Dr Max Spry
Law & Bills Digest Group
21 September 1999
The Electoral Act 1992 (Qld)
The Substantive Issues
Election of Candidates to the
Queensland Legislative Assembly
On 18 August 1999 the Queensland Supreme Court
decided in Sharples v O'Shea(1) that Pauline Hanson's One
Nation was not validly registered under the Queensland
Electoral Act 1992. This Current Issues Brief sets out the
grounds for the Court's decision.
The Electoral Act 1992 (Qld)
Section 70 of the Electoral Act 1992
(Qld) provides that an application for registration as a political
party must be made by the secretary of the party, must include the
names and addresses of 500 members of the party (who are also
electors) and must be accompanied by the party's constitution. In
order to be registered, a party must have as one of its aims the
election of members to the Queensland Legislative Assembly.
Section 72 states that the Electoral
Commissioner must register the party if it complies with the
requirements set out in section 70.
A person affected by a decision of the Electoral
Commissioner under section 72 may apply to the Supreme Court for
review of that decision (section 180).
In May 1998, Mr Sharples, the plaintiff, agreed
to join Pauline Hanson's One Nation (One Nation). He also agreed to
contest the seat of Burleigh on the Party' s behalf at the
Queensland State election on 13 June 1998. He placed two conditions
on his candidature:
- One Nation preferences would only be given with his written
- He would receive a 75 per cent refund of his campaign
expenditure from funds passed to One Nation from the Electoral
Prior to the election a disagreement arose
between Mr Sharples and Mr Oldfield of One Nation as to the
distribution of preferences. On 12 June 1998, the day before the
election, Mr Sharples was told by another national official of One
Nation that he was 'on [his] own' (para 4 of the judgment).
Mr Sharples did not withdraw his nomination and
his name remained on the ballot paper. He continued to be described
as a candidate for Pauline Hanson's One Nation.
Mr Sharples received over 4 per cent of the
valid first preference votes and hence, on the face of it, Pauline
Hanson' s One Nation was entitled to reimbursement of election
expenses in the seat of Burleigh under the provisions of the
On 16 June 1998 Mr Sharples advised One Nation
that he had spent over $11 000 on his campaign for Burleigh.
On 14 July 1998, Mr Sharples sent letters of
demand to a person described as the National Vice-President,
National Secretary, Pauline Hanson's One Nation and to another
described as the State Director, Pauline Hanson's One Nation.
However, no reimbursement was forthcoming.
Mr Sharples sought an injunction preventing the
Queensland Electoral Commissioner, the first defendant in this
action, Mr O'Shea, from paying the disputed funds in reimbursement
of Mr Sharples' electoral expenses to Pauline Hanson' s One Nation.
The injunction was granted on 29 July 1998.
The injunction was discharged on 14 August 1998.
The Electoral Commissioner then, on 2 September 1998 and 25
September 1998, paid the disputed funding (a little under $500 000)
to One Nation for the entire Queensland campaign, including for the
seat of Burleigh.
The first issue to be decided by the Court was
whether Mr Sharples had standing to seek judicial review of the
Electoral Commissioner's, Mr O'Shea's, decision to register One
Nation as a political party.
Section 180 of the Queensland Electoral Act
1992 provides that 'any person affected' by a decision to
register a political party under section 72 of the Act may apply to
the Supreme Court for a review of that decision. Was Mr Sharples
affected by the Commissioner's decision to register One Nation? The
Court noted that the 'criterion of standing should not be given a
narrow construction', and further observed that the legislation has
given the Supreme Court an important role in supervising 'the
decisions of the commissioner to register political parties' (para
The Court decided that the plaintiff did have
standing. It concluded that:
- Mr Sharples had joined One Nation;
- stood as a candidate for it;
- its name appeared next to his on the ballot paper; and,
- he expected it would obtain electoral funding and his campaign
expenses would be refunded in whole or in part (para 20).
The Court concluded that Mr Sharples' 'interest
comes within the scope and purpose of the statute in issue because
he was affected by the rights given to the political party by
registration' (para 20).
Section 180 of the Queensland Electoral Act
provides that a person seeking review of the Electoral
Commissioner's decision to register a political party must do so
within one month after he or she becomes aware of the decision to
register. The Court has, however, a discretion to extend that time
The decision to register One Nation was made on
4 December 1997. The Court stated that it could only be certain
that Mr Sharples' had actual notice of the Electoral Commissioner's
decision to register One Nation in early July 1998 (para 28).
However, it seems that Mr Sharples did not commence the present
proceedings until late August 1998, after the one month time limit
had expired. In deciding to exercise its discretion to extend the
time limit, the Court noted that Mr Sharples had engaged legal
advisers and that he relied on their advice on how to proceed with
There can be no real suggestion that the
plaintiff slept on his rights. There is an adequate explanation for
any delay in commencing proceedings (para 33).
The fundamental substantive issue for
determination by the Queensland Supreme Court, constituted by Her
Honour Justice Atkinson, was ' whether or not Pauline Hanson's One
Nation was properly registered' under the Electoral Act
1992 (para 15). The plaintiff put forward three main grounds
to support his argument that One Nation was not validly
- One Nation did not have as an objective the election of
candidates to the Queensland Legislative Assembly
- 'the person who signed as secretary of the party was not in
fact the secretary of the party' ;
- One Nation did not have 500 members in Queensland (para
Election of Candidates to the Queensland
When a political party seeks registration under
the Queensland legislation it is required to include in its
application a copy of its constitution. The party seeking
registration must also have as one of its objects or activities the
promotion of its candidates for election to the Queensland
Legislative Assembly (para 41).
