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 as the Pauline Hanson Supporters. We also agreed = to act=20 as Coordinating Committee for the South East Queensland region of = Pauline=20 Hanson's ONE NATION. The Head Office of Pauline Hanson ONE NATION is = situated in=20 Sydney and David Ettridge has been appointed National Director, and our=20 President, Paul Trewartha, has been appointed Vice President of the = National=20 Pauline Hanson Support Movement to be known as Pauline Hanson ONE NATION = Supporters.=20

Those who have paid the $5 registration to the Pauline Hanson Support = Movement will be reclassified as members. However if you wish to become = a member=20 of Pauline Hanson's ONE NATION, please write to PO Box 2000, Manly = NSW=20 2095 for an Application Form or phone 1902 920001 for the = cost of a=20 local call.=20

We wish to remind Members that the revised annual fee is $10.00 = per=20 couple, $5.00 per single and is now due for the 1997 - 1998 year (see = Membership=20 Form attached)."=20

A membership form for Pauline Hanson Support Movement Inc - Gold = Coast Branch=20 was found on the second page of the newsletter. The newsletter clearly = shows=20 that there was a form for applying for membership of Pauline Hanson's = One Nation=20 but not necessarily that the form was adequate for its purpose or that = there=20 were any members.=20

93 On 1 July 1997, the Support Movement notified the relevant = government=20 department of a change of constitution to conform with the new model = rules but=20 did not notify of any change of name and any change in the classes or = rights of=20 members.=20

94 On 30 September 1997, Ms Hanson as President of the "Pauline = Hanson=20 Support Movement Incorporated" sent a letter to "all One Nation = Branches"=20 saying:=20

"Before the launch of One Nation, Pauline Hanson Support Movement = Branches=20 were forming all over Australia. The cost of joining the Support = Movement was=20 $5.00. That $5.00 membership fee, since the launch of One Nation on=20 11 April 1997, does not carry with it any voting rights. Only when = a person=20 becomes a member of One Nation do they have any voting rights.=20

This has created confusion in many branches and with members.=20

It is also my concern that One Nation will not make an impact at the = next=20 election unless we have sufficient financial funding.=20

This is to inform you that, upon receiving this letter; the $5.00 = membership=20 fee must cease. Members can only be signed up as members of One Nation = at -=20

$50.00 per couple, $40.00 single; and=20

$25.00 per couple, $20.00 single (pensioners and self-funded = retirees)=20

From these membership fees, the branches are to retain 20%. The = remaining 80%=20 is to be forwarded to One Nation in Sydney. All membership cards will be = issued=20 and receipted by the National office. Membership names for your area can = be=20 accessed by postcode as required.=20

Please ensure that everyone who has paid $5.00 in the last year has = this=20 amount deducted in full from their One Nation membership if they choose = to=20 upgrade.=20

I hope this meets with your approval. If you have any concerns, = please get in=20 touch with One Nation office in Sydney on (02) 9976 0283. This = matter will=20 be discussed in full at the Annual General Meeting being held on = 4 October=20 1997."=20

95 At the next meeting of the National Management Committee of = Pauline Hanson=20 Support Movement Inc held on 4 October 1997, Mr Trewartha and=20 Mr Litchfield moved a motion which was carried revoking the motions = passed=20 on the 24 May meeting changing the name and creating two levels of=20 membership. The minutes record:=20

"President Pauline advised the meeting she had requested David = Ettridge to=20 advise Branches as far back as six weeks prior to raise the question of=20 discontinuing $5.00 membership fees as the amount was out of balance = with the=20 political party fees and was causing much confusion and that she was = seeking a=20 resolution to the problem.=20

Discussion ensued in the vane [sic] of the need to perhaps = wind up=20 PHSM INC. advise [sic] was tabled that this would require = the=20 calling of a general meeting with a minimum of 14 days notice.=20

David Ettridge advised that he had already mailed out a letter to = Branches=20 setting out the President's concerns.=20

Ron Paddison spoke of the need to proceed with the AGM set down for = four=20 o'clock to day as the elected office bearers would be the people = responsible for=20 winding up if that decision was taken.=20

The meeting agreed that President Pauline would make a statement in = lieu of=20 putting the motion on the AGM agenda for a name change."=20

