Current Issues Brief 4 1999-2000

Dr Max Spry
Law & Bills Digest Group
21 September 1999

Contents

Introduction

The Facts
Procedural Issues

The Substantive Issues
The Decision

Conclusion
Endnotes

Introduction

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).

The Facts

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:

2. One Nation preferences would only be given with his written agreement; and

3. He would receive a 75 per cent refund of his campaign expenditure from funds passed to One Nation from the Electoral Commission.

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 Act.

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.

Procedural Issues

Standing

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 19).

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).

Time Limits

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 limit.

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 the matter:

The Substantive Issues

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 registered:

2. One Nation did not have as an objective the election of candidates to the Queensland Legislative Assembly

3. 'the person who signed as secretary of the party was not in fact the secretary of the party' ;

4. One Nation did not have 500 members in Queensland (para 15).

The Decision

Election of Candidates to the Queensland Legislative Assembly

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 Nation.

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 Secretary

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 62).

500 Members

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 (para 71).

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 Inc

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 company)

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:

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' .

Conclusion

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.

Endnotes

2. Supreme Court of Queensland, No.6318 of 1998, 18 August 1999, unreported.

3. Refer subsection 136(3) and paragraph 137(1)(c).

 

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