From: Subject: Sharples v O'Shea & Anor [1999] QSC 190 (18 August 1999) Date: Sat, 30 Aug 2003 16:18:10 +1000 MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_000_0269_01C36F12.4DD401A0"; type="text/html" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1165 This is a multi-part message in MIME format. ------=_NextPart_000_0269_01C36F12.4DD401A0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.austlii.edu.au/au/cases/qld/QSC/1999/190.html Sharples v O'Shea & Anor [1999] QSC 190 (18 August = 1999)

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Sharples v O'Shea & Anor [1999] QSC 190 (18 August 1999)

Last Updated: 19 August 1999

IN THE SUPREME COURT=20

OF QUEENSLAND=20

No 6318 of 1998=20

Brisbane=20

[Sharples v O'Shea & Anor]=20

BETWEEN:=20

TERRY PATRICK SHARPLES=20

Plaintiff=20

AND:=20

DESMOND J O'SHEA=20

First Defendant=20

AND:=20

PAULINE LEE HANSON as representative of=20

herself and all members of PAULINE HANSON'S=20

ONE NATION (as registered under the Electoral Act=20

1992 (Qld))=20

Second Defendant=20

REASONS FOR JUDGMENT - ATKINSON J=20

Judgment delivered 18 August 1999=20

CATCHWORDS ADMINISTRATIVE LAW - STATUTORY APPEALS FROM = ADMINISTRATIVE=20 AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - = application for=20 review of decision of Electoral Commission to register political party - = whether=20 applicant had standing to bring application - where application brought = out of=20 time - whether discretion to extend time should be exercised.=20

ADMINISTRATIVE LAW - ADMINISTRATIVE DECISION - procured by=20 misrepresentation of fact or fraud - invalidity - consequences.=20

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE=20 LEGISLATURE - ELECTIONS AND RELATED MATTERS - QUEENSLAND - OTHER MATTERS = -=20 invalid administrative decision - whether obtained by fraud or = misrepresentation=20 - effect.=20

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PLEADING - = STATEMENT OF=20 CLAIM - where application for review brought under the Ele= ctoral=20 Act 1992 - whether questions posed at trial sufficiently raised = on the=20 pleadings.=20

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS,=20 LIABILITIES AND DISSOLUTION - INTERNAL MANAGEMENT - GENERALLY - = political=20 organisations - membership - whether people were members of the = political=20 party.=20

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS,=20 LIABILITIES AND DISSOLUTION - RULES AND MEETINGS - political = organisations -=20 whether political party properly registered by Electoral Commission - = change to=20 constitution - whether applicants for membership accepted as = members.=20

As= sociations=20 Incorporation Act 1981 (Qld) s.48=20

Associations Incorporation Regulation 1982 (Qld)=20

Co= mmonwealth=20 Electoral Act 1918 s.141=20

Corpora= tions=20 Law s.360=20

Ele= ctoral=20 Act 1992 (Qld) ss.3, = 7,=20 69-75,=20 84,=20 180, sch.=20

Allan v Development Allowance Authority (1998) 152 ALR 439 = referred=20 to=20

Alphapharm Pty Ltd v Smithkline Pty Ltd (1994) 121 ALR 373=20 considered=20

Associated Provincial Picture Houses v Wednesbury = Corporation=20 [1948] 1 KB 223 referred to=20

Attorney-General (NSW) v Quin (1990) 170 = CLR 1=20 referred to=20

Australian Broadcasting Corporation v Redmore Pty Ltd = (1989) 16= 6 CLR=20 454 referred to=20

Australian Conservation Foundation Inc v The Commonwealth = (1980) 14= 6 CLR=20 493 followed=20

Australian Institute of Marine and Power Engineers v Secretary, = Department of Transport (1986) 71 ALR 73 referred to=20

A'Hearn v Comcare (1993) 18 AAR 22 referred to=20

Baldwin v Everingham [1993] 1 Qd R 10 followed=20

Banque Commerciale SA en liquidation v Akhil Holdings Ltd = (1990) 16= 9 CLR=20 279 considered=20

Bateman's Bay Land Council v Aboriginal Fund (1998) 72 ALJR = 1270=20 considered=20

Bollag v Attorney-General (Cth) (1997) 149 ALR 355 referred = to=20

Briginshaw v Briginshaw (1938) 60 = CLR=20 336 at 363 followed=20

Burton v Murphy [1983] 2 Qd R 321 referred to=20

Cameron v Hogan (1934) 51 = CLR=20 358 at 384 considered=20

Chalk v Commissioner for Superannuation (1994) 50 FCR 150 = referred=20 to=20

Chapman v Tickner (1995)=20 55 FCR 316 referred to=20

Clayton v Heffron (1960) 10= 5 CLR=20 214 referred to=20

Conservative and Unionist Central Office v Burrell [1980] 3 = All ER=20 42 referred to=20

Dare v Pulham (1982) 14= 8 CLR=20 658 referred to=20

Edgar and Walker v Meade (1916) 23 CLR 29 followed =

Federal Commissioner of Taxation v Bayly (1952) 86 = CLR=20 506 considered=20

Fenlon v Radke [1996] 2 Qd R 157 referred to=20

G v H (1994) 18= 1 CLR=20 387 followed=20

Hoffmann v The Queensland Local Government Superannuation = Board=20 [1994] 1 Qd R 369 considered=20

Hunter Valley Developments Pty Ltd v Cohen (1984) = 3 FCR 344=20 referred to=20

Krakowski v Eurolynx Properties Ltd (1995) 18= 3 CLR=20 563 followed=20

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 = Qd R 663=20 considered=20

Lamb v Moss (1983) 49 ALR 533 referred to=20

Lazurus Estates Ltd v Beasley [1956] 1 QB 702 referred = to=20

Leung v Minister for Immigration and Multicultural Affairs = (1997)=20 150 ALR 76 considered=20

Lewis v Heffer [1978] 1 WLR 1061 referred to=20

Lucic v Nolan (1982) 45 ALR 411 referred to=20

Minister for Immigration and Ethnic Affairs v Wu Shan Liang = (1996)=20 18= 5 CLR=20 259 referred to=20

Onus v Alcoa of Australia Ltd (1982) 149= CLR=20 27 followed=20

Packer v Meagher (1984) 3 NSWLR 486 referred to=20

Project Blue Sky Inc v Australian Broadcasting Authority = (1998) 72=20 ALJR 841; 51 ALR 490 applied=20

R v Ashford, Kent, Justices; Ex parte Richley (No 2) = [1956] 1=20 QB 167 referred to=20

R v Commonwealth Court of Conciliation and Arbitration; ex = parte Ozone=20 Theatres (Aust) Ltd (1949) 78 = CLR=20 389 considered=20

Rajski v Bainton (1990) 22 NSWLR 125 referred to=20

Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 137 = ALR 47=20 considered=20

Re Williams and Australian Electoral Commission (1995) 38 = ALD 366=20 considered=20

Renowden v McMullin (1970) 12= 3 CLR=20 584 referred to=20

Robertson v Knuth [1997] 1 Qd R 95 referred to=20

Robinson v Western Australian Museum (1977) 13= 8 CLR=20 283 referred to=20

Scarcella v Morgan [1962] VR 201 referred to=20

Shop Distributive and Allied Employees Association v Minister = for=20 Industrial Affairs (SA) (1995) 18= 3 CLR=20 552 referred to=20

Thorp v Holdsworth (1876) 3 Ch D 637 referred to=20

Tooheys Ltd v Minister for Business and Consumer Affairs = (1981) 54=20 FLR 421 referred to=20

Turner v King [1992] 1 Qd R 307 referred to=20

Tyson v Brisbane Market Freight Brokers Pty Ltd (19= 94) 68=20 ALJR 304 referred to=20

United States Tobacco Co v Minister for Consumer Affairs = (1988) 20=20 FCR 520 referred to=20

Weissensteiner v The Queen (1993) 17= 8 CLR=20 217 referred to=20

Woods v Bate (1987) 7 NSWLR 560 applied=20

Woods v Beattie, ex parte Woods [1995] 1 Qd R 343 referred = to=20

Counsel: S J English for the plaintiff=20

P J Flanagan for the first defendant=20

P J Lyons QC and P J Roney for the second defendant=20

Solicitors: Crown Solicitor for the first defendant=20

Watkins Stokes Templeton for the second defendant=20

Hearing dates: 25-26, 29-30 March 1999, 7 April 1999 and 10 = May 1999.=20

IN THE SUPREME COURT=20

OF QUEENSLAND=20

No 6318 of 1998=20

Brisbane=20

[Sharples v O'Shea & Anor]=20

BETWEEN:=20

TERRY PATRICK SHARPLES=20

Plaintiff=20

AND:=20

DESMOND J O'SHEA=20

First Defendant=20

AND:=20

PAULINE LEE HANSON as representative of=20

herself and all members of PAULINE HANSON'S=20

ONE NATION (as registered under the Electoral Act=20

1992 (Qld))=20

Second Defendant=20

REASONS FOR JUDGMENT - ATKINSON J=20

Judgment delivered 18 August 1999=20

1 Terry Sharples is an accountant who lives on the Gold Coast in = south east=20 Queensland. Prior to his involvement with the political party known as = Pauline=20 Hanson's One Nation, he had twice contested a council ward in local = government=20 elections but had never been a member of a political party. On 20 May = 1998, he=20 met with Paul Trewartha whom he believed to be the national = vice-president and=20 national secretary of Pauline Hanson's One Nation. In fact = Mr Trewartha was=20 national vice-president and national secretary of Pauline Hanson Support = Movement Inc, an incorporated association. On 22 May 1998 they = agreed that=20 Mr Sharples would stand as a candidate for Pauline Hanson's One = Nation in=20 the electorate of Burleigh and Mr Sharples filled out a membership=20 application form for Pauline Hanson's One Nation[1] and a candidate nomination application form which he = handed to=20 Mr Trewartha who faxed them to the Sydney office of Pauline = Hanson's One=20 Nation. At that time Mr Sharples intended to join the political = party for=20 whom he was standing as a candidate. Subsequently he came to the view = that he=20 had unwittingly applied to join another organisation which was a support = movement but not a political party. Mr Sharples paid = Mr Trewartha=20 $290.00 cash, being $40.00 for membership application fees and $250.00 = for=20 candidate party nomination fees. He also gave Mr Trewartha a = $250.00 cheque=20 for electoral nomination fees. He added two conditions to his = application to the=20 party:- firstly that in his electorate of Burleigh, no preferences would = be=20 given by Pauline Hanson's One Nation without Mr Sharples' written=20 agreement; and secondly, that the Electoral Commission refund to = candidates=20 would be passed on by the party to Mr Sharples at the rate of 75% = of his=20 personal campaign expenditure. Mr Trewartha also gave = Mr Sharples a=20 document which Mr Trewartha signed which was headed "Draft Only" = and which=20 read:=20

"SUBJECT: QUEENSLAND STATE ELECTION REIMBURSEMENTS REFUND OF = EXPENDITURES FOR=20 STATE CANDIDATES ACHIEVING MORE THAN 4% OF THE PRIMARY VOTE.=20

