Citation: Smith, Robert Arthur v Alison Byrne (New South Wales Electoral Commission) [2017] NSWCCA 35
Court: Court of Criminal Appeal
Date: 3 April 2017
Judge(s): Simpson JA, Johnson J, Fagan J
Background
The applicant was convicted in the Local Court of failing to lodge a disclosure declaration on behalf of the Fishing Party for the financial year ending 30 June 2013, contrary to s 96H(1) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW). The prosecution's case rested on the applicant being the "party agent" responsible for making that disclosure. Because no person was formally registered as party agent during the relevant period, the prosecution relied on s 41(2) of that Act, which deems the registered officer of a party to be its party agent by default.
The applicant held dual roles: he was both the registered officer of the Fishing Party and its secretary (as defined in s 66A of the Parliamentary Electorates and Elections Act 1912 (NSW)). His appeal to the District Court was dismissed. He then sought to have two questions of law determined by the Court of Criminal Appeal by way of a stated case under s 5B of the Criminal Appeal Act 1912 (NSW).
The central dispute was whether, as secretary of the Fishing Party, the applicant was "a person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912" within the meaning of s 41(9) of the Election Funding Act. If so, that provision would have rendered him ineligible to be the party agent and would have negated his deemed status under s 41(2).
Legal Issues
- Whether a person who holds the position of "secretary" of a registered political party (as defined in s 66A of the Parliamentary Electorates and Elections Act 1912) is "a person appointed to any office or position under" that Act for the purposes of s 41(9) of the Election Funding, Expenditure and Disclosures Act 1981.
- If the answer to the first question is yes, whether s 41(9) prevents such a secretary, who also holds the position of registered officer, from being deemed the party agent under s 41(2).
Decision
The Court answered the first question "No." The phrase "appointed to any office or position under the Parliamentary Electorates and Elections Act 1912" in s 41(9) refers to persons appointed under the statutory provisions of that Act itself, namely commissioners for redistribution of electoral districts, the Electoral Commissioner, returning officers, managers of polling places, election assistants, and similar officers. Those appointments are made by the Governor, the Electoral Commissioner, or through the public service.
The ordinary and natural meaning of the words "appointed under" the Act does not extend to persons appointed by registered political parties to internal positions within those parties. A party secretary is appointed by the party, not by or under the statute. The purpose of s 41(9), on the Court's interpretation, is to preserve the independence of statutory officers who manage and conduct elections from the registered parties that participate in them.
Because the first question was answered in the negative, the second question did not arise. The applicant's argument that his role as party secretary rendered him ineligible to be the party agent under s 41(9) was rejected.
On costs, the Court also rejected the applicant's contention that s 17(1) of the Criminal Appeal Act 1912, which provides that no costs shall be allowed on either side in an appeal, applied to the stated case procedure. The Court confirmed that a stated case is not an appeal and that costs could therefore be awarded in the usual way.
Orders Made
- Time for submitting the stated case under s 5B(2) of the Criminal Appeal Act 1912 (NSW) extended to 26 August 2016.
- The stated case returned to the District Court with the Court's reasons and the following answers to the questions of law:
- Question 3A: No
- Question 3B: Does not arise
- The applicant ordered to pay the respondent's costs in the amount of $6,957.62.
Key Takeaways
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The phrase "appointed to any office or position under the Parliamentary Electorates and Elections Act 1912" in s 41(9) of the Election Funding Act is confined to persons appointed by or under that statute to statutory roles (such as the Electoral Commissioner, returning officers, and election managers), not to persons appointed by political parties to internal party positions.
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A political party's secretary, whose appointment is made by the party rather than conferred by statute, does not fall within the disqualifying category in s 41(9) and is not thereby rendered ineligible to serve as party agent.
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The underlying purpose of s 41(9), as identified by the Court, is to prevent statutory election officials from simultaneously acting as agents for registered political parties, thereby protecting their independence.
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In dismissing the costs objection, the Court of Criminal Appeal confirmed that the stated case procedure under s 5B of the Criminal Appeal Act 1912 is distinct from an appeal, meaning the prohibition on costs in s 17(1) of that Act does not apply to stated case proceedings.
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Where no party agent has been formally appointed under s 41(1), s 41(2) operates as a deeming provision that automatically makes the registered officer of the party the party agent, and the ineligibility exception in s 41(9) does not apply merely because that person holds an internal party office such as secretary.
Legislation and Cases Referenced
Legislation:
- Election Funding, Expenditure and Disclosures Act 1981 (NSW), ss 41, 88–95, 96H
- Election Funding and Disclosure Regulation 2009 (NSW), cl 8A
- Parliamentary Electorates and Elections Act 1912 (NSW), ss 6, 21AA, 21D, 21AE, 21AF, 21AI, 21AJ, 21AK, 66A, 66D, Pt 4A
- Criminal Appeal Act 1912 (NSW), ss 5B, 17
- Civil Procedure Act 2005 (NSW)
- Interpretation Act 1987 (NSW)
Cases:
- Clyne v Wrigley [1980] 1 NSWLR 599
- R v JS [2007] NSWCCA 309