prescribes that a person so ascertained shall not be excluded from voting, and that his vote shall be counted and the result ascertained with reference to that vote, then, even if it is in reality a personated vote, there is an end of the matter, unless further provision is made by Parliament or someone authorized by parliament for eliminating the vote or for declaring the election void by reason of that violation of the Act. Baron Martin's answer to the Parliamentary Committee in 1869, conveying the views of Willes J., is clear and authoritative, and was endorsed in 1901 by Kennedy J. in the Islington Case 5 O'M & H, at 126. It is this: 'To whatever extent the provisions of an Act of Parliament were wilfully violated, which did not enact that the consequences of those Acts avoided the seat, a person sitting judicially could not avoid the seat.' That, of course, assumes the correct official conduct of the election, and refers to individual breaches of the law. Parliament in this instance has not made any provision for avoiding the seat merely because some persons unconnected with the candidate have deceived the returning officer. The course dictated by Parliament to meet possible deception has been strictly pursued, and in my judgment that alone should at once determine this matter in favour of the appellant." (Emphasis in original)

He then proceeded on the assumption that s 40(6) of the Sydney Corporation Act did not preclude the inquiry, and dealt with the argument that, if the result may not represent the true choice of the majority of electors entitled to vote and to voting, the person was not duly elected, and therefore was "unduly elected".

He dealt extensively with Woodward v Sarsons. He said, at 616 - 618:

"Besides the common law essential freedom [of election], there are almost invariably added various statutory requirements in order to make an election as an entirety a proceeding conformable to law.

The case of Woodward v Sarsons deals with both classes of requirements. This case has been greatly canvassed, and appears to have led to some misunderstanding. It is of immense importance to understand it properly, because its doctrines apply to all classes of elections all over Australia. It was a case of municipal election, but that made no difference. The first question the Court formulated was: 'What is the true statement of the rule under which an election may be avoided by the common law of Parliament?' The Court answered that question by saying an election is to be declared void by the common law, if the tribunal is satisfied as a matter of fact either (1) that there was no real electing at all or (2) that the election was not really conducted under the subsisting election laws. Those were the only two grounds mentioned by the Court for so avoiding the election, and they have to be considered separately in order to understand the judgment.

The Court took each ground separately. As to the first, namely, no real election at all, the Court said the tribunal had to be satisfied of a certain fact which it is essential to remember in view of the argument. I quote the words: 'That the constituency had not in fact a fair and free opportunity of electing the candidate which the majority might prefer.' Under that head the Court enumerated general corruption, general intimidation, want of machinery, fraudulent counting, false official declarations, and then added 'or by other such acts or mishaps.' The words 'such mishaps' or 'such or similar mishaps' again occur, and it is only in connection with them that the words 'may have been prevented' are found. The formulation refers to parliamentary election cases that had been decided; and it is transparent, I think, that this part of the judgment was not only under the heading 'no real electing' by the constituency 'at all', but is confined, by its terms, first to general disqualification of the electorate for want of a full and free opportunity to elect, and next to such an official departure from the legal requirements for the conduct of an election as to deprive the proceedings, as an entirety, of the legal character of an election........

The Court proceeded to deal with the second head, viz., 'That the election was not really conducted under the subsisting election laws at all.' That has a nearer approach to the present case, but yet does not include it. Still, even as to this second head, the Court states the law in terms which appear to me to be fatal to the respondent's contention. The judgment declares that under this second head the question must be whether the departure from the prescribed method of election is great enough to deprive the election of its character as an election under the existing law. But there are no references to the phrase 'may have been' so much relied on. On the contrary, if the 'method' - by which the subsequent remarks show was meant the 'ballot method' - is substantially followed, then, says the Court, 'no mistakes or misconduct, however great, in the use of the machinery of the Ballot Act, could justify the tribunal in declaring the election void by the common law of Parliament.' That reiterates and reaffirms the answer of Martin B already quoted." (Emphasis in original; footnotes omitted).