WHERE APPROPRIATE DOCUMENTATION IS SUPPLIED TO THE QUEENSLAND = ELECTORAL=20 COMMISSION VIA THE STATE ELECTORAL PARTY AGENT, MICK CHAPMAN ... BOX 246 = GYMPIE=20 4570 ... PH 0754866243 ...=20

APPROVED EXPENSES WILL BE REIMBURSED AT 75% OF CANDIDATES = [sic]=20 PERSONAL EXPENSES RELATING TO STATE CAMPAIGN.=20

ALSO, INDIVIDUAL CANDIDATES SHOULD APPOINT THEIR OWN AGENTS OT = [sic]=20 HANDLE ELECTORAL EXPENSES (WITH COPY TO MICK CHAPMAN.)"=20

2 On 22 May 1998, Mr Sharples signed an Electoral = Commission form=20 entitled "Endorsed Candidate's Consent and Declaration" stating that he = was the=20 candidate endorsed by Pauline Hanson's One Nation and nominated by the=20 registered officer of that party for the electoral district of Burleigh = and that=20 he consented to being nominated.=20

3 Mr Sharples received a membership card in the post for Pauline = Hanson's One Nation dated 4 June 1998. It showed his membership = number as=20 6227 and his branch as "Gold Coast". The card recited "Members of = Pauline=20 Hanson's One Nation are dedicated to assisting candidates endorsed by = Pauline=20 Hanson to win seats in the next Federal Election". On the reverse were = set out=20 "Pauline's Political Goals":=20

"1. To stop all immigration except that related to investment until = all=20 Australia's unemployment is solved.=20

2. To treat all Australians equally and abolish divisive and = discriminatory=20 policies, such as those related to aboriginal and multicultural affairs. =

3. To restrict foreign ownership of Australia, repeal the Native = Titles=20 Act [sic], abolish ATSIC and reverse WIK.=20

4. To restore tariff protection, revitalise Australian manufacturing = and=20 initiate financial support for small business and the rural sector.=20

5. To take positive action on such matters as taxation reform, = education,=20 health, unemployment, crime and the discrimination created by political=20 correctness."=20

The "support movement" goals were set out as follows:=20

"1. To volunteer members [sic] time to assist endorsed = candidates at=20 the next election.=20

2. To assist with letterbox drops, staffing election booths, = distributing and=20 placing election material.=20

3. To conduct fundraising activities and functions to raise funds = needed to=20 fight the next election.=20

4. To recruit new support group members and promote the benefits of = voting=20 for Pauline Hanson's One Nation.=20

5. To remain a non-political organisation which exists only to = support=20 Pauline Hanson's One Nation."=20

4 Mr Sharples stood as a candidate for the seat of Burleigh in = the=20 Queensland State Election held on 13 June 1998 and received more = than 4% of=20 the valid first preference votes polled in the electorate. He was = described on=20 the ballot paper[2] as Sharples, Terry, Pauline Hanson's One Nation. = However, he=20 had a disagreement with David Oldfield from Pauline Hanson's One Nation = about=20 the allocation of preferences. On the evening before election day=20 Mr Trewartha rang Mr Sharples to tell him that "they were = withdrawing=20 all help" and that he was "on [his] own".=20

5 On 16 June 1998 Mr Sharples caused solicitors acting on = his=20 behalf to write to Mr King of Pauline Hanson's One Nation = Queensland=20 Electoral Campaign Committee saying that Mr Sharples had spent in = excess of=20 $11,000.00 in the campaign, that he had not been paid any of his = expenses to=20 date and that he was entitled to a full reimbursement of the amount = which would=20 be paid by the Electoral Commission to the party for each primary vote = cast for=20 Mr Sharples. On 14 July 1998, Mr Sharples sent letters of = demand=20 for his election expenses to Mr Trewartha described in the address = as=20 "National Vice-President, National Secretary, Pauline Hanson's One = Nation" and=20 to Mr James described as "State Director, Pauline Hanson's One = Nation". No=20 reimbursement has been made to Mr Sharples. As a result he started=20 investigating Pauline Hanson's One Nation to determine what entity to = sue to=20 recover his electoral expenses.=20

Nature of the proceedings=20

6 This matter was commenced by writ on 10 July 1998 and was set = down for=20 trial by jury. An injunction which had been granted on 29 July 1998 = restraining the first defendant the electoral commissioner from paying = electoral=20 funding to Pauline Hanson's One Nation until the trial of the matter was = discharged on 14 August 1998 and on 2 September 1998, the = electoral=20 commission paid $225,071.07 and on 25 September 1998, = $273,566.24 in=20 public funding to Pauline Hanson's One Nation after a decision in the = Court of=20 Appeal on 9 September 1998. That matter was not further pursued on = the=20 trial of the action.=20

7 Immediately before the date on which the trial was to commence, the = plaintiff sought and was granted leave on 22 March 1999 to amend = his case=20 so that it became an application to review under s.180 of the = Electoral Act= =20 1992 (Qld). That section provides as follows:=20

"Review of certain decisions=20

180.(1) The decisions set out in the following table are = reviewable=20 under this section if an application for review is made under this = section by=20 the person set out in the table.

Reviewable decision

Person who may apply for review

1. A decision under section=20 58(4) regarding the inclusion of a person's address in the = publicly=20 available part of an electoral roll

The person

2. A decision under section=20 65 not to amend an electoral roll to give effect to a notice = by a=20 person

The person who gave the notice

3. A decision to take action, or not to take action, under section=20 67(5) to amend the electoral rolls

The person who objected under section=20 67 to the enrolment of another person or the other person =

4. A decision under section=20 72 to register, or under section=20 73 to refuse to register, a political party

Any person affected by the decision

5. A decision under the=20 Act that a person is a special postal voter

The person

(2) An application for review of a reviewable decision must -=20

(a) be in writing; and=20

(b) be made to -=20

(i) in the case of a reviewable decision mentioned in item 4 in the = table -=20 the Supreme Court; and=20

(ii) in any other case - a Magistrates Court; and=20

(c) be made within 1 month after the decision comes to the = notice of the=20 applicant or such further period as the court allows; and=20

(d) set out the grounds on which review is sought.=20

(3) The court must review the decision and make an order -=20

(a) confirming the decision; or=20

(b) varying the decision; or=20

(4) If an application for review of a decision has been made = to a=20 Magistrates Court, a party to the application or the Attorney-General = may,=20 before or at any stage during the hearing of the application, apply to a = District Court or the Supreme Court for removal of the matter to the = court.=20

(5) The court may, by order, grant the application.=20

(6) If an application for review of a decision is required to = be made=20 to a Magistrates Court, a person who may make the application may apply = to a=20 District Court or the Supreme Court for leave to make the application to = the=20 court instead of a Magistrates Court.=20

(7) The court may, by order, grant the leave.=20

(8) The Supreme Court or a District Court is to be constituted = by a=20 single judge for the purposes of this section.=20

(9) The Magistrates Court is to be constituted by a = stipendiary=20 magistrate for the purposes of this section."=20

This is the review of a reviewable decision under subsection 180(1) = item 4=20 i.e. a decision pursuant to s.72=20 to register a political party.[3] Such an application for review can only be made to = the Supreme=20 Court constituted by a single judge. Accordingly the plaintiff withdrew = his=20 request for a jury. The plaintiff has set out his grounds on which = review is=20 sought in his statement of claim and it is only those grounds as = particularised=20 which will be considered,[4] i.e. that the procedure required by law to be = observed in=20 relation to the making of the decision was not observed; that the making = of the=20 decision was an improper exercise of the power conferred by the Ele= ctoral=20 Act 1992 under which it was purported to be made; that the = decision=20 involved an error of law; that the decision was induced or affected by = fraud or=20 misrepresentation;[5] and that the decision was otherwise contrary to law. =

8 The application for registration falls to be determined by the = Electoral=20 Commission of Queensland ("the commission") under s.72=20 of the Electoral Act= =20 1992 which provides:=20

"Registration=20

72.(1) If the commission, after considering all statements and = replies=20 to the statements under section=20 71, is satisfied that the application complies with the requirements = of section=20 70, the commission must, subject to subsection (3) and section=20 73, register the political party.=20

(2) Registration is effected by entering or otherwise = including in the=20 register of political parties -=20

(a) the information set out in the application (other than under section=20 70(4)(e)); and=20

(b) any document accompanying the application as required by section=20 70(4)(f) and (g).=20

(3) The commission must not take any action in relation to the = application during the election period in relation to an election.=20

(4) The commission must not register a political party other = than in=20 accordance with this section.=20

(5) On registration of the political party, the person whose = name was=20 set out in the application under section=20 70(4)(c) becomes the party's registered officer for the purposes of = this = Act.=20

(6) As soon as possible after it registers the political = party, the=20 commission must -=20

(a) give written notice to the registered officer that it has done = so; and=20

(b) if any person made a statement to the commission under section=20 71 in relation to the application - give written notice to the = person=20 stating that it has registered the party and setting out why the reasons = in the=20 person's statement were rejected; and=20

The commission in this Part of the = Act is=20 constituted solely by the electoral commissioner ("the commissioner"),=20 Mr O'Shea, the first defendant in this matter.[6]=20

9 The commissioner must not register a political party otherwise than = in=20 accordance with the procedures set out in s.72.=20 If the commissioner, after following those procedures, is satisfied that = the=20 applicant complies with s.70,=20 the commissioner, subject to subs.72(3) and s.73,=20 must register the political party. The commissioner, in addition, has a=20 discretion to refuse the registration of a political party given by s.73=20 of the Ele= ctoral=20 Act 1992 which provides:=20

"Refusal of registration=20

73.(1) In this section -=20

"application name" means a name for a political party, or the=20 abbreviation of the name for a political party, set out in the party's=20 application for registration.=20

"party body name" means the name, or an abbreviation or = acronym of the=20 name, of a prominent public body.=20

"party name" means the name, or an abbreviation or acronym of = the=20 name, of a parliamentary party or registered political party.=20

(2) The commission may refuse to register a political party if = the=20 commission believes on reasonable grounds that information set out in, = or=20 documents required to accompany, the application are incorrect.=20

(3) The commission must refuse to register a political party = if the=20 party's application name -=20

(a) has more than 6 words; or=20

(b) is obscene or offensive; or=20

(d) so nearly resembles a party name that it is likely to be confused = with or=20 mistaken for the party name; or=20

(e) includes the word `independent'; or=20

(f) would otherwise be likely to cause confusion if registered.=20

(4) The commission may refuse to register a political party if = the=20 party's application name -=20

(a) is a public body name; or=20

(b) so nearly resembles a public body name that it is likely to be = confused=20 with or mistaken for the public body name.=20

(5) If the commission decides to refuse an application, it = must give=20 the person who was to be the registered officer of the political party = written=20 notice of -=20

(a) the refusal; and=20

(b) the reasons for the refusal; and=20

10 Section=20 70 sets out what is required to be contained in an application for=20 registration as follows:=20

"Applications for registration=20

70.(1) An application for registration of a political party is = to be=20 made in accordance with this section.=20

(2) The application must only be made for the registration of = a=20 registrable political party.=20

(3) The application must be made by the secretary of the = party.=20

(4) The application must be made to the commission in a form = approved=20 by the commission for the purposes of this section, and must -=20

(a) state a name for the political party; and=20

(b) if the political party wishes to use an abbreviation of its name = on=20 ballot papers for elections - set out the abbreviation; and=20