Ms Hanson lodged an application for registration
of One Nation in Queensland on 15 October 1997. On 16 October
1997 the Electoral Commissioner wrote to Ms Hanson noting that
while the application for registration included a constitution that
provided for One Nation to stand candidates for election to the
Federal Parliament, no mention was made of the Queensland
Legislative Assembly. The letter pointed out that the constitution
needed to be amended to reflect the requirement to stand candidates
for election to the Queensland Legislative Assembly (para 48).
Several days later, the Electoral Commissioner
received an amended front sheet to One Nation's constitution which
contained as an aim of the party the endorsement of candidates for
election to the Legislative Assembly of Queensland (para 50).
Justice Atkinson, therefore, dismissed the
plaintiff's first ground for challenging the registration of One
Her Honour observed that 'shortly after the
application [for registration of One Nation] and before
registration, the second defendant [One Nation] had as one of its
activities the promotion of the election of candidates to the
Legislative Assembly' (para 54).
The plaintiff's second ground was based on the
fact that the Electoral Act 1992 (Qld) requires an
application for registration of a political party to be made by the
secretary of the party seeking registration.
A 'Secretary' is described in the Act as 'the
person who holds the office (however described) whose duties
involve responsibility for carrying out the administration, and
dealing with the external correspondence of the party'.
It seems that One Nation's application for
registration was signed by Ms Cheyenne MacLeod. Evidence before the
Court was that Ms MacLeod, rather than being the secretary of One
Nation was in fact 'only a secretary in the office ... a clerk in
the office' (para 60).
However, Justice Atkinson found that the
Electoral Commissioner's decision to register One Nation was not
invalidated by its failure to comply with the requirement that the
party secretary make the application for registration (para
Justice Atkinson accepted the third ground put
forward by the plaintiff to support his argument that One Nation
was not validly registered, that is, One Nation did not have 500
members at the time it sought registration.
The application for registration included a list
of over 1000 names, of whom at least 530 were Queensland electors
However, Justice Atkinson said One Nation, the
political party, did not have 500 members. Her Honour found that
there were at least three related organisations:
(1) Pauline Hanson Support Movement
The Pauline Hanson Support Movement Inc is an incorporated
association. On payment of a membership fee, an individual becomes
a member of the Pauline Hanson Support Movement Inc, 'a
non-political organisation which supported the aims and objectives
of Pauline Hanson' (para 85).
(2) Pauline Hanson One Nation Ltd (the
The company was incorporated in September 1997,
with five subscribers: Pauline Hanson, David Ettridge, David
Oldfield, Andrew Carne and Stephen Menagh.
(3) Pauline Hanson' s One Nation
This entity is the political party, and in order
for it to be registered under the Queensland legislation it needed
to have at least 500 members. However, Justice Atkinson found that
it only had three members: Ms Hanson, Mr Ettridge and Mr Oldfield.
Her Honour said:
From its constitution, it can be seen that it
was completely controlled by Ms Hanson, Mr Ettridge and Mr Oldfield
and no other person. There were no other members (para 127).
Her Honour said that Ms Hanson and Mr Ettridge
sought to register One Nation knowing that a requirement for
registration was 500 members and also knowing that One Nation did
not have 500 members. Justice Atkinson found that One Nation was
not validly registered under the Electoral Act 1992 as its
registration was 'induced by fraud or misrepresentation' .
The registration of the party was induced by
fraud or misrepresentation in that Ms Hanson and Mr Ettridge as the
management committee of Pauline Hanson's One Nation who were
responsible for the registration application well knew that it did
not have 500 members. This is not an insignificant matter as it is
the basis for the registration of a non-parliamentary party as
Pauline Hanson' s One Nation was at that time (para 135).
The decision should have no direct implications
for the federally registered political party known as Pauline
Hanson's One Nation. One Nation was registered under the
Commonwealth Electoral Act 1918 on 27 March 1997. Ms
Hanson was elected to the Federal Parliament in the 1996 elections.
A ground for application for registration under the
Commonwealth Electoral Act 1918 (section 126) is that the
party has a member in the Commonwealth Parliament, a requirement
that would have been satisfied by the then Member for Ipswich, Ms
Hanson, so that the number of members of the party is not fatal to
the Commonwealth registration.
A federally registered political party may be
de-registered in certain circumstances. Section 136 of the
Commonwealth Electoral Act provides that a registered political
party may be deregistered where it is no longer a parliamentary
party and has fewer than 500 members. (Section 123 of the
Commonwealth Electoral Act defines a 'parliamentary party' to be a
political party at least one member of which is a member of the
Commonwealth Parliament or a State or Territory Parliament.)
Accordingly, only in very limited cases may a
party with parliamentary representation be deregistered.(2) Another
option is voluntary deregistration (section 135).
At the time of writing it appears that One
Nation has appealed Justice Atkinson' s decision. Media reports
also suggest that One Nation has attended to the requirements for
validly registering the party in Queensland.
- Supreme Court of Queensland, No.6318 of 1998, 18 August 1999,
- Refer subsection 136(3) and paragraph 137(1)(c).