Isaacs J then analysed what the Court in Woodward v Sarsons meant by the phrase "may have been prevented" in relation to the first limb. He said, at 618:

"At p 745 they show that it includes prevention from recording votes with effect, and say: - 'There is no evidence, as it seems to us, that any elector was prevented from recording his vote, or induced not to record it, by what occurred. .... The result is, that all the electors who desired to vote did vote.' So much for actual voting. Then, at p 746, the Court inquires into the validity or invalidity of the votes given, to see whether the voters were prevented from voting with effect by reason of the official errors. If the error was a departure, however, small, from a rigid mandatory enactment, so that the vote could not be counted, there would have been a prevention as to the votes affected; but if the departure is from a rule which requires only substantial and not strict compliance, and there is substantial compliance, there is no prevention."

As to why personation was not and should not be included as a ground at common law for declaring an election void, Isaacs J said, at 619 - 620:

"The reason is that personation is not infectious or contagious, it does not permeate; no matter how many instances there may be, they remain separate and individual instances. At all events, there was no general personation here.

With regard to individual personation, even where there has been no such clause as 40(6) of the Sydney Corporation Act, the common law, from the earliest recorded instance, has dealt with it as a matter required to be traced down in its effect to the candidate attacked.

The case of R v Jefferson [1833] EngR 879; 5 B & Ad, 855 seems to me quite sufficient to dispose of the case, even if sec 40(6) leaves investigation open. That was a decision of the Court of Queen's Bench in an application precisely similar to the present, the voting was by ballot, there was personation in excess of the majority, but there were no means of ascertaining for whom those votes were cast. The Court was composed of three most distinguished Judges - Lord Denman CJ, Parke J (afterwards Lord Wensleydale) and Taunton J. The decision turned upon what the common law said in such a case; and this was the judgment (at 858): - 'No primâ facie case is made for this application. The officer is called upon to show title without the possibility of proving it. All the bad votes may have been for the opposing party. The rule must be discharged.' In arguendo, Taunton J said to the applicant (at 858): 'It is for you to impugn the title.' "

He then referred to a number of other cases relating to personation which confirmed his opinion that, at least in such cases, the petitioner bore the onus of proving that the result of the election would have been different. He then condensed the result, so far as it affected that case, into six relevant propositions, at 623 - 624:

"(1) The election of an officer - in other words, his selection by the constituency - may be attacked only for a defect which affects him.

(2) If the defect strikes at the entire election, either because there was no real election at all or because some official irregularity has occurred, he is affected because his title is claimed through it, and he must meet the defect if he can.

(3) If there has been no real election, his selection so-called is necessarily void.

(4) If there has been any official irregularity in the conduct of the election, where the law requires absolute and strict adherence or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless he can show the result could not have been affected by it

(5) Where the defect complained of does not strike at the election as an entirety, but is confined to some breach of law in individual instances, then he is not necessarily affected, and is not affected at all unless he or his majority is shown to be connected with the defect.

(6) If the law does not provide any means of so affecting him he is not affected, and, as his selection cannot be regarded as unduly made, it must rest where it is."

As has already been pointed out, Gavan Duffy and Rich JJ both agreed with Isaacs J. Higgins and Powers JJ did not address the question.

Although in para (5) above Isaacs J qualifies the non-disqualifying effect of an individual breach of the law with the phrase "unless he or his majority is shown to be connected with the defect", that should not be taken as suggesting that, if the successful candidate himself or by his agent commits the offence, the position will be otherwise. What paras (5) and (6) indicate, taken in the context of all six paragraphs, is that a successful candidate cannot be displaced for such a breach of the Act unless the candidate or his majority in the election is the beneficiary of the breach. But even that will be insufficient to avoid the election unless the law provides otherwise as, for example, it did in s 182(1) of the Electoral Act 1925, where a candidate had committed bribery or undue influence. In those circumstances the Act required the election to be avoided.

In that respect I disagree with the view which seems to have been expressed to the contrary by Prior J in King v Electoral Commissioner (supra) at 180 - 184 namely that, in an election under the present Act, bribery or a breach of some other provision of the Act, if committed by the winning candidate, may be sufficient in itself to justify declaring the election void. That is not the effect of the common law, and his Honour's observations in that case appear to be based on a misconception of the effect of the common law and of what Isaacs J said about it in Bridge v Bowen.