(c) set out the name and address of the person who is to be the = political=20 party's registered officer for the purposes of this = Act;=20 and=20

(d) if the application is for a Queensland parliamentary party - set = out the=20 name of 1 member of the party who is a member of the Legislative = Assembly;=20 and=20

(e) if the application is for a party that is not a Queensland = parliamentary=20 party - set out the names and addresses of 500 members of the party who = are=20 electors; and=20

(f) be accompanied by a copy of the party's constitution; and=20

(g) set out any other prescribed information and be accompanied by a = copy of=20 any other prescribed document."=20

A "registrable political party"[7] is an organisation whose object or activity, or one = of whose=20 objects or activities, is the promotion of the election to the = Legislative=20 Assembly of a candidate or candidates endorsed by it or by a body or=20 organisation of which it forms a part, that either is a parliamentary = party or=20 has at least 500 members who are electors and is established on the = basis of a=20 written constitution (however described) that sets out the aims of the = party.=20

11 Ms Hanson who was the person named as the party's registered = officer=20 in the application for registration by Pauline Hanson's One Nation = pursuant to=20 subs.70(4)(c) is the second defendant in this matter in her capacity as=20 representative of herself and all members of Pauline Hanson's One Nation = (as=20 registered under the Ele= ctoral=20 Act 1992 (Qld)).=20

12 After an application for registration is made, the commissioner = must give=20 members of the public the opportunity to object to the registration of = the=20 party. The procedure for doing so is set out in s.71 of=20 the Electoral Act= =20 1992:=20

"Publication of notice of application=20

71.(1) As soon as practicable after an application is made to = the=20 commission, the commission must publish a notice in relation to the = application=20 in -=20

(a) the gazette; and=20

(b) a newspaper circulating generally in the State.=20

(2) The notice must -=20

(a) set out the information included in the application under section=20 70(4)(a) to (c); and=20

(b) invite any persons who believe that the application -=20

(i) is not in accordance with section=20 70; or=20

(ii) should be refused under section=20 73;=20

to submit to the commission, within 1 month after the day of = publication=20 of the gazette notice, a statement under subsection (3).=20

(3) The statement must -=20

(a) set out in detail the grounds for the belief; and=20

(b) set out the address of the person; and=20

(4) The commission must make the statement available at its = office for=20 public inspection, without fee.=20

(5) The commission must give the person who is to be the = party's=20 registered officer -=20

(a) a copy of the statement; and=20

(b) a notice inviting the person to give the commission a reply to = the=20 statement within such reasonable period as is specified in the notice.=20

(6) If the person gives the commission a reply within the = period, the=20 commission must, as soon as practicable, make the reply available at its = office=20 for public inspection, without fee."=20

13 The system of registration of political parties in Queensland was=20 recommended by the Electoral and Administrative Review Commission = ("EARC") in=20 its report "The Review of the Elections Act 1983-1991 and Related = Matters"[8] ("the EARC Report"). The EARC Report and the = implementation of=20 its recommendations recognise the important role of political parties in = the=20 public life of the State and underscore the political neutrality[9] of the commissioner in overseeing the registration = and funding=20 of political parties. The EARC Report observes:=20

"Registration of political parties and candidates is a process = whereby the=20 central role of parties and candidates is given a more official = electoral=20 status. This formal recognition enables the electoral system to confer = certain=20 privileges and benefits on parties, candidates and electors. At the same = time it=20 provides a means of achieving greater accountability in the electoral = system."[10]=20

"The registration process is designed to confer a level of electoral = status=20 and official recognition on a political party."[11]=20

Once a political party is registered the details of the party are = entered=20 into a public register of registered political parties,[12] the party may nominate its candidates centrally[13] and thereby is entitled to have the name of the = party or the=20 abbreviation thereof after the candidate's name on ballot papers,[14] the party is entitled to public funding rather = than the=20 individual candidates,[15] and the party is required to lodge an annual = return of=20 receipts and expenditure.[16]=20

14 Section 180 of the Ele= ctoral=20 Act 1992 makes the decision to register a political party = judicially=20 reviewable. However the statutory recognition of political parties also = means=20 that other matters such as disputes concerning the rules of registered = political=20 parties are justiciable.[17] As Dowsett J observed in Baldwin v = Everingham,[18] referring to registration of political parties = under the=20 Commonwealth Electoral Act:=20

"the Commonwealth Parliament, in conferring legislative recognition = upon=20 political parties has taken them beyond the ambit of mere voluntary=20 associations".=20

The same applies to political parties registered under the Queensland = Ele= ctoral=20 Act 1992. Their rules are more than just a matter between the = members of=20 the political party as those rules are required to be registered.[19] There is now a significant public interest in the=20 enforcement of the rules of registered political parties.[20]=20

Registration of Pauline Hanson's One Nation=20

15 The question of substance to be determined in this matter is = whether or=20 not Pauline Hanson's One Nation was properly registered as a political = party=20 under the Ele= ctoral=20 Act 1992. In the grounds of review as particularised the = plaintiff=20 essentially relies on three matters, and perhaps a fourth, to challenge = the=20 party's compliance with the requirements of the Electoral Act= =20 1992. The first three are that it did not have 500 members who were = enrolled=20 as electors in the State of Queensland;[21] that it did not have as one of its aims and = objectives the=20 election of candidates to the Queensland Legislative Assembly;[22] and thirdly, that the person who signed as = secretary of the=20 party was not in fact the secretary of the party.[23] The fourth consideration, which was not vigorously = pursued=20 at trial because of a lack of evidence, was that the political party's=20 registered officer, Ms Hanson, did not give her correct residential = address=20 as her address as required.[24] There is, however, no statutory requirement to = give a=20 residential address. The plaintiff says that the second defendant, its = servants=20 and agents, knew that its application for registration did not comply = with the=20 requirements of the Ele= ctoral=20 Act 1992 and obtained its registration by fraud or = misrepresentation.=20

16 In order to determine the questions of standing, extension of time = and the=20 merits of the action, it is necessary to look at the history of Pauline = Hanson's=20 One Nation and the organisations which were formed and how the plaintiff = came to=20 form the view that it had failed to satisfy any or all of the matters = referred=20 to above. This has necessitated a careful examination and evaluation of = all of=20 the evidence before the Court and any inferences that might properly be = drawn.=20 There are facts which are difficult to reconcile with one another and = the rules=20 of the party,[25] whether because of a lack of transparency or lack = of care in=20 drawing up the rules or in statements made, but the Court's role is to = examine=20 the evidence and come to a determination about the matters raised before = it.[26]=20

Standing of the plaintiff=20

17 For the reasons given by Gibbs CJ in Onus v Alcoa of Australia=20 Ltd,[27] I considered it appropriate to proceed to hear = this case on=20 its merits before determining the question of standing.=20

18 While it is important to guard against vexatious and illegitimate=20 litigation, it is equally important not to unnecessarily deny those with = a real=20 interest in a question which also has great public interest from = litigating such=20 an issue on what might be seen as technical grounds. In Bateman's Bay = Land=20 Council v Aboriginal Fund,[28] the High Court referred with approval to the = warning given=20 by Brennan J in Onus v Alcoa[29] that to deny standing may be to "deny to an = important=20 category of modern public statutory duties an effective procedure for = curial=20 enforcement." The courts have attempted to reconcile these competing=20 considerations by developing a flexible rule that a plaintiff has = standing to=20 prevent the violation of a public right if he or she has an interest in = the=20 subject matter beyond that of other members of the public.[30] As the High Court observed in Bateman's Bay = Land Council=20 v Aboriginal Fund:[31]=20

"Reasons of history and the exigencies of present times indicate that = this=20 criterion is to be construed as an enabling, not a restrictive, = procedural=20 stipulation."=20

19 The plaintiff's standing in this case is determined by whether he = is a=20 person affected[32] by the decision to register the political party.[33] This criterion of standing should not be given a = narrow=20 construction.[34] The legislation, in terms, gives a right to a = person=20 affected to seek judicial review of a decision in addition to the public = objection procedure in s.71 of the Ele= ctoral=20 Act 1992.[35] This gives an important statutory role to the = Supreme Court=20 to exercise curial supervision of the decisions of the commissioner to = register=20 political parties.=20

20 The real interest of the plaintiff is seen in the fact that he = believed he=20 had joined the political party, Pauline Hanson's One Nation, and he had = stood as=20 a candidate for it in the State election held on 13 June 1998. The = name of=20 the party, Pauline Hanson's One Nation appeared next to his name only = because it=20 was a registered party[36] and he was endorsed by that party.[37] His expectation of a refund of his electoral = expenses was=20 based on his expectation that the political party was registered and = would=20 receive electoral funding[38] from which his expenses or a part of them would be = reimbursed. Thus his interest comes within the scope and purpose of the = statute=20 in issue because he was affected by the rights given to the political = party by=20 registration.=20

21 Mr Sharples has never resigned from the party believing that = it was=20 unnecessary in view of his belief that he did not become a member in the = first=20 place. On 17 February 1999 Mr Sharples received written notice = of the=20 forthcoming Annual General Meeting of Pauline Hanson's One Nation to be = held on=20 28 February 1999 at the Rooty Hill RSL in Sydney. He showed his = membership=20 card but Mr Ettridge said words to the effect "that's just a bit of = paper=20 with your name on it" and he was refused entry to the Annual General = Meeting.=20 Mr Sharples gave evidence that Mr Ettridge said to him that he = had=20 never been "a member of the party Pauline Hanson's One Nation". Although = Mr Sharples had it put to him in cross-examination that = Mr Ettridge=20 had not made these statements to him Mr Sharples was unshaken in = his=20 evidence. On the other hand Mr Ettridge failed to give any = evidence. In all=20 of the circumstances, I prefer Mr Sharples' recollection of the=20 conversation. No reason was put forward by the second defendant as to = why=20 Mr Sharples' application for membership might have been dealt with = any=20 differently from any other application for membership when he applied to = join.=20

22 Although Mr Sharples' credit was undermined by the fact that = he gave=20 oral evidence at the hearing about an indemnity from Mr Abbott MHR = which=20 apparently contradicted oral evidence given by him before Ambrose J on=20 21 September 1998 to the effect that he had not had any discussion = with=20 Mr Abbott about Mr Abbott's providing an indemnity for this = action or=20 any action he may bring, none of these findings are thrown into doubt by = that=20 and I have not been required to make any finding about whether or not = there was=20 an indemnity given by Mr Abbott MHR to the plaintiff for his = costs in=20 this action.=20

23 All of this seems to represent sufficient standing to challenge = the=20 registration of a party which was registered only a few months before=20 Mr Sharples was issued with a membership card and became a = candidate for=20 Pauline Hanson's One Nation in the first State election after its = registration=20 as a State party. The question is whether he has standing when he = commenced the=20 action not whether he had standing at the time registration was effected = on=20 4 December 1997. The matters which give him standing directly = relate to the=20 objects of the legislation and the consequences that flow to a political = party=20 from registration.[39]=20

