Smith, Robert Arthur v Alison Byrne (New South Wales Electoral Commission)

THE COURT: Pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) his Honour Judge Frearson SC has stated for the determination of this Court questions of law arising from an appeal brought by the applicant to the District Court. The questions are as follows:

The stated case was submitted to this Court on 26 August 2016, well after the time limited by subs (2) of s 5B. The applicant’s appeal to the District Court had concluded on 4 December 2015 when his Honour dismissed it. The respondent does not oppose time being extended and an order to that effect will be made.

The appeal to the District Court followed the applicant’s conviction in the Local Court after a summary hearing on one count that he, being a person who was required to lodge a declaration regarding election funding, failed to do so within the time limit for lodgement, contrary to s 96H(1) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (“the Election Funding Act”). Division 2 of Part 6 of the Election Funding Act, comprising ss 88 – 95, requires political parties, amongst others, to make disclosure of political donations received or made and electoral expenditure incurred. Disclosure is required in respect of each 12 month period ending on 30 June: s 89. The time limit for disclosure is 12 weeks from 30 June and it must be made by way of a declaration lodged with the Electoral Commission in a form approved by the Commission: s 91 and cl 8A of the Election Funding and Disclosure Regulation 2009 (NSW).

Pursuant to s 90(a) the person responsible for making disclosure on behalf of a party is “the party agent”. The offence provision under which the applicant was prosecuted is as follows:

The applicant was prosecuted and convicted upon the basis that he was the “party agent” of the Fishing Party. It was alleged in the Local Court (and apparently found proved) that between 1 July 2012 and 30 June 2013 the Fishing Party was registered under Pt 4A of the Parliamentary Electorates and Elections Act 1912 (NSW). A declaration under s 91 of the Election Funding Act was therefore required to have been lodged by 22 September 2013. No such declaration was lodged.

The particulars of the prosecutor’s allegation that the applicant was the “party agent” relied upon s 41 of the Election Funding Act, as follows:

In the period between 14 December 2012 and 23 September 2013, which spanned the interval within which the Fishing Party’s declaration for the year ended 30 June 2013 should have been lodged, no person was registered as party agent in the register of agents kept under the Election Funding Act. The prosecutor, being the respondent to the stated case, contends that this situation engaged s 41(2). The applicant was the “registered officer” of the Fishing Party, for the purposes of Pt 4A of the Parliamentary Electorates and Elections Act in the period 14 December 2012 and 23 September 2013. Therefore, the respondent says, the applicant was the party agent for the purposes of the Election Funding Act, by force of s 41(2), and was responsible for lodgment of the declaration.

The questions in the stated case arise because the applicant held the position of secretary of the Fishing Party during this same interval, in particular during the 12 weeks within which the declaration of the year ended 30 June 2013 was required to be lodged. He contends that as secretary of the Party he was a “person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912” and therefore, by the operation of s 41(9) of the Election Funding Act, he was ineligible to be the Fishing Party’s party agent. Accordingly, he submits, he cannot be deemed by s 41(2) to have been the Fishing Party’s party agent. On this basis he submits that he was not responsible to lodge the declaration and is not criminally liable under s 96H(1).

The answer to the questions stated turns upon the interpretation of the words in s 41(9) of the Election Funding Act: “person appointed to any office or position under the Parliamentary Electorates and Elections Act 1912”. Sections 6, 21AA, 21D, 21AE, 21AF, 21AI, 21AJ and 21AK of that Act provide for the appointment of commissioners for redistribution of electoral districts, an Electoral Commissioner, staff to be employed in the Public Service to enable the Electoral Commissioner to exercise his functions, returning officers, managers of polling places, election assistants and interstate or overseas pre-poll voting officers. In the Court’s view it is to the holders of these positions that s 41(9) of the Election Funding Act refers.

Under the sections cited in the preceding paragraph the commissioners for redistribution and the Electoral Commissioner are to be appointed by the Governor. The other officers whose appointment is provided for are either to be appointed by the Electoral Commissioner or are public servants of the State. It is only these persons, whose appointment is prescribed by the statute, to whom s 41(9) refers as “appointed … under” the Act and whom s 41(9) disqualifies from being the agent of any party. Subsection (9) does not, on its proper interpretation, have the effect of making persons who are appointed by registered political parties to positions within those parties ineligible for the position of party agent. Such persons are not appointed to “an office or position under” the Parliamentary Electorates and Elections Act, according to the ordinary and natural meaning of those words.