Prior J cited two cases at 181 for the proposition that an election tainted by bribery will be declared void unless not connected with the candidate. The first, Blackburn Election Petition [1869] 20 LT (NS) 823; 1 O'M & H 198 was decided under the Corrupt Practices Prevention Act 1854 (UK) which, by s 36, declared a candidate declared by an election committee guilty of bribery, treating or undue influence at an election to be incapable of being elected at that election. In so far as it was said in that case that that result also reflected the common law, it does not accord with later authority. Indeed, it could not reflect the common law because it required a declaration by an election committee.

In the second case relied on, Ipswich Election Petition [1886] 54 LT (NS) 619; 4 O'M & H 70, Denman J at 620 - 621; 71 stated the common law in terms similar to that set forth above, namely that it was only general bribery and corruption which could avoid an election, although his Lordship accepted that if the winning margin were of the order of the number of votes corrupted, and the corruption was by the successful candidate, that might be sufficient to accommodate the common law test. That would not be surprising because it would still enable the Court to conclude that the electorate had not had a "fair and free opportunity of electing the candidate which the majority might prefer": Woodward v Sarsons (supra) at 743.

There remains a question whether the principles of the common law expressed in the cases should be modified in some way by provisions akin to s 106 of the South Australian Act. That appears to be the position in Queensland from two cases decided under the current Queensland legislation. Section 136 of the Electoral Act 1992 (Qld) provides:

"(1) Subject to sections 137 and 138, the Court of Disputed Returns may make any order or exercise any power in relation to the petition that the Court considers just and equitable."

The orders provided in sub-section (2) are similar to those which the South Australian Court may make. In Tanti v Davies (No. 3) (supra) at 30 Ambrose J, having made brief reference to Bridge v Bowen and Woodward v Sarsons, said, at 607:

"It is tempting in the absence of any clear statement of the grounds upon which a court may exercise the wide powers given to it under s 136 to require as a prerequisite of the exercise of those powers a determination of facts which would, upon the application of the common law of Parliament as defined in Bridge v Bowen justify the ordering of a new election."

Bridge v Bowen did not declare the common law of Parliament but the common law of elections. However, his Honour then referred to certain other sections of the Act which assumed a power to declare an election void by virtue of certain procedural defects. He continued, at 608:

"In spite of the absence of any express requirement for the finding of facts involving failure to comply with the statutory requirements of the Act or the occurrence during the election of something declared to be illegal under the Act, as presently advised, I would so construe s 136(1) as to require a prerequisite for the exercise of "any power in relation to the petition that the Court considers just and equitable" the determination of a fact or facts going to the validity of the election considered in the light of the statutory requirements to be found in the Act. If established such facts need to be considered in the light of all the circumstances to determine whether any invalidity leads to the conclusion, to use the words of Griffith CJ in Bridge v Bowen, 'that there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors'. "

This was the passage relied on by Mr Whitington QC in his submission that the Court must be guided by the norms contained in the Act. However, it seems to me that the reference to a determination of facts "going to the validity of the election considered in the light of the statutory requirements to be found in the Act" is an unjustifiable attempt to amalgamate in some way the two common law limbs enunciated in Woodward v Sarsons. Furthermore, the test then adopted by his Honour from the judgment of Griffith CJ in Bridge v Bowen does not appear to coincide entirely with the reasoning of the majority in Bridge v Bowen. I am therefore not persuaded that the principles of the common law should be modified in some way on that account, although it will be necessary to comment on the proper application of s 106 of the South Australian Act in due course.

The approach of Ambrose J was adopted in Re Carroll v Electoral Commission of Queensland [1998] QSC 190 (21 September 1998), where Mackenzie J noted at [12] that it was common ground that he should adopt the approach of Ambrose J set forth above. Mackenzie J continued:

"Where the foundation of the case is allegations that practices which infringe against provisions of the Electoral Act have been engaged in, the question is not merely whether there is satisfactory proof that that has occurred. It is whether, having regard to what has been proved, it is sufficiently established that such conduct resulted in a situation where there is good ground for believing the result recorded did not reflect the actual preference of a majority of electors."

In my opinion, that is not an accurate representation of the common law, and I can see no justification for its application in South Australia.

However, even if these criticisms are unjustified there is good reason to distinguish these cases based on the differences in the legislation. The Queensland Act requires that the order made should be what the Court considers just and equitable. That may well justify the approach taken by the Queensland Court. The South Australian Act does not qualify the orders to be made in that way. The requirement to be guided by good conscience etc in s 106 is a principle to be observed by the court in reaching its decision, which is different. The effect of s 106 is discussed in greater detail below.

The principles

It is now possible to identify from the cases to which reference has been made the principles which they appear to represent and to assess them in the light of the provisions of the Electoral Act 1985.

1. The only ground on which an election may be declared invalid at common law is by virtue of one of the two limbs referred to in Woodward v Sarsons, namely that there is no real election at all, or that the election was not really conducted under the requirements of the Electoral Act 1985.

2. Under the first limb of Woodward v Sarsons, the election will be declared void only if it can be shown that the electors did not in fact have a fair and free opportunity of electing the candidate which the majority might prefer, such as where a majority of electors are prevented from recording their votes effectively by general corruption, general intimidation, want of available machinery for voting, by fraudulent counting of votes or false declaration of numbers, or "other such acts or mishaps": Woodward v Sarsons (supra) at 743 - 744.

3. By way of alternative to the first limb of Woodward v Sarsons, the election may be declared void if a majority of electors may have been prevented from voting for one of the reasons mentioned in para 2: Woodward v Sarsons (supra) at 744; Bridge v Bowen (supra) at 618.

4. In determining whether electors may have been prevented from voting by official errors under the first limb, if the error was a departure from a rigid mandatory enactment so that the vote could not be counted, there is a prevention. If the departure is only from a rule which requires substantial and not strict compliance, there is no relevant prevention from voting: Woodward v Sarsons (supra) at 746; Bridge v Bowen (supra) at 618.

5. It is clear from the answer of Martin B, expressly approved in Borough of Bolton (supra) at 143 - 144, Woodward v Sarsons (supra) at 745, The West Division of the Borough of Islington (supra) at 125 - 126 and Bridge v Bowen (supra) at 614 that breach of a provision of the Electoral Act by a candidate which is not specified in the Act as requiring a declaration that the election is void or which is not sufficient in itself to justify an order at common law, will not be sufficient to declare an election void, unless the Act requires that result. It will not do so where the Act merely specifies some other penalty for the breach. This may explain, incidentally, why s 182(1) of the Electoral Act 1929 (SA) required that an election shall be declared void if the Court found that a candidate had committed or had attempted to commit bribery or undue influence. Under that Act, if such offences were committed by others, or if other illegal practices were proved, the election could be declared void only if the Court were satisfied that the result was likely to be affected by that conduct. The punishment for breaches of the Electoral Act 1985 is specified by the legislature, but no other consequences are specified such as would require the election to be declared void. In that regard I have not overlooked the provisions of s 133 which disqualify from election to or from sitting as a member of either House a person who has been convicted of bribery or undue influence or of attempted bribery or undue influence, but then only for two years from the date of conviction. It would be unlikely that a person would be convicted within 40 days of the return of the writ, being the period within which a petition must be filed: s 104(1)(e).

The second limb of Woodward v Sarsons has no application to this case. However, I mention the principles applicable for the sake of completeness and in order to avoid any suggestion that these principles apply to the first limb.

6. The second limb of Woodward v Sarsons allows an election to be declared void if it is not really conducted under the Electoral Act at all. That will depend on whether the departure from the Act is so great that the Court can be satisfied that the election was not an election under the existing law.

7. An election will not be held void by reason of transgressions of the Act without a corrupt motive by the returning officer or his staff where the Court is satisfied that the election was an election really and in substance conducted under the Electoral Act, and that the result of the election was not, and could not have been, affected by those transgressions: The West Division of the Borough of Islington (supra) at 125.