24 A decision that the plaintiff has standing is consistent with the = view=20 taken of standing by the Administrative Appeals Tribunal, constituted by = the=20 President Mathews J and Deputy Presidents Beaumont and Hill JJ = in=20 Re Williams and Australian Electoral Commission[40] with regard to the equivalent section[41] of the Co= mmonwealth=20 Electoral Act 1918 that membership of the party or a related = party is=20 sufficient to give standing to challenge a decision made under the=20 Commonwealth Electoral Act to change the name of the registered = officer=20 of the Greens Party. The plaintiff in that case was a person affected by = the=20 decision because, in the event of an election, any member of a political = party=20 which was related to the Greens would have had a legitimate interest in = ensuring=20 that any nomination of candidates to represent the Greens should be made = by a=20 person who was validly appointed to perform the function of registered = officer.=20

Extension of time=20

25 The time within which an applicant must make an application for = review is=20 one month after the decision comes to his or her notice or such further = period=20 as the Court allows.[42] This discretion is unfettered but must be = exercised=20 judicially according to the circumstances of the case. The onus is on = the=20 applicant to show that time should be extended as the presumption is = that it=20 should not. As Moynihan J observed in Kuku Djungan Aboriginal = Corporation v=20 Christensen:[43]=20

"It seems to me that, prima facie, proceedings commenced outside the=20 limitation period ought not to be entertained unless the applicant shows = an=20 acceptable explanation of the delay and that it would be fair and = equitable in=20 the circumstances to extend the time. Such considerations, in cases such = as the=20 present, extend beyond considerations applying as between the applicant = and the=20 respondent and to include a wider public interest. The same may be said = of=20 considerations of prejudice to the respondent and others consequent on = the delay=20 in bringing the application."=20

Although it was immediately before trial that the matter was = reconstituted as=20 an application for review, the matter was commenced by writ of summons = on 10=20 July 1998, seeking, inter alia, "a declaration that Pauline Hanson's One = Nation=20 is not a validly registered party pursuant to the Ele= ctoral=20 Act 1992 (Qld)".=20

26 From the time of delivery of the original statement of claim on=20 14 September 1998 it was apparent that the matter was similar to an = application to review. Leave was given to so amend the statement of = claim=20 without objection on 25 March 1999. On the same date a request for = further=20 and better particulars by the first defendant, the particulars given in = response=20 by the plaintiff, and by leave amended defences of the first and second = defences=20 were tendered.=20

27 The time that the decision to register the party was made was=20 4 December 1997. The applicant must seek an order to review within = one=20 month after the decision comes to his or her notice or such further = period as=20 the court allows. Mr Sharples' uncontradicted evidence, which I = accept, was=20 that he knew from late April or early May 1998 that Pauline Hanson's One = Nation=20 was fielding candidates in the forthcoming State Election. That election = was=20 held on 13 June 1998. He gave evidence that if he had thought about = it he=20 would have understood that some registration process had occurred, but = he did=20 not think about it. He had not seen the relevant advertisements in the=20 "Courier-Mail" or the "Queensland Government Gazette". It could be said = that he=20 knew of the decision at least constructively to register the party on=20 20 May 1998 when he met Mr Trewartha.=20

28 On 3 July 1998, after he had recovered from the aftermath of = the=20 State Election campaign, Mr Sharples contacted the commission to = obtain a=20 copy of the constitution that had been submitted by Pauline Hanson's One = Nation.=20 It was only then that the court can be certain that he had actual = notice[44] that the party was registered under the Ele= ctoral=20 Act 1992. On 7 July 1998, Mr Sharples wrote to = Mr O'Shea=20 about the registration of Pauline Hanson's One Nation. This letter which = was=20 drafted by Tom Bradley, a solicitor, advised the commissioner of the = following=20 matters which Mr Sharples believed to be true:=20

"=B7 Mr Briggs was involved in preparing the application for = registration=20 of Pauline Hanson's One Nation Party as a political party under the = Electoral=20 Act in September 1997.=20

=B7 The body for which Mr Briggs believed the application was = being=20 prepared (and which he believed was seeking registration as a political = party)=20 was the Pauline Hanson Support Movement Inc, an association incorporated = under=20 the Associations Incorporation Act (Qld) and now known as the = Pauline=20 Hanson One Nation Members Inc.=20

=B7 Mr Briggs supplied a copy of the constitution of the Pauline = Hanson=20 Support Movement Inc and the names and addresses of 530 members of that=20 association for inclusion in the application.=20

=B7 Before the application was submitted to the Commission, the = constitution of=20 the organisation known as Pauline Hanson's One Nation was substituted = for the=20 constitution of the Pauline Hanson Support Movement Inc. (I have = obtained a copy=20 of the constitution of the Queensland registered party from your office = and can=20 confirm that this is not the constitution of the Pauline Hanson Support = Movement=20 Inc.)=20

=B7 The persons whose names and addresses Mr Briggs supplied for = inclusion=20 in the application were not members of the organisation known as Pauline = Hanson's One Nation.=20

=B7 The Pauline Hanson Support Movement Inc is not part of the = organisation=20 known as Pauline Hanson's One Nation.=20

=B7 The Pauline Hanson Support Movement Inc and the body known as = Pauline=20 Hanson's One Nation are not both parts of the same political party.=20

=B7 The constitution of the Pauline Hanson Support Movement Inc (a = copy of=20 which is enclosed) does not include as an object or activity the = promotion of=20 the election to the Legislative Assembly of Queensland of a candidate or = candidates endorsed by it (or by a body of which it forms a part).=20

=B7 According to Mr Briggs, at the time of the application, the = only=20 members of the organisation known as Pauline Hanson's One Nation were=20 Mrs Hanson, Mr David Oldfield and Mr David Ettridge.=20

=B7 The persons who responded to the Commission's survey were not = supplied with=20 a copy of the constitution lodged as part of the application. They = answered the=20 Commission's question in ignorance of the identity of the entity whose=20 constitution had been lodged. Like Mr Briggs they assumed that the=20 organisation seeking registration was the one they had joined, namely = the=20 Pauline Hanson Support Movement Inc.=20

=B7 The applicant represented to the Commission that the 530 persons = whose=20 names and addresses were included in the application were members of the = organisation known as Pauline Hanson's One Nation. In fact, the 530 = persons=20 whose names were used in the application, were not members (and are not = members)=20 of the entity whose constitution was submitted. They have no rights = under that=20 constitution to take any part in the affairs of the body which has = become the=20 registered political party under the Electoral Act.=20

=B7 The person or persons responsible for the substitution of = constitutions in=20 the application intentionally deceived the Commission for the purpose of = obtaining registration as a political party, contrary to the Act, for an = organisation which at the time, according to Mr Briggs, had only = three=20 members and no Queensland parliamentary representative."=20

In the circumstances, he submitted to the commissioner that there = were=20 reasonable grounds for the Commissioner to suspect that the registration = of=20 Pauline Hanson's One Nation had been obtained by misrepresentation or = fraud. He=20 sought an investigation by the commissioner and requested the = cancellation of=20 the registration of Pauline Hanson's One Nation under s.75 of the = Electoral=20 Act if the commissioner was so satisfied.=20

29 The commissioner took the view that the Ele= ctoral=20 Act 1992 did not expressly empower him to make such an = investigation.=20 However Mr O'Shea sent a copy of Mr Sharples' letter to Peter = James as=20 the Deputy Registered Officer of Pauline Hanson's One Nation and asked = for his=20 response in writing at the earliest opportunity.=20

30 On the following day, Mr Sharples wrote to the commissioner = saying=20 that he noted from a press report in that morning's "Courier-Mail" that = the=20 commissioner was still of the opinion that:=20

" `there are no reasonable grounds for consideration of cancelling' = (the=20 current registration of the political party known as Pauline Hanson's = One=20 Nation, `One Nation')."=20

He asked for a written response to his letter of the previous day and = advised=20 that he and other One Nation candidates in the state election would be = applying=20 to the Supreme Court as soon as practicable for a Mareva injunction to = restrain=20 the commissioner from paying the election funding reimbursement the = subject of=20 ss.294 and 294A of the Ele= ctoral=20 Act 1992 to the party's registered agent, Ms Hanson. On = 8 July=20 1998, Mr O'Shea rang Mr James who denied Mr Sharples'=20 allegations. By letter dated 9 July 1998, Mr O'Shea wrote to=20 Mr Sharples saying that careful consideration had been given to the = issues=20 he had raised. However, he was satisfied that the registration was made = in=20 accordance with the provisions of the Electoral Act= =20 1992. Furthermore, he was not satisfied on reasonable grounds that = the=20 commission should cancel the registration of the party. On 10 July 1998, = Mr James said that none of the accusations in Mr Sharples' = letter of=20 7 July were valid.=20

31 On 13 July 1998, Mr Sharples attended the hearing of a = chamber=20 application where he was represented by Paul Everingham & Co and AJH = Morris=20 QC where an undertaking was given by the first defendant not to make any = payment=20 of monies pursuant to Part 7 of the Ele= ctoral=20 Act 1992 until the hearing of the application. On 27 July = 1998,=20 counsel on behalf of the plaintiff stated to the Court the plaintiff was =

"not challenging the decision of the Electoral Commissioner, = Mr Desmond=20 O'Shea to register Pauline Hanson's One Nation as a political party = pursuant to=20 the Ele= ctoral=20 Act 1992 (Qld) nor the decision of the Electoral Commissioner = not to=20 cancel the registration of Pauline Hanson's One Nation."=20

However on a further hearing before Ambrose J on 21 August = 1998,=20 the plaintiff stated that the concession was made without his knowledge = or=20 authority and that challenging the Electoral Commission was exactly what = he was=20 all about.[45] The reasons for judgment of Ambrose J on = 31 August=20 1998 show that the plaintiff's claim was that the registration of the = political=20 party on behalf of the second defendant was obtained by fraud or=20 misrepresentation. On 5 August 1998, he had terminated the services = of Paul=20 Everingham & Co and was a litigant in person until represented by=20 Mr English of counsel immediately prior to the commencement of the = trial.=20

32 It may be relevant to the notice the second defendants had of the=20 allegations to observe that the defendants to this application were = respondents=20 to an application apparently filed on 27 August 1998 by Barbara = Hazleton=20 and amended pursuant to an order of this court made on 31 August = 1998 to=20 add the original second defendant in this matter as the second = respondent in=20 that application. That application sought an order to review the = decision made=20 by the commissioner to register Pauline Hanson's One Nation as a = political party=20 on the grounds that the application to register it as a political party = did not=20 set out the names and addresses of 500 members of the party who were = electors of=20 Queensland but instead set out the names of and addresses of members of = another=20 legal entity, Pauline Hanson's Support Movement Inc; and that the = application=20 was not made by the secretary of the political party.=20

33 The factors[46] which should be taken into account by the court in = determining whether or not to allow a further period in which to = commence an=20 order for review are whether there is an adequate or acceptable = explanation for=20 any delay in commencing proceedings and any prejudice to the respondents = or to=20 third parties or to the public interest by the delay in commencing = proceedings.=20 Inevitably the merits of the application will be taken into account. In = the end=20 the court must give due weight to these matters and consider whether it = is fair=20 and equitable in all of the circumstances to exercise its discretion to = extend=20 the time.[47] In this case, Mr Sharples engaged solicitors, = Paul=20 Everingham & Co who retained AJH Morris of Queen's Counsel to = advise.[48] It is hardly surprising that he relied upon their = advice as=20 to the manner in which the proceedings should be constituted. There can = be no=20 real suggestion that the plaintiff slept on his rights. There is an = adequate=20 explanation for any delay in commencing proceedings.=20