On that understanding of s 41(9) its purpose is to preserve the independence of officers who are appointed to manage and conduct elections from the registered political parties which may participate in them.

Part 4A of the Parliamentary Electorates and Elections Act, providing for the registration of parties, makes reference to the office of “secretary” of a party. Such officer is defined in s 66A(1) as “the person who holds the office (however expressed) the duties of which involve responsibility for the carrying out of the administration, and for the conduct of the correspondence, of the party”.

Section 66D of the Parliamentary Electorates and Elections Act includes the following prerequisites for registration of a party which, notably for present purposes, include in subs (2)(c) the requirement that the person or persons seeking registration of a party must, in the application, nominate a registered officer:

From s 66D it is evident that the registered officer is not a person “appointed to any office or position under the Parliamentary Electorates and Elections Act”. The legislature did not intend by s 41(9) of the Election Funding Act to refer to the registered officer of a party as such an appointee. If the quoted words did refer to the registered officer then subs (9) would contradict and defeat subs (2). This tends to confirm that s 41(9) only refers to those officers who are appointed by the Governor or by the Electoral Commissioner or who are employed as public servants under the sections of the Parliamentary Electorates and Elections Act which provide for their appointment (the sections cited at [9]) and not to persons appointed by registered parties to hold office under their constitutions, such as the registered officer of a party or a party secretary.

It follows that the applicant’s position as secretary of the Fishing Party did not render him ineligible to be the Party’s agent. Section 41(2) applied to him because he was the Party’s registered officer. He was deemed its agent and was liable under s 96H(1) for the failure to lodge the Party’s election funding declaration for the year ended 30 June 2013.

We do not consider that the interpretation of s 41(9) engages s 34 of the Interpretation Act 1987 (NSW) so there is no occasion to consider, as an aid to interpretation, extrinsic material in any of the categories listed in subs (2) of s 34. Neither the applicant nor the respondent has suggested that extrinsic material would, in any event, throw additional light upon the correct interpretation of this particular subsection, which in the Court’s view is clear.

For these reasons the questions in the stated case are to be answered as follows:

The Court’s powers on determining the stated case adversely to the applicant include the power to award costs in favour of the successful party: Clyne v Wrigley [1980] 1 NSWLR 599. The interpretation of s 41(9) of the Election Funding Act is straightforward. There is no obscurity about it which has required clarification as a matter of public importance. There is no merit in the position taken by the applicant regarding the interpretation of the subsection.

Prior to the stated case procedure having been invoked by the applicant he sought to file in this Court an expansive notice of appeal. This was properly rejected by the Registry. Following a decision of the District Court on an all grounds appeal from the Local Court exercising its jurisdiction with respect to summary offences, there is no general right of appeal to this Court. In written submissions and in documents lodged in connection with the stated case the applicant has sought to expand the scope of review of proceedings in the court below to that which he would have pursued if a general avenue of appeal had been open. Consequently, he has made the proceedings on the stated case far more complex and difficult for the respondent to answer than they should have been.

The respondent has asked for a costs order in a gross sum determined under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The amount of costs incurred by the respondent is established by two affidavits of a solicitor employed in the office of the New South Wales Crown Solicitor. The Court has considered that evidence and has had regard to the long history of the prosecution of the applicant. The applicant filed submissions in opposition to the claim for costs, dated 19 and 27 February 2017. These are primarily concerned with the contention that s 17(1) of the Criminal Appeal Act is applicable so that “no costs shall be allowed on either side” under subs (1) of that section. That contention is rejected. Section 17 is only concerned with “the hearing or determination of an appeal”. The procedure under a stated case is not an appeal. The distinction has been expressly drawn in R v JS [2007] NSWCCA 309 at [7] – [9], where the authority of Clyne v Wrigley was accepted.

The applicant’s submissions on costs also digress into allegations of “professional misconduct and incompetence from the respondent and prosecution” and “knowingly misleading the courts”. These allegations are without any foundation in the material before this Court and are rejected. A third point of the submissions is the applicant’s complaint that the stated case unduly confined the points he had wished to agitate in this Court. The restriction of the issues is a product of the statutory scheme under which further review of a District Court decision upon appeal to it from the Local Court is limited to the stated case procedure, by which only points of law may be raised. This complaint is futile and impotent as an answer to the respondent’s claim for costs.

Taking into account all of the above considerations we conclude that a costs order in favour of the respondent should be made in the gross sum of $6,957.62, as particularised by the respondent.

The Court orders: