A number of previously reported matters involving the recovery of legal costs continued in the relevant jurisdiction including the recovery of costs in three of the four Court of Disputed Returns matters that arose following the 2010 federal election.

As indicated in the 2011–12 annual report, the AEC has continued to be involved with legal action brought by Mr John Mulholland. Mr Mulholland has been involved in a long-running dispute over who is the registered officer of the Democratic Labor Party of Australia (DLP) for the purposes of the conduct of federal elections. The registered officer of a political party recognised by the AEC has various rights and obligations under the Electoral Act, particularly in endorsing a party’s candidates in a federal election. Mr Mulholland had previously lodged an appeal to the Full Bench of the Federal Court of Australia from a decision of the Administrative Appeals Tribunal that found that substitution of Mr Anthony Zegenhagen, as the registered officer for the DLP was valid. The Full Bench of the Federal Court of Australia handed down its decision on 19 September 2012 (see Mulholland v Australian Electoral Commission [2012] FCAFC 136). The court dismissed the appeal by Mr Mulholland and awarded costs in favour of the AEC. Mr Mulholland lodged a special leave application with the High Court of Australia to appeal against the Federal Court decision. On 10 April 2013, Justices Hayne and Crennan of the High Court dismissed the special leave application.

There was a related challenge to the AEC’s decision to replace Mr Mulholland on the Register of Political Parties as the registered officer for the DLP. On 27 June 2012, the AEC wrote to Mr O’Donohue informing him that, notwithstanding his submissions, the AEC had changed the Register of Political Parties following an application from Mr Stephen Rawson to be the NSW State Secretary of the DLP. On 20 July 2012, Mr O’Donohue lodged an application with the Administrative Appeals Tribunal for review of this decision. On 21 January 2013, the Deputy President of the Tribunal finally dismissed the application from Mr O’Donohue (see O’Donohue and Australian Electoral Commission [2013] AATA 23).

Two challenges relating to convictions for failing to vote at the August 2010 federal election remained before the courts. The first matter involved a Mr Dieter Horn. Mr Horn has engaged in litigation since August 2006 claiming that the voting compartments provided by the AEC in polling booths be either fully enclosed or have curtains to maintain the secrecy of the ballot. Mr Horn has argued that the current voting screens are unlawful and breach the requirements of sections 206 and 331 of the Electoral Act. Mr Horn has a conviction in the Magistrates Court of Western Australia in 2008 for failing to vote in breach of the compulsory voting requirements contained in section 245 of the Electoral Act. Mr Horn appealed that decision to both the Supreme Court of WA and the WA Supreme Court of Appeal on the basis that his concerns about the voting screens amounted to a “valid and sufficient reason” for his failure to vote at the November 2007 election. Both Courts upheld the conviction and rejected Mr Horn’s arguments.

At the August 2010 federal election, the records show that Mr Horn again failed to attend a polling booth and to cast a vote. On 29 August 2012, the WA Magistrates Court convicted Mr Horn of failing to vote at the election without having a valid and sufficient reason for that failure. Mr Horn appealed against the conviction to the Supreme Court of WA. On 7 March 2013, Justice Hall dismissed the appeal from Mr Horn (see Horn v AEC [2013] WASC 72). In the final paragraph of the decision, His Honour stated that:

“A stubborn refusal to accept the lawful judgment of the courts cannot be excused on the grounds of fidelity to one’s values. Too much time and effort has been spent on an issue that has long ago been determined. It is well nigh time that Mr Horn accepted the judgment of those whose job is to judge”.

The second matter involved Mr Nils Anders Holmdahl. On 3 February 2012, the SA Magistrates Court convicted Mr Holmdahl of failing to vote at the August 2010 election. Mr Holmdahl appealed against the conviction to the Supreme Court of SA. The appeal was referred to the Full Court of the Supreme Court of SA which dismissed the appeal from Mr Holmdahl (see Holmdahl v AEC (No.2) [2012] SASCFC 110). Counsel for Mr Holmdahl argued that while the Constitution established a right to vote, the requirements of the Commonwealth Electoral Act 1918, which created the obligation to vote, were unconstitutional. The Court rejected this argument and held that:

“The Commonwealth electoral system, as described above, represents a system designed to support the election of the House of Representatives and of the Senate by the people of Australia. The Commonwealth Electoral Act has the purpose of ensuring representative democracy. The broad effect of the statute is to require all eligible persons to enrol as voters and then to require those voters to attend and vote. The terms of sections 245(1) and 245(15) establish a duty to vote and a failure to vote attracts a criminal sanction. It is difficult to understand how the obligation to enrol and the obligation on a voter to vote could detract from a representative democracy in which the people of Australia choose who is to represent them in the House of Representatives and in the Senate. To my mind, the Commonwealth Electoral Act is legislation enacted within power. It provides a relevant system in contemporary times to ensure that Australia is a representative democracy.”

Mr Holmdahl lodged a special leave application with the High Court of Australia to appeal against the decision of the Full Court of the Supreme Court of SA. On 12 April 2013, Justices Hayne and Crennan of the High Court dismissed the special leave application (see Holmdahl v AEC [2013] HCA Trans 072).

The AEC conducts elections in various industrial matters. The AEC is the ballot agent for protected action ballots conducted under the Fair Work Act 2009. The AEC also conducts elections for office bearers in industrial elections conducted under the Fair Work (Registered Organisations) Act 2009. These industrial elections can give rise to disputes between two parties (for example, between the industrial organisation and the employer or between various candidates standing for election to office bearer positions). In these matters, the AEC seeks to be joined as a party to the proceedings to enable it to assist the court in accordance with the principles established by the High Court in the case of R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

Under section 182 of the Fair Work (Registered Organisations) Act 2009, the AEC conducts elections for office bearers in industrial organisations unless the Fair Work Commission has granted an exemption (see section 183). Organisations are required to lodge the required details for an election with the Fair Work Commission (see section 189). When they provide that information, the General Manager of the Fair Work Commission passes it to the AEC. The AEC then proceeds to conduct the election. There are a number of offences in relation to the actions, which hinder or obstruct an election and the AEC would refer allegations of breaches to the General Manager of the Fair Work Commission or to the Australian Federal Police. If the allegation can be construed as an “irregularity” (see Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015) that has affected the outcome of the election, then under subsection 200(2) of the Registered Organisations Act, the AEC is required to make an application to the Federal Court for an Inquiry.

The AEC was involved with four matters before the Federal Court of Australia in 2012–13. All four matters involved the eligibility of candidates to stand for election for vacant office bearer positions with their respective industrial organisations. The reported decisions in these matters are:

  • Troy Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division (No 2) [2012] FCA 1387
  • Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289
  • Mcjannett v Bulloch [2012] FCA 1233
  • Beswick, in the matter of an Election for an Office in the Shop, Distributive & Allied Employees’ Association v Swetman [2013] FCA 642.
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