8. If the transgression by electoral officials was such that the election was not really conducted under existing laws, or that it is open to reasonable doubt whether the transgressions may not have affected the result, and it is uncertain whether the candidate has been really elected by the majority of persons voting in accordance with the Electoral Act, then the election may be declared void: The West Division of the Borough of Islington (supra) at 125.

9. The burden of proof that a violation of the electoral law did not and could not affect the result rests on the respondent: The West Division of the Borough of Islington (supra) at 130.

These principles must be modified in South Australia to be the extent that:

defamation of a candidate is a ground on which an election can be declared void, but only if the Court is satisfied on the balance of probabilities that the result of the election was affected by the defamation: s 107(4); and

if the complaint is that there is a defect in a roll or certified list of electors, or that there is an irregularity in, or affecting, the conduct of the election, the election can only be declared void if the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity: s 107(3).

For the purpose of s 107(3) of the Act, "irregularity" is restricted to conduct which offends the procedural requirements for the conduct of the election, as opposed to conduct which affects a person's decision on how to cast a vote. Generally speaking, irregularities will be restricted to matters contained in Parts 7 to 11 inclusive of the Act, being the matters for which the Electoral Commissioner is responsible under s 8(1)(b) of the Act, and to some of the conduct referred to in Part 13 of the Act, but not including conduct proscribed by s 113. No one before us sought to argue otherwise.

The result of the election referred to in s 107(3) and s 107(4) means the success of one candidate over another and not merely the number of votes a particular candidate receives: Eastern Division of the County of Clare (1892) 4 O'M & H 162 at 164; The West Division of the Borough of Islington (supra) at 125; Woodward v Sarsons (supra) at 750 - 751.

Section 106

In applying both the principles of common law and the modifications required by s 107 of the Act, one further qualification must be borne in mind. That relates to the troublesome requirements of s 106, particularly the requirement to be guided by good conscience and the substantial merits of each case, and the Court not being bound by the rules of evidence. Mandates in those or similar terms have been considered by courts in a variety of legislative settings governing the conduct of statutory tribunals. The provisions seem to have originated in legislation governing Courts of Requests or Small Debt Courts: see WH Winder "The Courts of Requests" (1936) 52 LQR 369 - 394; OH Beale "Equity and Good Conscience" (1937) 10 ALJ 349 - 351; Walkley v Dairyvale Cooperative Ltd (1972) 39 SAIR 327 at 342, 345-349. They have been considered in connection with workers compensation legislation: Santos Ltd v Saunders (1988) 49 SASR 556 at 564; Thomas v Airlines of New South Wales Pty Ltd (1964) 64 SR (NSW) 176, and industrial legislation: Walkley v Dairyvale Cooperative Ltd (supra) at 343 - 345, equal opportunity legislation: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, licensing legislation: SA Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Ltd (1975) 68 LSJS 172 at 176, legislation relating to taxation appeals: British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422 at 438 - 439 and in connection with a variety of different statutory tribunals: Walkley v Dairyvale Cooperative Ltd (supra) at 349 - 357; Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198.

Sometimes the decisions of the tribunal concerned have not been appealable. Some times they have, and that has raised questions as to the standards to be adopted by an appellate Court. As was observed by the majority (Gleeson CJ and Handley JA) in Qantas Airways Ltd v Gubbins (supra) at 29 - 31, apparent inconsistencies in their application arise from the context in which the relevant instruction appears. What is clear, at least from the preponderance of Australian authority, is that the mandate does not enable a Court or Tribunal to ignore principles of law or express statutory requirements which might be applicable. Beyond that, it appears that the words will take their meaning from their context. As Duggan J said on behalf of the Full Court of an equivalent provision in s 13 of the Commercial Tribunal Act 1982 in Ory & Ory v Betamore Pty Ltd [1993] SASC 3996; (1993) 60 SASR 393 at 414:

"The subsection cannot have the effect of excluding altogether the application of all legal principles which would other be applicable. In the light of the broad range of commercial matters within the jurisdiction of the Tribunal it is highly unlikely that the legislature intended to remove the degree of certainty which the law attempts to bring to such transactions. The relevance of these legal principles is also demonstrated by the Tribunal's power to state a case on any question of law for the opinion of the Supreme Court (s 19) and the appeal as of right to the Supreme Court on a question of law (s 20).

In Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd [1978] 1 Lloyd's Rep 357 at 363, Goff LJ, when interpreting a similar provision in an arbitration agreement, said that it enabled the arbitrator 'to view the matter more leniently and having regard more generally to commercial considerations than would be done if the matter were heard in Court'. I think the same can be said of the effect of this subsection."

In Sue v Hill (supra) the High Court made similar observations to the effect that a provision of that nature, when made applicable to a court, does not exonerate the court from applying substantive rules of law or of procedural fairness: Gleeson CJ, Gummow and Hayne JJ at 485; nor do they exonerate the court from the requirement to act judicially: Gaudron J at 520. McHugh J (at 548) would perhaps have given the section a wider ambit, but even he was constrained to concede that the powers were ancillary to the specific powers conferred on the court by the relevant legislation.

Mitchell J in Crafter v Webster (supra) at 329 considered that the words in the equivalent section in the Electoral Act 1929 (s 184) "refer only to procedure". She cited The Millicent Election Petition; Cameron v Corcoran (unreported, 13 June 1968) in support of that proposition. It appears that that observation was not necessary for her Honour's decision in that case. In any event, whether or not it was an appropriate observation in relation to the Electoral Act 1929, I consider that that is too narrow an application of the section in the present Act.

The Court is obliged to act judicially, to apply the requirements of the Act and the common law and to afford all parties and legitimate interveners the principles of natural justice. However, the common law criteria which I consider are applicable, as well as the requirements of s 107(3) and s 107(4), require a judgment to be made about whether there has been an election at all, whether the statutory electoral procedures have been so abused that there has been no election and whether, in the circumstances stated in s 107(3) and s 107(4) the result of the election was affected by the relevant defect or irregularity. Without the provisions of s 106, some might take the view that the only way of reaching a conclusion on those requirements is to hear evidence from every relevant elector as to their inability to vote, how they would have voted, how they in fact voted or, if the relevant circumstances had been different, how they would have voted. It might be said that at least a sufficient number of such people would have to give evidence in order to reach such a conclusion.

Section 106 avoids the need for any such requirement. It means, in the context of this Act, that the Court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgment in all the circumstances. However, the Court's judgment cannot be merely arbitrary. It must still apply the common law principles. In the case of s 107(3) and s 107(4) it must apply the well known standard of being satisfied on the balance of probabilities that the result of the election was affected by the defect, irregularity or defamation as the case may be.

The section therefore has a useful function, but it does not, as was suggested in the course of the petitioner's argument, allow the Court to create new law.

The application of the principles - Questions 2(a), (b) and (c)

I turn to the several grounds alleged in the petition and to the various sub-questions in question 2.

Paragraphs 12 to 18 of the petition raise allegations of inaccurate and misleading advertising. In each case it is alleged that an offence has been committed against s 113 of the Act. Publication of an electoral advertisement, if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, is an offence under s 113(2). A maximum penalty is fixed by the section. Subsections (4) and (5) provide for additional civil remedies where breaches of subsection (2) occur.

Although restricted to inaccurate and misleading statements of fact, the subsection is wide enough to encompass electoral advertisements designed to influence the decision of a voter on how to vote. It is not limited to material affecting the actual casting of the vote. In this respect it is to be distinguished from the equivalent provision in the Commonwealth Electoral Act 1918 (Cth), s 329(1). The predecessor to that subsection was to be found in the definition of "illegal practice", then in s 161 of the Commonwealth Electoral Act, as follows:

"(e) Printing, publishing, or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote."

In Evans v Crichton-Browne [1981] HCA 14; (1980) 147 CLR 169 the Full Court of the High Court held (at 204 - 208) that that provision did not extend to statements which might influence the political judgment of an elector. It would appear that s 113 of the South Australian Act is wide enough to cover such statements, provided that they are statements of fact.

I am prepared to assume that, subject to any defence available under s 113(3), s 113(2) would apply to the statements alleged in paras 12 - 18 of the petition. However, assuming for present purposes that they do not fall within s 107(3), there is nothing in the Act which requires that the Court must declare an election void where a candidate has committed an offence against that section. The mere fact that an offence of that nature has been committed would not be sufficient, in accordance with the common law principles, to avoid the election. Nevertheless, it is conceivable that some advertisements might, whether or not an offence has been committed, and depending on their nature and the extent of publication, have the effect of rendering the election void at common law.

I do not underestimate the difficulty in determining how, if at all, the advertisements alleged might have affected the will of the relevant voters among all the other competing election material that was undoubtedly being published at the time. Nor do I underestimate the difficulty of showing that the will of sufficient electors was so overborne by the statements that there was no real electing at all in the sense encompassed by the first limb of Woodward v Sarsons. On the material before us it cannot be said that those criteria cannot be met. That will be a matter for the judge constituting the Court of Disputed Returns. I would therefore answer question 2(a): "Yes, in respect of all paragraphs".

The ground raised in para 19 of the petition and para (3) of the prayer for relief does not allege an offence against the Act. It does allege that the facts constitute what the petition describes as "electoral misconduct" by Mr Lewis. As in the case of paras 12 to 18 of the petition, para 19 may possibly raise questions which give rise to the application of the first limb in Woodward v Sarsons, depending on the nature of the evidence led before the Court. I would answer question 2(b): "Yes".

As for question 2(c), this question relates to the allegations of defamation against the petitioner. The Court plainly has jurisdiction to entertain those questions under s 107(4). I would answer question 2(c): "Yes, in respect of all paragraphs".

Question 2(d)

This part of the petition raises questions of a quite different nature. The complaint in paras 23 - 28 of the petition relies not only on conduct of Mr Lewis preceding the election (by announcing his support for the formation of a Liberal Government), but also on his conduct after the election, namely an announcement on about 13 February 2002 that he supported elected candidates of the Australian Labor Party to form a government, and that he has since given such support. The latter could only mean by his actions in the Parliament. His obligation not to support the formation of a Labor Government is said to arise from s 83(1) of the Constitution Act 1934.

Part 5 of the Constitution Act, in which s 83 appears, requires a body constituted under the Act as the Electoral Districts Boundaries Commission, at various times, including within three months after each polling day for a general election, to undertake an electoral redistribution in accordance with principles specified in the Constitution Act. In that context s 83 relevantly provides:

"(1) In making an electoral redistribution the Commission must ensure, as far as practicable, that the electoral redistribution is fair to prospective candidates and groups of candidates so that, if candidates of a particular group attract more than 50 per cent of the popular vote (determined by aggregating votes cast throughout the State and allocating preferences to the necessary extent), they will be elected in sufficient numbers to enable a government to be formed.

(2) In making an electoral redistribution, the Commission must have regard, as far as practicable, to -

..................

(3) For the purposes of this section a reference to a group of candidates includes not only candidates endorsed by the same political party but also candidates whose political stance is such that there is reason to believe that they would, if elected in sufficient numbers, be prepared to act in concern to form or support a government."

As I understand the argument for the petitioner, it is that s 83 establishes a fundamental rule for the conduct of elections that if candidates for a particular group or with a common political stance receive more than 50 per cent of the votes after the distribution of preferences, then those candidates will be in a position to form a government. It is said that the objective of s 83 is undermined where there is a close election and a candidate who has announced a preference for one particular group changes his position after the election to support candidates of the other political group.

In my opinion the submission is unfounded. Section 83 is directed only at the Electoral District Boundaries Commission. It ceases to have any work to do once the occasion has arisen for the redistribution of boundaries and the redistribution has taken place. Many things may happen to frustrate the objectives of s 83 between the completion of the redistribution process and the conduct of the next general election. New political parties may form; old ones may divide; new political alignments may be formed; demographic forecasts may not be fulfilled. However, none of those events could possibly invalidate a subsequent election. In my opinion, s 83 cannot impose a duty or an obligation upon elected members of parliament to support or to oppose the formation of any particular government after the election.