34 No real prejudice to either defendant can be attributed to the = delay. The=20 writ was commenced before the payment of electoral funding to Pauline = Hanson's=20 One Nation and in any event that payment has been made. There is = therefore no=20 financial prejudice alleged. If the payment was induced by fraud or=20 misrepresentation, then its repayment by the second defendant could not = amount=20 to relevant prejudice. It should be noted, however, that no such = repayment was=20 sought in these proceedings.=20

35 It was submitted that the application could have been brought = before the=20 State election on 13 June 1998, where eleven candidates nominated = by=20 Pauline Hanson's One Nation were elected to the Legislative Assembly and = almost=20 440,000 voters[49] gave candidates nominated by Pauline Hanson's One = Nation=20 their first preference vote. However as was conceded by all the parties, = the=20 decision in this case cannot affect the validity of that election and so = there=20 is no relevant prejudice caused by delay to the second defendant. The = only way=20 an election may be disputed is by petition to the Court of Disputed = Returns in=20 accordance with Part 8 of the Ele= ctoral=20 Act 1992 and in no other way. If there was relevant prejudice to = others,=20 it was caused by the registration and not by any delay in seeking = relief.=20

36 I am therefore persuaded that I should extend the time to the = extent=20 necessary to allow the plaintiff to bring this application.=20

Objections to evidence=20

37 Careful submissions by the defendants were made about the = limitations of=20 the pleadings in this case. The plaintiff has struggled to articulate = his case=20 clearly. A party is limited by its pleading in the conduct of its case = unless=20 the parties have deliberately chosen some other basis for the = determination of=20 their respective rights and liabilities.[50] There was no acquiescence in any departure from = the=20 plaintiff's pleaded case by either the first or the second defendant = except to=20 any limited extent that can be deduced from their submissions to the = Court.=20

38 In the end, in spite of the inadequacy of the pleadings, it would = appear=20 that the parties were able to put before the court the relevant issues = for=20 determination. It is not necessary to consider the objections to the = evidence in=20 great detail. Many objections to the form in which evidence was led by = the=20 plaintiff were raised during the course of the trial; the plaintiff = almost=20 invariably conceded that the evidence was in inadmissible form and the=20 objections were allowed. As to the objections as to relevance, this = judgment=20 deals with the matters which I considered relevant on the pleadings. The = statement of claim was amended to plead in accordance with the opening = by the=20 plaintiff of his case. It is important that arguments about pleadings = should=20 illuminate rather than obfuscate the real issues for determination.=20

Questions before the court=20

39 When the grounds of review, the particulars and the evidence are = analysed,=20 the three major questions which initially fall for determination are:=20

1. Did the written constitution lodged by Pauline Hanson's One Nation = satisfy=20 the requirements of the Ele= ctoral=20 Act 1992?=20

2. Did the secretary of the party sign the application for = registration?=20

3. Did the entity known as "Pauline Hanson's One Nation" have 500 = members=20 eligible to be electors in the State of Queensland when it applied for=20 registration?[51]=20

Did the written constitution lodged by Pauline Hanson's One Nation = satisfy=20 the requirements of the Ele= ctoral=20 Act 1992?=20

40 A subsidiary question to this is did Pauline Hanson's One Nation = have as=20 an object or activity the election of candidates to the Queensland = parliament?=20

41 A political party is required to include a copy of its = constitution with=20 its application for registration.[52] Only a registrable political party is eligible for = registration.[53] The definition of "registrable political party"[54] provides that such a party must be an organisation = which is=20 established on the basis of a written constitution (however described) = that sets=20 out the aims of the party. An object or activity of the political party = must be=20 the promotion of the election to the Legislative Assembly of a candidate = or=20 candidates endorsed by the organisation or a body or organisation of = which it=20 forms a part.=20

42 This legislation gives effect to a recommendation contained in the = EARC=20 Report:=20

"... Commonwealth legislation (s.126(2) of the CE Act) and most other = States=20 require that political parties have a written constitution and a = statement of=20 party objectives which is submitted with the application for = registration.=20 [EARC] believes that the Queensland system should also seek such = documents from=20 applicants for registration. They are a measure of the organisation's = commitment=20 to the task of seeking election."[55]=20

EARC noted that all electoral administrations in Australia with = registration=20 requirements asked for a copy of the constitution or rules governing the = operations of the party.=20

43 A requirement therefore of an organisation seeking registration as = a=20 political party is that:-=20

(1) The organisation must have a written constitution; and=20

(2) A copy of the=20 Constitution must be included with the application for registration; = and=20

(3) The Constitution must set out the aims of the party; and=20

(4) Either (a) an object of the organisation; or=20

(b) an activity of the organisation=20

must be the promotion of the election to the Legislative Assembly of = a=20 candidate or candidates endorsed by the organisation or a body or = organisation=20 of which it forms a part.=20

The Ele= ctoral=20 Act 1992 does not in terms require that the constitution set out = as one=20 of the aims of the party that it seeks to have candidates elected to the = Legislative Assembly. So long as the organisation has a written = constitution=20 which contains whatever aims it has, it is sufficient if the promotion = of the=20 election of its candidates to the Legislative Assembly is one of its = activities.=20

44 The plaintiff alleged that the commissioner allowed the first page = of the=20 constitution which was originally lodged to be replaced by a new page.=20 Mr O'Shea gave evidence in this case which I am able to accept in = its=20 entirety. He impressed me as a person who has acted throughout this = matter in a=20 thoroughly professional, ethical and neutral manner.=20

45 It appears that on 13 October 1997, Mr O'Shea, the = commissioner,=20 received a phone call from Mr Ettridge who identified himself as an = adviser=20 to Ms Hanson and inquired whether an application had been received. = Mr O'Shea informed him that an application had been made to = register a=20 party called One Nation of Queensland. Mr Ettridge told = Mr O'Shea that=20 the application was made without the knowledge or consent of Pauline = Hanson or=20 her political organisation. Mr Ettridge said that the Pauline = Hanson's One=20 Nation party was registered under the provisions of the Co= mmonwealth=20 Electoral Act 1918 and that a company was incorporated to = operate=20 nationally with the name Pauline Hanson's One Nation Ltd. = Mr Ettridge=20 indicated that he would vigorously defend their interest in the name = "One=20 Nation".=20

46 Later on the same day, Ms Hanson called in to the = Commission's office=20 and said that the persons who filed the application did so without her = knowledge=20 and consent and she claimed that the list of members was in fact a list = of=20 members of her party. The party applying for registration was not her = party. She=20 advised Mr O'Shea that she would be seeking to register her party = under the=20 provisions of the Ele= ctoral=20 Act 1992.=20

47 On 15 October 1997 Ms Hanson personally attended the=20 commissioner's Brisbane office and lodged an application to register a = political=20 party called Pauline Hanson's One Nation. Those documents were = personally=20 received by Mr O'Shea. The application was accompanied by what = appeared to=20 be a list of members containing more than 1000 names and addresses and = other=20 relevant details and a document entitled "Constitution & Model = Rules".=20

48 On 16 October 1997 Mr O'Shea wrote to Ms Hanson=20 acknowledging receipt of her application and apologising for not = noticing that=20 she had not signed the relevant forms. It was also noted that the = constitution=20 submitted provided for the party to endorse candidates for the Senate = and House=20 of Representatives. His letter informed Ms Hanson that it would be=20 necessary to amend the constitution to also provide for endorsement of=20 candidates for the Legislative Assembly of Queensland. It appears that = at the=20 time the application was first made to register the political party in=20 Queensland, there was no organisation then able to be registered as a = political=20 party in Queensland as there was no organisation whose object or = activity, or=20 one of whose objects or activities was the promotion of the election of=20 candidates endorsed by it to the Legislative Assembly.=20

49 Mr O'Shea telephoned Ms Hanson during the afternoon of=20 15 October 1997 and informed her of those matters. These matters = had been=20 brought to his attention by Donald Schultz, a senior elections officer = and a=20 member of his staff whom he had requested to consult with Ms Libby = Gladwin,=20 principal projects officer, for the purpose of determining whether the=20 provisions of the Ele= ctoral=20 Act 1992 had been complied with.=20

50 On or about 20 October 1997 Mr O'Shea received an amended = application=20 for registration signed by the proposed registered officer, = Ms Hanson, and=20 on the same date he received under cover of a letter dated = 15 October 1997=20 an amended front sheet of the constitution which was attached to the = application=20 for registration. The new front page set out the objects as follows:=20

"The objects for which the association is established are:=20

To support Pauline Hanson's efforts to bring about the necessary = changes for=20 fair and equal treatment of all Australians, within a system of = government which=20 recognises and acts upon a need for all Australia to be truly One = Nation."=20

The aims were said to be:=20

"To endorse persons for election as candidates to the Legislative = Assembly of=20 Queensland."=20

The front page of the constitution previously submitted contained the = same=20 objects but the aims were said to be:=20

"To endorse candidates for the Senate and House of Representatives to = support=20 Pauline Hanson in accordance with the previously stated objects."=20

Mr O'Shea gave evidence that he was surprised by the short = amount of=20 time within which the constitution had been amended as he was under the=20 impression that ordinarily constitutions provide that a constitution may = only be=20 amended at a general meeting. Accordingly he looked into the terms of = the=20 constitution and noted that cl.33 of the constitution provided that = subject to=20 the provisions of the As= sociations=20 Incorporation Act 1981, the rules may be amended by a special = resolution=20 carried at any management committee meeting. Clause 5 provides that = initially=20 the management committee should consist of only three members, the = President,=20 Vice President and Treasurer. Mr O'Shea was aware that he was = dealing with=20 an unincorporated association which appeared to have made use of the = model rules=20 prescribed under the Associations Incorporation Act. He correctly = took=20 the phrase "subject to provisions of the Associations Incorporations = Act"=20 to be meaningless because the Associations Incorporations Act = provision[56] dealing with amendment to the constitution applies = only to=20 incorporated associations. The constitution makes other meaningless = references=20 to the body being incorporated but such references cannot make an = unincorporated=20 body incorporated. It was not an incorporated body. Mr O'Shea was = therefore=20 satisfied that the constitution could be amended within the time = frame.[57]=20

51 In 1995, Mr O'Shea had sought advice from the Crown Solicitor = as to=20 how he should apply the provisions of the Electoral Act in = relation to=20 the constitutions of political parties. The advice he had received was = that=20 political parties are largely private unincorporated organisations and = therefore=20 the commission should not be delving into their internal affairs. He was = merely=20 required to satisfy himself that the constitution was adequate for the = purpose=20 of registration under the Ele= ctoral=20 Act 1992. He had in his mind that EARC had recognised that the=20 requirement for the constitution of the political party to accompany the = application was to ensure a measure of the organisation's commitment to = the task=20 of seeking election. At the time of registration of Pauline Hanson's One = Nation=20 pursuant to the Electoral Act= =20 1992, he knew that Pauline Hanson's One Nation was registered = federally with=20 the Australian Electoral Commission. Mr O'Shea also says that he = knew that=20 it was intended that candidates for Pauline Hanson's One Nation would = contest=20 the next Queensland election.=20

52 Being conscious of the fact that any member of the party or of the = public=20 could make a submission to the commission on any matter of concern when = the=20 public notice was published in accordance with = s.71=20 of the Ele= ctoral=20 Act 1992, he substituted the new front page that he had received = for the=20 front page of the constitution which was attached to the application for = registration. Mr O'Shea said he thought it would be excessively=20 bureaucratic to require the rest of the pages to be produced a second = time since=20 the only change was to the front page.=20

53 There was no reason for Mr O'Shea to think that the aims and=20 objectives in the constitution had not been amended by the management = committee=20 in accordance with the constitution. However the situation was different = before=20 the court. The court has the advantage, that the commissioner did not = have, of=20 sworn evidence on which witnesses were fully cross-examined and of = further=20 documentation.=20

54 The second defendant could have given evidence to the court of a=20 constitutional change or of the election of people to the Legislative = Assembly=20 being one of the party's objectives or activities when it applied for=20 registration but chose not to do so. I would therefore be inclined to = draw the=20 inference that the second defendant was not able to do so. This was = entirely a=20 matter within the second defendant's knowledge. However, in the end, I = do not=20 regard this as a matter of great moment as clearly, shortly after the=20 application and before registration, the second defendant had as one of = its=20 activities the promotion of the election of its candidates to the = Legislative=20 Assembly. For example, on 24 October 1997, Ms Hanson issued a = news=20 release saying that Pauline Hanson's One Nation would contest the next=20 Queensland state election and was calling for candidate nominations.=20 Mr Trewartha gave evidence that on about 22 October 1997, he = had a=20 conversation with Ms Hanson where "she confirmed that we were not = going to=20 the State election". Mr Lyons QC put it to Mr Trewartha that=20 Ms Hanson was opposed to running candidates in the state election = until=20 early September but Mr Trewartha maintained that the first he knew = of her=20 change of mind was after the news release was issued. There was no = evidence of=20 any earlier time when this was an objective or activity of the party.=20

55 The plaintiff further submitted that the commissioner's act in = receiving=20 and temporarily attaching a replacement front page was in breach of the = duty of=20 the commissioner found in s.58(1)(a) of the Libraries and Archives = Act=20 1988 (Qld) to cause complete and accurate records of the activities of = the=20 public authority to be made and preserved. I am satisfied that there was = no=20 breach of s.58(1)(a) of the Libraries and Archives Act 1988. The=20 commissioner caused complete and accurate records to be kept. It is not=20 therefore necessary to consider this any further nor the specific power = to amend=20 information or replace documents given by s.74 of the Electoral Act= =20 1992.=20

Did the secretary of the party sign the application for = registration?=20

56 The allegation made by the plaintiff was that the application to = register=20 Pauline Hanson's One Nation was not made by the secretary of the party = because=20 Cheyenne Jennifer MacLeod was not the secretary of the party which was=20 registered in Queensland. The definition of `secretary' found in s.3 of = the=20 Ele= ctoral=20 Act 1992 is very broad and does not require the person to be = called the=20 secretary of the party. It provides:=20

"`secretary' of a political party means the person who holds = the=20 office (however described) whose duties involve responsibility for = carrying out=20 the administration, and dealing with the external correspondence of the = party."=20

57 The application for registration is required to be made by the = secretary=20 of the political party seeking registration.[58] EARC had received submissions supporting the = lodging of the=20 names and addresses of office bearers when a political party applied for = registration. EARC saw the value in having sufficient information so = that the=20 commission could check the eligibility of the party for registration, to = identify an accountable officer in the party, or to provide the = commission with=20 a point of contact for further dealings with the party organisation. = However=20 EARC did not recommend that the names of office bearers be supplied with = applications for registration for the following reasons:=20

"The titles of offices vary among the parties making it difficult to = define=20 in legislation which particular offices should be included in = applications.=20 There is also the problem that the persons holding the various offices = change=20 regularly and the Register would be frequently inaccurate. Only the name = of the=20 registered officer should be required since this [is] the main point of = contact=20 between the electoral administration and the party organisation."[59]=20

The requirement to nominate a registered officer, as Pauline Hanson's = One=20 Nation did, can in this context be seen as a requirement of more = substance than=20 the requirement that the application for registration be made by the = secretary=20 of the party whose identity is likely to change from time to time.=20

58 When Pauline Hanson's One Nation applied for registration under = the=20 Commonwealth Electoral Act on 12 March 1997, its secretary = was shown=20 as David Ettridge. When Pauline Hanson's One Nation applied for = registration=20 under the Queensland Electoral Act on 15 October 1997,=20 Ms MacLeod filled in and apparently signed the section entitled = "Secretary=20 of the party to complete this section". She did not, however, complete = the entry=20 which sought the "formal title of position" held by her in the party.=20

59 Barbara Hazleton who was Ms Hanson's personal secretary in = her=20 electorate worked in the same office as Ms MacLeod. She gave = evidence that=20 Ms MacLeod opened the mail and entered it on the computer, answered = the=20 telephone and banked the donations that came in for Ms Hanson.=20

60 Ms Hazleton saw the application for registration before it = left the=20 office and noticed that it was being made by Ms MacLeod. Her = evidence on=20 this was:=20

"... I thought it was funny because it had - well, `Secretary = Cheyenne=20 MacLeod' and I just - I had just had a bit of a laugh because I thought, = `Oh' -=20 to me it was obvious it would have to be made by a person who was a = secretary of=20 the party, but Cheyenne was only a secretary in the office or, you know, = a clerk=20 in the office, but I just gathered that they had just made a mistake and = thought, `Oh, well, just any secretary can make this application'."=20

61 The plaintiff has certainly raised sufficient evidence = particularly that=20 given by Barbara Hazleton to suggest that Ms MacLeod was not the = secretary=20 of the party to require an answer by the second defendant particularly = when its=20 secretary had been shown as being David Ettridge in March 1997 and there = was no=20 evidence of his removal from that position. It is clearly within the = knowledge=20 of the second defendant whether or not Ms MacLeod is the secretary = of=20 Pauline Hanson's One Nation. It would have been a simple matter for the = second=20 defendant to call her to give evidence, if it were the case that she = held that=20 position. The only evidence led was an unsigned document purporting to = be=20 minutes of a meeting of the management committee of Pauline Hanson's One = Nation=20 conducted by a telephone conversation on 13 October 1997 between=20 Ms Hanson and Mr Ettridge where it is said that the first = matter=20 raised for discussion and decision was:=20

"The need to appoint a Queensland resident as secretary for the = Electoral=20 Commission of Queensland registration. It was decided Cheyenne MacLeod = would be=20 asked to be secretary for the time being. Cheyenne accepted this = position and=20 will act as secretary in an honorary capacity until further notice."=20

Without sworn evidence by Ms Hanson, Mr Ettridge or=20 Ms MacLeod, I am unable to give this document any weight. = Accordingly I=20 would be inclined to find that Ms MacLeod was not the secretary of = the=20 party.=20

62 What does this mean in terms of its registration? There is nothing = which=20 would put the Commissioner on enquiry as to the identity of the = secretary or to=20 require him to investigate whether or not Ms MacLeod was the = secretary of=20 the party. He did not regard it as a matter of great importance. The key = contact=20 in a political party is the registered officer. The second defendant's = failure=20 to comply with this provision does not render the commissioner's = decision to=20 register invalid. As McHugh JA held in Woods v Bate:[60]=20

"In recent times the courts have shown great reluctance to invalidate = an act=20 done pursuant to a statutory provision because of the failure to comply = with an=20 antecedent condition: see Simpson v Attorney-General [1955] NZLR = 271;=20 Clayton v Heffron; Samuel Montagu & Co Ltd v Swiss Air = Transport=20 Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannan = [1971] 1=20 NSWLR 804; Attorney-General (NSW); Ex rel Franklins Stores Pty = Ltd v=20 Lizelle Pty Ltd [1977] 2 NSWLR 955 reversed on another ground = sub=20 nom Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex = rel=20 Franklins Stores Pty Ltd) (1977) 52 ALJR 218; 17 ALR 63; Tasker v = Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR = 589; 20=20 ALR 314. Speaking generally, I think that, at the present time, the = proper=20 approach is to regard a statutory requirement, expressed in positive = language,=20 as directory unless the purpose of the provision can only be achieved by = invalidating the result of any departure from it, irrespective of the=20 circumstances or resulting injustice: cf Hatton v Beaumont [1977] = 2 NSWLR=20 211 at 226 per Mahoney JA."=20

63 Similarly in Project Blue Sky Inc v Australian Broadcasting=20 Authority[61] McHugh, Gummow, Kirby and Hayne JJ considered = whether or not=20 a breach of a statutory condition rendered the exercise of a power = invalid.=20 Their Honours said:=20

"An act done in breach of a condition regulating the exercise of a = statutory=20 power is not necessarily invalid and of no effect. Whether it is depends = upon=20 whether there can be discerned a legislative purpose to invalidate any = act that=20 fails to comply with the condition. The existence of the purpose is = ascertained=20 by reference to the language of statute, its subject matter and objects, = and the=20 consequences for the parties of holding void every act done in breach of = the=20 condition. Unfortunately, a finding of purpose or no purpose in this = context=20 often reflects a contestable judgment. The cases show various factors = that have=20 proved decisive in various contexts, but they do no more than provide = guidance=20 in analogous circumstances. There is no decisive rule that can be = applied ..."[62]=20

In this case there are several reasons why the failure to provide the = correct=20 name of the secretary of party would not invalidate the subsequent = registration=20 of the party. Firstly it appears from the discussion of this matter in = the EARC=20 Report that it was not considered by EARC to be a matter of great = importance but=20 is merely a technical or logistical requirement. Secondly arguments that = the=20 technical requirements of electoral laws are mandatory as opposed to = directory=20 have generally failed.[63]=20

64 Further, a consideration of ss.74 and 75 of the Ele= ctoral=20 Act 1992[64] supports the submission that the requirement of = s.70(3) is=20 directory. Section 74 permits an application to be made to the = commissioner for=20 the amendment of the registration or the replacement of documents in the = register of political parties in relation to a registered political = party.=20 Section 75 deals with cancellation of registration of a political party. = The=20 commissioner has the discretion to cancel the registration of a = political party=20 pursuant to s.75(2) only on certain grounds. These grounds include the = question=20 whether the party has at least 500 members who are electors or whether = the=20 registration was obtained by fraud or misrepresentation. The requirement = to have=20 500 members who are electors and not to obtain registration by fraud or=20 misrepresentation, are on the other hand, mandatory matters. Subject to = the=20 exercise of the court's discretion, failure to comply with these = requirements=20 would be likely to render the commissioner's decision to register = invalid. The=20 commissioner is not given a discretion to cancel the registration of a = political=20 party because the application was not made by the secretary of the = party.=20

65 It follows that the validity of the registration of the party is = not=20 affected by the failure to state the correct name of the secretary of = the party=20 unless that amounts to fraud or misrepresentation.=20

66 In order to amount to fraud or misrepresentation one would have to = see=20 that Pauline Hanson's One Nation party or its officers had deliberately = set out=20 to deceive the commissioner. Given that there is no reason why it should = and no=20 reason put forward why the naming of Ms MacLeod as the secretary of = the=20 party is a significant matter, I am inclined to the view that it was = just a=20 convenience and not done to defraud or deceive the commissioner.[65] This is supported by the evidence of = Ms Hazleton to=20 which I have referred.=20

Did the entity known as "Pauline Hanson's One Nation" have 500 = members=20 eligible to be electors in the State of Queensland when it applied for=20 registration?=20

67 At the time it applied for registration, Pauline Hanson's One = Nation did=20 not have a member who was a member of the Legislative Assembly. = Accordingly it=20 was not a Queensland parliamentary party[66] and it was therefore required to set out the names = and=20 addresses of 500 members of the party who were electors.[67] This requirement followed a recommendation of the = EARC=20 Report made after EARC considered comparable legislation.=20

"Commonwealth legislation requires that members be `entitled to = enrolment'=20 (s.123(3)(b) of the CE Act[68]). Section 66A of the New South Wales PE & E = Act[69] requires members to be enrolled voters. The New = South Wales=20 requirement is preferable as it would simplify the process of verifying=20 membership through checking the electoral roll.=20

[EARC] is more impressed with the New South Wales definition. It is = important=20 that political parties seeking registration in Queensland should have=20 demonstrable support among Queensland electors prior to registration."[70]=20

EARC again noted that all electoral administrations in Australia with = registration requirements asked for evidence, in the case of a = non-parliamentary=20 party, that the party's membership exceeded a prescribed minimum = number.[71]=20

68 Upon proclamation of the Electoral Act in June 1992, = Mr O'Shea=20 introduced a system for checking the requirements for the registration = of=20 political parties. In particular, although he noted that the = Electoral=20 Act did not require the commissioner to conduct a survey of people = listed on=20 the list of members submitted with the application by a = non-parliamentary party=20 for registration, he introduced a procedure whereby once it had been = established=20 that at least 500 people listed on the list of members were eligible = electors, a=20 letter was sent to at least 250 of those people, chosen at random, = asking them=20 to confirm whether they were a member of the political party seeking=20 registration. Of course, such a survey could only record the state of = their=20 belief.=20

69 On 6 November 1997, Donald Schultz, a senior elections = officer in the=20 Operations Division of the commission, whose duties included = responsibility for=20 the processing of applications for the registration of political parties = in=20 Queensland, caused a letter to be sent to 250 people chosen at random = from the=20 530 names on the list provided with the application to register Pauline = Hanson's=20 One Nation who it had been determined were electors in the State of = Queensland.=20 The letter provided as follows:=20

"Re: Pauline Hanson's One Nation Party=20

Pauline Hanson, proposed Registered Officer and Cheyenne MacLeod, = Secretary=20 of the Pauline Hanson's One Nation Party, have applied to this office to = have=20 the party registered as a political party under the provisions of the = Ele= ctoral=20 Act= =20 1992.=20

To be eligible for registration the party must have at least 500 = members who=20 are electors in Queensland and the Electoral Commission must be = satisfied that=20 the party meets this criteria. We do this by undertaking a membership = check.=20

With the application for registration, the applicants submitted a = list of the=20 party's members, which included your name. Your name was selected at = random from=20 the membership list. To enable the Commission to assess the party's = eligibility=20 for registration as a political party, please complete the certification = below=20 and return this letter in the reply paid envelope to reach the = Commission by=20 03 December 1997.=20

Please note that all matters relating to members [sic] names = and=20 addresses are treated as confidential by the Commission.=20

Yours sincerely=20

for Electoral Commissioner=20

I am a member of the Pauline Hanson's One Nation Party.=20

? YES ? NO=20

Please ? the appropriate box."=20

70 On 2 December 1997 Mr O'Shea received a memorandum from=20 Mr Schultz informing him of the process that he had undertaken in = checking=20 whether there were 500 members on the list of members who were also = electors and=20 which recommended that the application by Pauline Hanson's One Nation be = approved and the party details be included in the register of political = parties,=20 that the secretary of Pauline Hanson's One Nation be notified of the = approval=20 and that a notice be published in the gazette of the approval.=20

71 The list of members attached to the application for registration = set out=20 over 1,000 names and commission staff had confirmed that at least 530 = names=20 listed on the list of members were electors on the Queensland Electoral = Roll.=20 Commission staff had sent 250 letters to persons on the list of members = which=20 yielded the following results. Letters were received from 217 people who = said=20 that they were members of Pauline Hanson's One Nation. Three letters = were=20 received from people who said they were not, four were incomplete, two = were=20 returned unclaimed and there was no response to 24 of the letters.=20

72 Christopher Bramwell gave evidence that he and his wife, Carmel = Gallagher,=20 were two of the people who did not respond. His evidence was that he = believed=20 they had joined Pauline Hanson's One Nation in April 1997. However in = June 1997=20 he was told by Ms Hanson that there was no political party = membership but=20 only membership of the support movement. Mr Bramwell gave evidence = that=20 neither he nor his wife replied to the letter from the commissioner = which asked=20 them to tick a "yes" or "no" box to the statement, "I am a member of = Pauline=20 Hanson's One Nation Party" as they "knew full well at that time from = previous=20 conversations with Pauline Hanson and David Oldfield that [they] were in = fact=20 not members of the party and that the only members of the party were = Pauline=20 Hanson, David Oldfield and David Ettridge". They threw the letter in the = bin and=20 did not contact the commissioner to alert him to their concerns.=20

73 Mr Edgeman, the director, funding and disclosure, of the = Australian=20 Electoral Commission, who was called as a witness by the plaintiff, has=20 day-to-day responsibility for the registration of political parties = under the=20 Commonwealth Ele= ctoral=20 Act. His evidence was that the Australian Electoral Commission=20 telephones a sample of the persons said to be members of a political = party. A=20 telephone contact is made to avoid instances where there are = "significant=20 non-responses to a mail survey". Prior to 1997, the Commonwealth = Electoral=20 Commission's practice was to conduct mail surveys of a sample of 200-250 = out of=20 the 500 members. The practice changed because the response rates were = sometimes=20 very low and because there was a concern that some people might deny = their=20 membership, not because they were not members, but because they were = concerned=20 that a government department was contacting them querying them about = their=20 membership of a political party.=20

74 The Australian Electoral Commission regarded a mailout response = rate of=20 75-80 per cent as a good response rate and Mr Edgeman gave evidence = that=20 the response received in this case, that is that there were 224 = responses=20 received to a mailout of 250 with 217 confirming that they were members = of the=20 party, was an excellent response.=20

75 Dr Wolff, an experienced statistician called on behalf of the = first=20 defendant, concluded that the conclusions drawn by the commissioner were = independently verifiable. He concluded in his report:=20

"In terms of statistical procedure, the Electoral Commissioner = carried out a=20 standard inference methodology thoroughly and accurately. Therefore, the = statistical methods he applied to help form a decision were sound and=20 justifiable.=20

My discussion in this report can be considered to be a secondary = analysis to=20 verify at a more detailed level the calculations of the Electoral = Commissioner.=20 Indeed, my calculations support those of the Electoral Commissioner.=20

Conclusion=20

In my opinion, there is strong evidence that there were at least 500 = members=20 of Pauline Hanson's One Nation party who were also eligible voters, = based on the=20 information in the original sample and in the raw data used by the = Electoral=20 Commissioner."=20

76 In light of the fact that there were in excess of 1,000 names on = the list=20 of members of whom at least 530 could be identified as electors in = Queensland=20 and that 217 of the 224 responses of the 250 people surveyed stated that = the=20 person was a member of Pauline Hanson's One Nation, Mr O'Shea was = satisfied=20 that there were at least 500 members of the political party seeking=20 registration. There was no reason for him to be concerned that persons = on the=20 list were not members.=20

77 The question remains as to whether those persons who believed = themselves=20 to be members of Pauline Hanson's One Nation were members of a political = party=20 of that name. The evidence on this is inconsistent and so I have had to = weigh=20 all of the evidence and assess the competing inferences in reaching my = final=20 conclusion.=20

78 It was opened by Mr English of counsel on behalf of the = plaintiff=20 that the membership application forms of the political party did not = conform=20 with the constitutional requirements. Mr English said,=20

"When one looks at the membership application form which people were = asked to=20 complete, it does not accord with the constitution for Pauline Hanson's = One=20 Nation being what the plaintiff says is the Queensland party. It says in = that=20 document at 7(3) that, `The application form for membership shall be = made in=20 writing, signed by the applicant and the applicant's proposer and = seconder shall=20 be in such form as the Management Committee from time to time = prescribes.' The=20 membership application form which was distributed at the relevant times = did not=20 comply with that provision. Bearing in mind other than the first page of = this=20 document, the remainder is identical for what the plaintiff says is the = Federal=20 party. When one looks at the immediately preceding sub-clause, the = application=20 for membership is "shall be proposed by one member of the association = and=20 seconded by another member." No such documents have been disclosed in = that=20 regard."=20

But the case pleaded by the plaintiff at that time was that people = who=20 thought they were becoming members of the political party which was = registered=20 under the Queensland Ele= ctoral=20 Act 1992 in fact became members of the political party = registered under=20 the Commonwealth Ele= ctoral=20 Act or the Supporters' Movement. The statement of claim was then = amended=20 to allege that those people did not validly become members of the = political=20 party registered under the Commonwealth Ele= ctoral=20 Act or the Ele= ctoral=20 Act 1992 because of a failure to comply with cl.7 of the = constitution.=20

79 Evidence was given by Andrew Carne, who set up the computer = databases for=20 the national office of Pauline Hanson's One Nation and who was an = original=20 subscriber to Pauline Hanson's One Nation Ltd, that between July and = September=20 1997, David Ettridge said he needed to produce a list of 500 members to = register=20 Pauline Hanson's One Nation in Queensland. Mr Carne asked him how = they=20 could use the database which included people who were not members of the = political party. Mr Ettridge said that it did not matter as "they = are only=20 public servants. They just want to see a list of names, they wouldn't = check it=20 out". This response was given in cross-examination and it was not put to = him=20 that Mr Ettridge had not made any such statement. Mr Carne = printed out=20 a full list of Queensland names which was given to Mr Ettridge who=20 apparently then lost it and asked Mr Carne to explain by telephone = to the=20 office administrator, Claire Wright, in Sydney how to extract the = Queensland=20 names from the database. There was difficulty in extracting them so the = entire=20 Australian membership database was printed out.=20

80 In June 1997, Edward Briggs joined Pauline Hanson's One Nation. = Soon=20 afterwards he had a conversation with Mr Ettridge about the Branch = starter=20 kit and the structure of Pauline Hanson One Nation Members Inc. = Mr Ettridge=20 told him that the structure had been designed with a number of = safeguards in=20 order to stop "whiteants". He said that the party was run by the = company,=20 Pauline Hanson One Nation Ltd, "which consisted of himself, Pauline = Hanson and=20 David Oldfield ... and that these people were the only members of the = party." He=20 said that Pauline Hanson Support Movement Inc was "designed to house = people who=20 wanted to support Pauline Hanson". He reiterated in a later telephone=20 conversation that the political party only had three members. I did not = find=20 Mr Briggs a particularly reliable witness although I accept his = explanation=20 for contradictions between his affidavit sworn on 13 July 1998 and = his=20 affidavit sworn on 8 September 1998 that the former was drawn up = for him by=20 a firm of solicitors in haste and signed, not sworn, by him and that = only when=20 he later took the opportunity to read it did he realise it contained = errors.=20

81 If this were the only evidence of these matters it would not be = persuasive=20 but it is consistent with the evidence of a number of other witnesses.=20 Mr Briggs held a key position as the Treasurer of the Pauline = Hanson=20 Electoral Campaign Committee from 29 November 1997 until = 28 February=20 1998 which suggests that he was likely to be knowledgeable about the=20 organisation and its structure. Mr Briggs said a list of names had = been=20 given to him by Mr Jim Stewart, the South Brisbane area = co-ordinator for=20 Pauline Hanson Support Movement Inc, who told him he had been sent them = by=20 Mr Ettridge to assist in an application to register a Queensland = political=20 party. There is objective evidence that this list, containing names of = members=20 from throughout Australia, was faxed from the national office of Pauline = Hanson's One Nation on 21 July 1997. The list is consistent with, = and=20 therefore adds credence to, the evidence given as to this list both by=20 Mr Carne and Mr Briggs. Mr Stewart asked Mr Briggs = to=20 extract the names and addresses of all Queensland members and to compile = a list=20 for the purpose of the electoral registration on 15 October 1997 of = a=20 Queensland party. It would appear that the list given to the = commissioner[72] does contain the names of Queensland members who = are found=20 in the list of Australian-wide members faxed from the Manly office on=20 21 July 1997.[73] Mr Briggs said that Mr Stewart then = added some=20 names to the list including that of Mr Briggs and that this list is = the=20 same as that produced to the commissioner.=20

82 It is necessary therefore to consider in some detail the = organisations=20 under the One Nation umbrella.=20

What are the relevant organisations?=20

83 Although a number of "members" appear to have been confused[74] about whether they joined the political party or = the support=20 movement and that confusion would appear to have been exacerbated by a = number of=20 misleading or incorrect statements made by various people apparently = with=20 knowledge and control in the organisation including Pauline Hanson, = David=20 Ettridge and David Oldfield all of whom appeared to have authority to = speak on=20 behalf of Pauline Hanson's One Nation, it appears likely that at least = 500=20 people believed themselves to be members of Pauline Hanson's One Nation. = Neither=20 Ms Hanson, Mr Ettridge nor Mr Oldfield gave evidence in = this=20 matter in spite of evidence being led by the plaintiff of statements = made by=20 them about membership of the organisations, whether the political party = or the=20 support movement. Where there is no reason to disbelieve the evidence = given by=20 those witnesses, uncontradicted as it is by any oral evidence on the = part of the=20 second defendant, I would of course be inclined to accept the evidence = of those=20 witnesses that those statements were made to them. The second defendant = says=20 that the reason for not calling those witnesses was because certain = matters were=20 not open on the pleadings, in particular that the plaintiff did not = allege that=20 an application was made to register the Federal party. But whether the=20 application was to register the Federal party or the State party, = statements as=20 to whether there were any members of the political party which the = second=20 defendant sought to register under the Queensland Ele= ctoral=20 Act 1992 are relevant and admissible. It is my view open on the = case=20 pleaded to find that there was an application to register Pauline = Hanson's One=20 Nation, an unincorporated association, which did not have 500 members.=20

84 Where relevant statements have been made by the plaintiff or his = witnesses=20 in their evidence and it is uncontradicted the consequence referred to = above=20 will follow. As the High Court observed of the well-known rule in = Jones v=20 Dunkel[75] in its recent decision in G v H;[76]=20

"... it is well settled that, in the course of the ordinary processes = of=20 legal reasoning, an inference may be drawn contrary to the interests of = a party=20 who, although having it within his or her power to provide or give = evidence on=20 some issue, declines to do so. Thus, for example, there may sometimes be = an=20 inference in civil cases that the evidence, if called, would not assist = that=20 party's case. ... In other cases, the failure to give evidence may = result in=20 more ready acceptance of the evidence for the other party or the more = ready=20 drawing of an inference that is open on that evidence."[77]=20

I would therefore be inclined to draw an inference that the evidence = which is=20 within the power of the second defendant to call to rebut evidence given = by the=20 plaintiff or his witnesses, would not assist the second defendant. = However I=20 have only done so where the evidence given by the plaintiff or in his = case=20 appears to be relevant and apparently credible.=20

85 From the evidence before the court it appears that there are at = least=20 three relevant organisations. The first is an incorporated association = known=20 originally as the "Pauline Hanson Support Movement Inc" ("the support = movement")=20 which later changed its name to Pauline Hanson's One Nation Members Inc = ("One=20 Nation Members"). Membership cost as little as $5.00 and entitled = members to=20 membership of a non-political organisation which supported the aims and=20 objectives of Pauline Hanson. As at 13 January 1997, it had 560 = members and=20 28 branches. By 3 February 1997 it had 659 members. It was = incorporated on=20 10 March 1997 with the model rules prescribed by the = Associations=20 Incorporation Regulation 1982 (Qld). It grew from an unincorporated=20 association known as the Pauline Hanson Support Movement which was = initiated on=20 the Gold Coast in late 1996. Its original office bearers were Bruce = Whiteside as=20 President, Lindon Litchfield as Treasurer and Iris Whiteside as = secretary.=20 Shortly after incorporation its office bearers became Ms Hanson as=20 President, Vice Presidents, Paul Trewartha and David Ettridge and = Treasurer,=20 Lindon Litchfield. Subsequently Mr Trewartha and Mr Litchfield = resigned from their positions.=20

86 Its objects[78] were then said to be:=20

"1. To provide fund raising and advocacy support to the political = endeavours=20 of Pauline Hanson.=20

2. To provide localised human resources to support any candidate = endorsed by=20 Pauline Hanson for any election.=20

3. To assist any endorsed candidate with local fund raising and = advocacy.=20

4. To remain a non political support organisation.=20

5. To identify from time to time and recommend suitable local = candidates for=20 endorsement by Pauline Hanson.=20

6. To discuss and put forward any ideas and issues for action and = attention=20 by Pauline Hanson and her endorsed candidates.=20

7. To remain inert in regard to Media and Media Interviews on any = matters=20 that are of a political nature.=20

8. To provide a system whereby the moods and the concerns of the = people of an=20 electorate can be measured and passed on to Pauline Hanson.=20

9. To avoid offering support or endorsement and or public association = and or=20 attachment to any person in his or her pursuit of a political or public = office=20 at any Federal, State or Local Government level; other than a candidate = endorsed=20 by Pauline Hanson.=20

10. To take every care to avoid any association with any person whose = past=20 history or current activities that would cause adverse effect to the = interests=20 of Pauline Hanson's political endeavours.=20

11. To avoid direct speaking to or other forms of communications with = all=20 forms of Media on behalf of Pauline Hanson. (All questions or enquiries = to be=20 directed to Pauline Hanson or her appointed advisor).=20

12. To follow the correct channels and procedures for maintaining=20 communications within the organisation."=20

87 In the constitution, the only class of members was said to be = ordinary=20 members whose number was to be unlimited. There was no limitation on the = membership as to voting or eligibility for election to management = committee=20 positions.=20

88 On 24 May 1997, there was a meeting of the Pauline Hanson = Support=20 Movement National Management Committee where the minutes record the = presence of=20 Pauline Hanson, Paul Trewartha, Lindon Litchfield and David Oldfield as=20 observer. The minutes show that Mr Trewartha was nominated and = appointed as=20 secretary[79] and that it was resolved that the new name of the=20 organisation was Pauline Hanson One Nation Supporters Inc. It was = resolved after=20 being moved by Mr Ettridge that there would be two levels of = membership.=20

"(1) One Nation members have full voting rights.=20

(2) Pauline Hanson One Nation Supporters have all rights of = membership other=20 than voting rights."=20

Another motion, moved by Mr Ettridge and seconded by = Ms Hanson, was=20 carried:=20

"That we move quickly to establish branches in each electorate of = Australia=20 and provide branch kits to create infrastructure"=20

The branches referred to are branches of the support movement.=20 Mr Trewartha's evidence was that while he was secretary of the = support=20 movement, i.e. until 25 August 1997 there was only one membership=20 application form to join the support movement but that there had always = been two=20 levels of support movement membership. However it should be noted that = in early=20 June 1997, Mr Trewartha filled out a membership application form = for=20 Pauline Hanson's One Nation and paid $50.00 by cheque. On the = application form,=20 he described himself as the "Vice President PHSM National". When=20 cross-examined about the application he gave the following evidence:=20

"Mr Trewartha, you thought it relevant, did you, that in stating = previous relevant experience you were - your association with the = unincorporated=20 entity - sorry, with the support movement should be mentioned?-- No, it = was=20 purely a case of this was a rhetorical type request. This was asked by = me by=20 Lindon Litchfield who was the national treasurer who had been instructed = by=20 David Ettridge to get everybody to fill these in and sign their undated=20 registrations, of which I did, and I forwarded him a cheque for $50 and = I put in=20 there that I was the national vice president of Pauline Hanson Support = Movement,=20 which I am.=20

I see?-- Or was.=20

Mr Trewartha, you didn't seriously think, did you, that you were = making=20 another application to join a body which you were already a member when = you=20 filled this in?-- All I was doing was paying my affiliation fee.=20

You paid a fee to join the -----?-- I wouldn't even be sure of that. = We - I=20 started this whole organisation, so why would I be paying a fee to = myself? Maybe=20 I would pay a fee of $5. I can't remember. I probably did if we checked = the=20 records, but this was to - you have to pay $40 in what was requested = from the=20 national management committee of Pauline Hanson Support Movement in the = form of=20 David Ettridge who requested these things be done of every member, so I=20 automatically complied when requested by David - by Lindon Litchfield to = do so."=20

89 It was noted in the minutes of the meeting of 24 May 1997 = that the=20 resolutions to change the name and to change the classes and rights of = members=20 would require a general meeting's confirmation for acceptance by the = chief=20 executive of Consumer Affairs. These resolutions could not be effective = without=20 a resolution passed by a general meeting of the organisation in = accordance with=20 its own constitution or Part 4, Division 3 and Part 5[80] of the As= sociations=20 Incorporation Act 1981.=20

90 In any event, as the second defendant said in its submissions, the = allegation as to two levels of membership of the support movement is in = the end=20 irrelevant in determining whether or not Pauline Hanson's One Nation had = the=20 requisite number of members.=20

91 On the same day, 24 May 1997, Ms Hanson, the political = movement=20 One Nation and Pauline Hanson's Support Movement Incorporated were = parties to a=20 licensing agreement, whereby Ms Hanson and One Nation agreed to = allow=20 Pauline Hanson's Support Movement Inc to use the words `One Nation' in = its new=20 name which was then proposed to be Pauline Hanson's One Nation = Supporters. It=20 appears that this name was then used. A notice dated 11 September = 1997 with=20 regard to the Annual General Meeting of the association, for example, = was on=20 letterhead describing it as the Pauline Hanson Support Movement Inc to = be known=20 as Pauline Hanson One Nation Supporters.=20

92 A newsletter published in June 1997 described the organisation as = Pauline=20 Hanson Support Movement Inc to be known as Pauline Hanson One Nation = Supporters.=20 In the newsletter, membership was described as follows:=20

"GOLD COAST BRANCH=20

At the last committee meeting on the Gold Coast, we decided we should = emphasize our identity