Furthermore, the jurisdiction of the Court is to determine the validity of the election and to make appropriate orders if it finds that a particular candidate has not been duly elected. That process will be completed upon the return by the Electoral Commissioner. The validity of the process must be able to be judged at that point. It cannot be judged by reference to actions subsequently taken by a candidate who has been returned. The only relevance such actions could possibly have is to assist in determining the existence of a fact or the truth of an assertion occurring before the election.

Finally, Mr Lewis argues that the petition calls into question his actions in Parliament after the election. He relies on the principle that Courts will not intervene to question the freedom of speech, debates or proceedings of Parliament, a principle expressly provided for in article 9 of the Bill of Rights 1688 and incorporated in South Australian law by virtue of s 38 of the Constitution Act. Its effect has been discussed in a number of cases, including Wright v Lewis (1990) 53 SASR 416 per King CJ at 423 - 424, Prebble v Television New Zealand [1995] 1 AC 321 at 332, Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 per Kirby J at 490 -491 and Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450 as to the operation of s 16(3) Parliamentary Privileges Act 1987 (Cth). In the circumstances, it is not necessary to examine the full extent of the protection and whether it is properly called into play by the allegations in the petition. There are other grounds which dictate the answer to this question.

In my opinion the answer to question 2(d) should be: "No".

Question 3

In view of the conclusion expressed above as to the meaning of the expression "an irregularity in, or affecting, the conduct of the election", the answer to this question becomes self evident.

The complaints in paras 12 - 18 and para 19 of the petition do not go to the conduct or mechanics of the election at all, but to the effect of the alleged conduct on how people voted and whether, as a result of the conduct alleged, there was no real electing at all, in the sense discussed in the cases.

In view of the answer proposed to question 2(d), it is not necessary to answer question 3(c).

The answers to these questions should be:

3(a): "No".

(b): "No".

(c): "Not necessary to answer".

Question 4

This question raises the issue of the validity of conferring the jurisdiction of the Court of Disputed Returns on the Supreme Court, and the application to the provisions of the Electoral Act 1985 of the decision in Kable v DPP [1996] HCA 24; (1996) 189 CLR 51. In short, that case decided that if a Court of the State is invested, as this Court is, with federal jurisdiction and able to exercise the judicial power of the Commonwealth pursuant to s 71 of the Constitution, and if the Court purports to have conferred on it by the parliament of the State a power which is repugnant to or incompatible or inconsistent with the exercise by the Court of the judicial power of the Commonwealth, the purported conferral of the power in invalid.

Kable itself was an unusual and extraordinary case. The principle behind it has not been successfully invoked to strike down any other legislation since.

Mr Tilmouth QC, who argued this aspect of the case for the intervener, properly conceded that the application of the principles could not arise in this case if this Court were to conclude that the exercise of the jurisdiction of the Court of Disputed Returns was confined by the principles of the common law or by the provisions of the Act. My conclusion is that the Court is so confined. In those circumstances, the issue does not arise.

The function of this Court as a Court of Disputed Returns is similar to that of the High Court under the Commonwealth Electoral Act 1918 (Cth). In Sue v Hill (supra) the High Court decided that that jurisdiction involved an exercise of the judicial power of the Commonwealth consistent with Chapter III of the Constitution. Although the criteria governing the exercise of the High Court's jurisdiction are to be found in the Commonwealth Electoral Act 1918 (Cth), and the criteria governing the exercise of this Court's powers are to be found in both the Act and the common law, the exercise of this Court's jurisdiction still undoubtedly requires the Court to act judicially and constitutes the exercise of judicial functions which cannot be repugnant to or incompatible or inconsistent with the conferral of or exercise by this Court of the judicial power of the Commonwealth.

The answer to question 4 must therefore be: "No".

Conclusion

I would answer the questions referred as follows:

1: The jurisdiction conferred pursuant to s 103(2) of the Electoral Act 1985 is exercisable by the Supreme Court.

2(a): Yes, in respect of all paragraphs.

(b): Yes.

(c): Yes, in respect of all paragraphs.

(d): No.

3(a): No.

(b): No.

(c): Not necessary to answer.

4: No.

Authorities Cited17

Referred to (17)