In addition, the question of fielding candidates in Queensland was = discussed.=20

96 On 15 October 1997 Ms Hanson lodged the application to = register=20 Pauline Hanson's One Nation under the Ele= ctoral=20 Act 1992.=20

97 On 28 November 1997 Ms Hanson sent a notice to all = branches of=20 the support movement referring to a restructure of the support movement = to bring=20 it under the umbrella of One Nation. The notice said inter alia:=20

"The changes proposed will allow for all membership to be contained = in the=20 PHSM Inc which will be renamed as Pauline Hanson's One Nation = (Membership) Inc.=20 Other plans such as the appointment of Liason [sic] Officers will = improve=20 and localise administration and communications. Also we will formalise=20 agreements between the several legal entities which will strengthen and = provide=20 clear understandings and responsibilities of each. This will result in = removing=20 any confusion that exists so you will all have a clear understanding of = the=20 structures that have been created to protect us from our opponents."=20

98 A notice of special general meeting for 14 December 1997 was = tendered=20 which listed the following items of business:=20

"1. Consider Name change from PAULINE HANSON SUPPORT MOVEMENT Inc. to = PAULINE=20 HANSON'S ONE NATION Members Inc.=20

2. Consider variation of membership fees to align with Pauline = Hanson's One=20 Nation Political Party membership fees including concessional fees.=20

3. Confirm criteria for Branch Office Bearers Eligibility.=20

4. Confirm National Management Committee's decision to appoint = regional=20 liaison officers in lieu of establishing State Divisions.=20

5. Authorise the National Management Committee to negotiate an = agreement with=20 PAULINE HANSON'S ONE NATION (Political Party) and PAULINE HANSON'S ONE = NATION=20 Limited (Company)"=20

At that special general meeting a resolution:=20

"that application be made to the Consumer Affairs Chief Executive = Officer to=20 change the name of the association from the current name to "PAULINE = HANSON'S=20 ONE NATION Members INC"=20

was carried unanimously. Another resolution was carried that, "Branch = Office=20 Bearers must be Financial Members of Pauline Hanson's One Nation = Political=20 Party".=20

99 This was not only after the application to register Pauline = Hanson's One=20 Nation was made;[81] but also after it was registered[82] as a political party in Queensland. It does not = assist in=20 showing that the political party had members but it does assist in = showing that=20 written and oral statements made prior to 14 December 1997 that = office=20 bearers of the support movement (later One Nation Members) had to be = members of=20 the political party, Pauline Hanson's One Nation, were made and that = those=20 statements were incorrect.=20

100 The support movement's name was changed to Pauline Hanson's One = Nation=20 Members Inc on 3 February 1998. It is a registrable Australian = body[83] under the Corpora= tions=20 Law s.360(1), which enabled the use of the name of the = association=20 incorporated under the As= sociations=20 Incorporation Act 1981 to be used nationally. The change of name = was=20 registered with the Australian Securities Commission on 24 February = 1998.=20 It is hard to understand why the support movement's name was changed to = Pauline=20 Hanson's One Nation Members Inc unless that organisation contained the = members=20 of Pauline Hanson's One Nation.=20

101 This association had a constitution and detailed by-laws setting = out the=20 structure of the association, membership, branches and rules. I shall = refer to=20 these in greater detail later.=20

102 The second relevant organisation is a political party called = "Pauline=20 Hanson's One Nation" ("the political party"). This political party was=20 originally a body styled a political movement known as One Nation which = was=20 launched in Ipswich on 11 April 1997. As I have already noted, this = organisation was still referred to as One Nation by David Ettridge in a = legal=20 document to which it was a party[84] on 24 May 1997.=20

103 The annual membership fees for the political party were said to = be $40.00=20 for a single membership and $50.00 for a couple, and $20.00 for a single = pensioner or self-funded retiree membership and $25.00 for a couple. = However, no=20 member with authority to speak on behalf of the party came forward to = give=20 evidence that the payment of such a fee resulted in actual membership of = the=20 political party, when it was clearly within their power to do so. The=20 application form for membership of Pauline Hanson's One Nation with = which the=20 fee was paid asked for the person's name and address but not for a = nominator and=20 seconder as required under its rules.[85]=20

104 On 13 April 1997, Mr Carne applied to join Pauline = Hanson's One=20 Nation and was issued with a membership card dated 14 April 1997. = In May=20 1997, he was appointed by Mr Ettridge, styling himself National = Director of=20 Pauline Hanson's One Nation, as honorary "Branch Convenor in Victoria = for the=20 Pauline Hanson Support Movement". From about April until June 1997,=20 Mr Carne set up a four station computer network at the headquarters = of=20 Pauline Hanson's One Nation at Level One, 15 The Corso, Manly in = New South=20 Wales. He also created a membership data base which included the = sequence=20 number, membership number, full name and address, status, telephone = number, post=20 code, State, membership fees paid and anniversary date. He was = responsible for=20 the maintenance of the data base until February 1998.=20

105 In June 1997, Mr Ettridge said to Mr Carne words to the = effect:=20

"Let me explain to you the true nature of the structure of Pauline = Hanson's=20 One Nation. All the `members' who pay a fee are not really members of = the=20 political entity. The only `true members' who have voting rights or any = position=20 in the `political entity' are the `elected candidates' only. This means = we have=20 full control of the organisation. If an elected candidate does not go = along with=20 what we say or direct them to do, we shall simply disendorse them."=20

Mr Ettridge drew him a diagram giving effect to this view. This = was=20 repeated by Mr Oldfield on the following day. Mr Ettridge and=20 Mr Oldfield scoffed at the idea that members of the Chinese = community would=20 be able to join Pauline Hanson's One Nation in sufficient numbers to = have her=20 removed because they had total control and no-one would be able to = remove them=20 or Ms Hanson.=20

106 It is certainly clear that apart from any question of the = membership of=20 Pauline Hanson's One Nation, its management committee exercised strict = control=20 over the organisation. Clause 16 of the=20 Constitution of Pauline Hanson's One Nation provides:=20

"Membership of Management Committee=20

16(1) The Management Committee of the association shall consist of a=20 President, Vice President and Treasurer, all of whom shall be members of = the=20 association, and such number of other members at any time elected by a = majority=20 of the Management Committee.=20

(2) At the general meeting of the association, all members of the = Management=20 Committee for the time being shall retire from office, but shall be = eligible=20 upon nomination for re-election.=20

(3) The election of officers and other members of the Management = Committee=20 shall take place in the following manner:=20

(a) any 2 members of the Management Committee shall be at liberty to = nominate=20 any other member to serve as an officer or other member of the = Management=20 Committee;=20

(b) the nomination, which shall be in writing and signed by the = member and=20 the member's proposer and seconder, shall be lodged with the secretary = at least=20 14 days before the annual general meting at which the election is to = take place;=20

(c) a list of the candidates' names in alphabetical order, with the=20 proposers' and seconders' names, shall be posted in a conspicuous place = in the=20 office or usual place of meeting of the association for at least 7 days=20 immediately preceding the annual general meeting;=20

(d) balloting lists shall be prepared (if necessary) containing the = names of=20 the candidates in alphabetical order, and each member present at the = annual=20 general meeting shall be entitled to vote for any number of such = candidates not=20 exceeding the number of vacancies;=20

(e) should, at the commencement of such meeting, there be an = insufficient=20 number of candidates nominated, nominations may be taken from the floor = of the=20 meeting."=20

In this way, the only people with control over the political party = were the=20 members of the management committee, Ms Hanson, Mr Oldfield = and=20 Mr Ettridge. It is they alone who had the power to admit members to = the=20 political party.[86]=20

107 Mr Ettridge often said to Mr Carne:=20

"We are not a political party; a party is where you wear funny hats = and have=20 balloons and streamers, and that is what makes us different."=20

108 Mr Carne gave evidence that he printed off a copy of a = letter from=20 the database apparently written by Mr Ettridge to a Daryll Kelly = which=20 stated:=20

"One Nation is structured as follows:=20

1. We have been registered by the Australian Electoral Commission as = a=20 political party. Pauline is the President and I am the Secretary. The = only=20 members of this structure are Pauline and all elected candidates.=20

2. We also have a Company structure called Pauline Hanson's One = Nation=20 Limited which administers the activities of the political party through = the=20 National office. I am the National Director. Neither Pauline or David = Oldfield=20 are paid by this Company.=20

3. We also have the Support Movement which is being renamed `Pauline = Hanson's=20 One Nation (Membership) Incorporated'. This Company contains all the = branches,=20 membership and membership activities. Branches select candidates, = conduct=20 campaigning, contribute to policy development, conduct fundraising and = election=20 support for the candidate.=20

The above structure is confidential and is not for distribution. It = is=20 constructed in this manner to provide protection for the political party = and=20 make each module a self contained entity, which if attacked by = unfriendlies will=20 not contaminate the other modules.=20

Please be discreet in conveying this information to anyone who does = not need=20 it and do not photocopy it for distribution.=20

Thanks for your continuing support."[87]=20

There is no evidence other than its appearance that the letter was = written by=20 Mr Ettridge but on the other hand he did not take the opportunity = to give=20 evidence to deny it. It is consistent, at least in part, with the letter = under=20 the hand of Pauline Hanson sent to "all One Nation branches" by = Mr Ettridge=20 on 30 September 1997. Mr Kelly was not certain that this was = the=20 letter he received but he did receive a similar letter about the = structure of=20 the party from Mr Ettridge in about November 1997. At that time=20 Mr Kelly was "president of the Ipswich branch of the One Nation = party." In=20 the circumstances, I accept that the letter was written by = Mr Ettridge.=20

109 Meanwhile in Queensland, Alfred Dennis, a retired member of State = Parliament, organised a public meeting in the Hervey Bay region on = 3 April=20 1997 where Ms Hanson addressed 1000 people. At Ms Hanson's = request,=20 Mr Dennis became a regional organizer and formed branches at Hervey = Bay,=20 Burrum Heads and Maryborough. At the first meeting of the Hervey Bay = branch held=20 on 8 May 1997, Ms Hanson addressed the meeting by speaker = phone and=20 congratulated those present for joining the first branch of the One = Nation=20 party. Prior to that meeting, Mr Ettridge sent Mr Dennis a = bundle of=20 membership application forms for Pauline Hanson's One Nation. Shortly = after the=20 meeting, Mr Ettridge telephoned Mr Dennis and said that = Ms Hanson=20 had misinformed the meeting and that the membership that people had = subscribed=20 to was that of the Pauline Hanson Support Movement Inc and not the = political=20 party. His evidence was, "Mr Ettridge told me that the executive = never=20 intended to form any branches of the political party as the party was = not going=20 to be a democratic organization and only had three members, Pauline = Hanson,=20 David Oldfield and David Ettridge ..." Mr Dennis wrote a letter of=20 complaint about this matter to Ms Hanson on 27 June 1997. I = accept=20 Mr Dennis's uncontradicted evidence of the conversation he had with = Mr Ettridge.=20

110 In New South Wales, Peter Archer, who gave evidence in the = plaintiff's=20 case, organised a well-attended public meeting in Newcastle on 30 May = 1997 to=20 raise support for Ms Hanson. All of Mr Archer's affidavit was = objected=20 to by the second defendant on the grounds of relevance but, with the = exception=20 of all of paragraph 11 (except the last sentence) which was ruled = inadmissible=20 at the trial, I regard the rest as relevant. I should say, however, that = I=20 attached no weight to paragraph 7 or the annexure PA3 as the = information in=20 PA3 did not appear to be reliable. It said, for example, that membership = of=20 "Pauline Hanson's One Nation Support Movement" did not carry voting = rights at=20 branch meetings and did not entitle recipients to be nominated as office = bearers. For reasons I have set out, this does not appear to have been = true. It=20 was submitted by the second defendant that Mr Ettridge's action in=20 returning the document in the form in which it was returned was not the = conduct=20 of someone who considers that there was no party, or that the party has = only one=20 or only three members. However if this was the case, he could easily = have given=20 evidence to that effect.=20

111 On 25 June 1997, Mr Ettridge, styling himself the = National=20 Director of Pauline Hanson's One Nation, confirmed by letter the = appointment of=20 Mr Archer as honorary regional liaison officer in the = Newcastle-Hunter=20 region of Pauline Hanson's One Nation. Part of his role was said to be = to assist=20 new branches to start up. He was then sent a branch starter kit for = Pauline=20 Hanson's One Nation Supporters Inc. It should be noted that this was = never the=20 name of the organisation but was the name proposed to be used after the=20 licensing agreement was signed in May 1997. The branch starter kit = contains=20 instructions entitled "[t]he first steps to starting a new branch". One = of the=20 objectives was said to be to recruit members both of the Support = Movement and=20 Pauline Hanson's One Nation.=20

112 Paragraph 10 of the Branch Starter Kit[88] used prior to the application for registration of = Pauline=20 Hanson's One Nation tendered in evidence and relied upon by the second = defendant=20 in its submissions, explained two forms of membership which were = membership for=20 One Nation or membership for the Pauline Hanson Support Movement as = follows:=20

"The TWO forms of membership are:=20

# ONE NATION=20

This membership is of the political party and entitles members to = full voting=20 rights at branch meetings. Although One Nation membership is processed = and=20 managed by the National Office the income will be devoted to the conduct = of the=20 National Office and the Federal election campaign. Some of this income = will be=20 redirected at election time to support local candidates.=20

The One Nation database and membership renewals will be managed by = the=20 National Office.=20

# PAULINE HANSON SUPPORT MOVEMENT @ $5.00=20

This level of membership allows entry to branch meetings and all = activities=20 of the branch but will not allow voting rights. This membership database = and=20 renewals are managed at branch level."=20

113 There is no basis in the constitution of either organisation to = believe=20 this was the case. The constitution of Pauline Hanson's One Nation says = nothing=20 about the support movement. There is nothing in its constitution or = rules to=20 suggest it has a branch structure. It is reasonably clear when paragraph = 10 is=20 read as a whole that "branch meetings" is intended to refer to branch = meetings=20 of the support movement. I was not referred to any section of the = constitution=20 or by-laws of the support movement which carried on such restriction on = voting=20 rights nor could I find any. There is nothing to that effect in the = model rules.=20 Attached to the model rules put in evidence there was a document = entitled=20 "By-Laws - Pauline Hanson Support Movement to be interpreted in = conjunction with=20 rules".=20

By-Law 1 says that:=20

"The Association comprises members who are registered with the = association by=20 payment of a membership fee. The Association is incorporated in = Queensland and=20 registered with the Australian Securities Commission."=20

There are no classes of members but according to clause 4 of the=20 constitution, there are only ordinary members. Clauses 3-6 deal with the = formation of branches of the support movement. They provide:=20

"3. The Association will establish Branches throughout Australia as = required=20 to service and administer the members of the Association in a particular = locality and the members in that locality will be assigned to that = Branch.=20

4. All Branches will operate according to the Rules of the = Association and=20 the By-Laws (Branch) as in Chapter 3 below.=20

5. The Association will, from time to time, devolve certain of its = powers and=20 functions to the Branch which will be specified in the By-Laws (Branch). =

6. A Management Committee, elected from among the members in the = Branch in=20 accordance with the By-Laws (Branch), will administer and manage the = Branch, its=20 funds, assets and property subject to those rules and the requirements = of the=20 National Management committee."=20

114 Chapter 2 of the by-laws deals with branches. Clause 8 of[89] Chapter 2 deals with membership of the = management=20 committee of branches and provides:=20

"8. The Management Committee shall consist of a President, not more = than=20 three Vice-Presidents, a Secretary, a Treasurer, comprising the officers = of the=20 Branch, and such number of the Branch Management Committee members as a = general=20 meeting of the Branch may appoint or elect. The President of the = Association=20 will be ex officio members [sic] of the Management Committee and = the=20 immediate past President will be an ex officio member for the period of = a year=20 after presiding. All elected members of the Management Committee must be = members=20 of the Branch. All ex officio members will be full members of the = Management=20 Committee and have full voting rights."=20

115 There is no provision that membership of Pauline Hanson's One = Nation=20 entitles members to full voting rights at Branch meetings or that = membership of=20 Pauline Hanson Support Movement Inc allows entry to branch meetings and = all=20 activities of the Branch but will not allow voting rights. The only = change to=20 that occurred on 14 December 1997 (after Pauline Hanson's One = Nation was=20 registered) when, as I have previously found, Pauline Hanson's Support = Movement=20 Inc in general meeting resolved that "Branch office bearers must be = Financial=20 Members of Pauline Hanson's One Nation Political Party." The statement = contained=20 in Ms Hanson's letter of 30 September 1997 that the $5.00 = membership fee=20 does not carry with it any voting rights and that only when a person = becomes a=20 member of One Nation do they have any voting rights, does not set out = the true=20 position.=20

116 There were different application forms to join Pauline Hanson's = One=20 Nation[90] and Pauline Hanson's One Nation Supporters.[91] The significant difference in the membership = application=20 forms was the membership fees. The membership fee to join Pauline = Hanson's One=20 Nation Supporters was $5.00 per person, while the annual membership fee = for=20 Pauline Hanson's One Nation was said to be:=20

"=B7 Single $40.00 Couple $50.00=20

=B7 Pensioner and Self-funded Retiree - Single $20.00 Couple $25 per = annum"=20

117 In late June 1997, Ms Hanson told Christopher Bramwell and = his wife,=20 Carmel Gallagher, who believed they had joined Pauline Hanson's One = Nation on=20 the evening of its launch without filling in application forms, that she = would=20 always be leader of the party and the members would only be part of a=20 supporters' group so they would not be able to vote her out. She said = that she,=20 Mr Oldfield and Mr Ettridge were in control of the party.=20 Mr Bramwell was not cross-examined on this evidence although = objection was=20 taken as to its relevance. This evidence, however, is relevant to the = case=20 pleaded by the plaintiff. It shows the belief of Ms Hanson who was = the=20 President of Pauline Hanson's One Nation as to membership of that = political=20 party. It rebuts the inference the second defendant asked the Court to = draw that=20 the auction of a membership card of Pauline Hanson's One Nation at its = launch in=20 April 1997 is inconsistent with the notion that there were only three = members of=20 the political party.=20

118 On 19 July 1997, Mr Ettridge told David Graham, who was = employed as Media Liaison Officer in Victoria and worked full time for = what he=20 believed was the party organisation and who believed himself to be a = member of=20 Pauline Hanson's One Nation as he had completed a membership application = form=20 and paid $40.00 in membership fees, that there was no party, there was = only the=20 support movement and if people who were ringing wanting a copy of the=20 constitution of the party they thought they had joined, then "these = people will=20 never be members of the party and if anyone doesn't like that they can = get=20 stuffed". On the same date Mr Oldfield told Mr Graham that = they had=20 been in a hurry to set up and they didn't have a proper constitution but = they=20 would be fixing that up soon. In August 1997 Mr Graham said he was = told by=20 Mr Carne that there was a political party, but members did not = belong to it=20 and never would because they would try to overthrow Ms Hanson and = run their=20 agenda. He said they were only members of the supporters' group. = Mr Lyons=20 QC, for the second defendant suggested to Mr Graham that he wasn't = told=20 there was no party and that people would not be members of the party. He = disagreed with that suggestion. I find that these statements attributed = to=20 Mr Oldfield, Mr Ettridge and Mr Carne by Mr Graham = were made=20 and represented what they believed to be the true situation with regard = to=20 membership. The rest of Mr Graham's evidence is not relevant to the = matters=20 in issue.=20

119 Mr Archer had a conversation with Mr Ettridge on = 7 July=20 1997 about the structure of Pauline Hanson's One Nation. = Mr Ettridge told=20 Mr Archer that Pauline Hanson's One Nation consisted only of = himself,=20 Mr Oldfield and Ms Hanson, that there were only members and = branches=20 of the Pauline Hanson Supporters Movement and not of the political party = and=20 that there would never be branches of the political party. On = 9 July 1997,=20 Mr Ettridge told Mr Archer that even persons who paid the = membership=20 fees of $40.00 single or $50.00 a couple, did not become members of the=20 political party but were members of the support movement only. When=20 Mr Archer opined that the party structure was not democratic,=20 Mr Ettridge replied that he did not believe in democracy. I accept = for the=20 reasons given previously that these statements were made by = Mr Ettridge.=20

120 Before he resigned his membership in August 1997, = Mr Trewartha was=20 told by Mr Ettridge that:=20

"we could not become members of One Nation. The only members of One = Nation,=20 the political party, would be Pauline, David Ettridge and Mr X, = which=20 became David Oldfield, and all members of the State and Federal - = elected to=20 State and Federal parliament ..."=20

In his letter of resignation he stated that he was not a member of = Pauline=20 Hanson's One Nation, in spite of the fact that he had wanted to be.=20

121 Brian McDermott, who resides in Queensland, believed he became a = member=20 of both the Pauline Hanson Support Movement Inc and Pauline Hanson's One = Nation=20 in May 1997. He attended a meeting in October 1997 where = Mr Oldfield in=20 answer to questions about the structure of Pauline Hanson's One Nation = said that=20 everyone who was a member was only a member of Pauline Hanson Supporters = Movement Inc and that the political party had one member only and that = was=20 Pauline Hanson. While I accept that Mr Oldfield made those = statements, and=20 indeed this evidence was not challenged on cross-examination, I do not = accept=20 that the political party only had one member. I agree with the = submission made=20 by Mr Lyons QC that the rest of the material in Mr McDermott's = affidavit is irrelevant.=20

122 What do the minutes of meetings of Pauline Hanson's One Nation = reveal=20 about its membership? Minutes of meetings of Pauline Hanson's One Nation = were=20 tendered by the second defendant. There was no explanation as to why = only these=20 minutes and no others were tendered. These minutes record as follows:=20

=B7 A meeting on 2 March 1997. No attendance is noted. The = minutes, which=20 were signed by Mr Ettridge as Chairman, say:=20

"Consistent with the discussions and agreement made at the meeting = held on=20 February 23rd, 1997 at Sydney Airport, David Oldfield has prepared a=20 constitution that describes the management committee of the newly formed = Pauline=20 Hanson's One Nation political party.=20

Pauline Hanson as the founding member of the party has appointed = David=20 Ettridge and David Oldfield to be committee members as described in the=20 constitution of the party.=20

This constitution is to be lodged with the Australian Electoral = Commission as=20 a required part of the application to register the party.=20

David Ettridge is to attend to this registration as soon as = possible."=20

There would not appear to be any other members of Pauline Hanson's = One Nation=20 at this point.=20

=B7 A meeting on 2 April 1997 which records a telephone = conversation with=20 regard to the opening of a Pauline Hanson's One Nation bank account. The = minutes=20 signed by Mr Ettridge record:=20

"D. Ettridge advised P. Hanson that at the earliest opportunity he = would open=20 a bank account for Pauline Hanson's One Nation at the ANZ Bank, The = Corso Manly,=20 NSW, for regular banking/cheque purposes.=20

Both Pauline Hanson and D. Ettridge would be signaturies [sic] = and=20 D. Ettridge may sign cheques as a sole signature for the time being = and=20 until further notice temporarily waiving the requirement of clause 35(4) = of the=20 parties [sic] constitution. This being a temporary solution to = the=20 impractical problem of distance for P. Hanson and the lack of another = trusted=20 and easily available signatury [sic].=20

Full accounting details are to be available for inspection at any = time and=20 are to be kept up to date and reported as required to the management = committee.=20

Annual audits will be undertaken in accordance with the rules and=20 requirements of the Australian Ele= ctoral=20 Act when party registration is completed.=20

An accountant and auditor will be appointed to provide the = appropriate tax=20 and reporting requirements of the Government and the AEC."=20

=B7 A meeting on 13 October 1997 which records a telephone = conversation=20 between Ms Hanson and Mr Ettridge. The unsigned minutes = record:=20

"The following matters were raised for discussion and decisions:=20

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

2. The One Nation constitution to be lodged in Queensland would also = require=20 that we include a clause that provides for a committee and a procedure = of=20 candidate selection. It was agreed that such a procedure would be = created and=20 added to the constitution as soon as possible."=20

No other minutes of Pauline Hanson's One Nation or its management = committee=20 were tendered in spite of the constitution of Pauline Hanson's One = Nation having=20 the provisions set out below with regard to the management committee and = membership.=20

123 It is usual for the rules or constitution of such an organisation = to=20 regulate matters such as the objects and purposes of the organisation, = admission=20 to and expulsion from membership, management of its affairs and control = of its=20 property.[92] These rules in the constitution of Pauline = Hanson's One=20 Nation are as follows:=20

"FORMATION OF MANAGEMENT COMMITTEE=20

5. At the inaugural meeting of Pauline Hanson's One Nation those, who = at that=20 time, have been accepted as members by the founding member, Pauline = Hanson, are=20 eligible to be elected to the management committee.=20

Initially the Management Committee will consist of three members, = President,=20 Vice President and Treasurer.=20

The number of members of the Management Committee may be increased at = any=20 time by a majority vote of the members of the Management Committee.=20

CLASSES OF MEMBERSHIP=20

6. (1) The membership of the Association shall consist of the = following=20 classes of members:=20

(a) Management Committee Members=20

(b) Committee Members=20

(d) Patron=20

(e) Donor=20

(f) Joint (Married/Defacto)=20

(g) Single=20

(h) Pensioner/Self Funded Retiree - also available as a joint = membership=20

(2) The number of members shall be unlimited.=20

Initially the Management Committee will consist of three members; = President,=20 Vice President and Treasurer=20

The number of members of the Management Committee may be increased at = any=20 time by a majority vote of the members of the Management Committee.=20

7. (1) Every member of the association who previously to agreeing to = become a=20 member of the association has paid their subscription on or before the = date=20 fixed by the Management Committee for the purpose, as a member of the=20 unincorporated association, shall not be liable to pay any further sum = by way of=20 annual subscription to the association for the period before the date = fixed by=20 the Management Committee as the date the next annual subscription = becomes due.=20

(2) Following the formation of the Management Committee, every = applicant for=20 any class of membership of the association (other than the members of = the=20 unincorporated association referred to in sub-rule (1)) shall be = proposed by 1=20 member of the association and seconded by another member.=20

(3) The application for membership shall be made in writing, signed = by the=20 applicant and the applicant's proposer and seconder and shall be in such = form as=20 the Management Committee from time to time prescribes."=20

124 The organisation Pauline Hanson's One Nation is not incorporated, = so the=20 unincorporated association referred to in clause 7(1) is Pauline = Hanson's One=20 Nation. Mr Ettridge and Mr Oldfield became members under = clause 5=20 in addition to its founding member, Ms Hanson. The evidence shows = that=20 those applicants who applied to join Pauline Hanson's One Nation did not = do it=20 in accordance with the requirements of sub-clauses 7(2) and 7(3). The = membership=20 application form contained no provision for the applicant to be proposed = or=20 seconded by members of the association.=20

"MEMBERSHIP FEES=20

8. (1) The membership fees for each class of membership shall be such = sum as=20 the members of the Management Committee shall from time to time at any=20 Management Committee meeting so determine.=20

(2) The membership fees for each class of membership shall be payable = at such=20 time and in such manner as the Management Committee shall from time to = time=20 determine.=20

ADMISSION AND REJECTION OF MEMBERS=20

9. (1) At the next meeting of the Management Committee after the = receipt of=20 any application and the fee applicable for any class of membership, such = application shall be considered by the Management Committee, who shall = thereupon=20 determine upon the admission or rejection of the applicant.=20

(2) Any applicant who receives a majority of the votes of the members = of the=20 Management Committee present at the meeting at which such application is = being=20 considered shall be accepted as a member to the class of membership = applied for.=20

(3) Upon acceptance or rejection of an application for any class of=20 membership the secretary shall forthwith give the applicant notice in = writing of=20 such acceptance or rejection."=20

As the second defendant clearly has it within its power to produce = such=20 minutes, i.e. those which show the admission or rejection of applicants = for=20 membership, the failure to do so suggests such minutes did not exist and = the=20 list of members dated on its face 19 March 1999 tendered[93] by the second defendant as a:=20

"List of Members - Pauline Hanson's One Nation=20

Prepared by Claire Wright for annexure to register Pauline Hanson's = One=20 Nation a Political Party under the Queensland Ele= ctoral=20 Act"=20

is no such thing. Indeed it is not even the same as the list of = purported=20 members supplied to the commissioner.[94] The disparity between the date on the list of = members and=20 the earlier date of the application for registration went unexplained.=20

125 There is no evidence that the Management Committee considered any = applications for membership or admitted anyone to membership of the = organisation=20 except themselves. There is no suggestion that the rules governing = membership=20 and the management committee's non-compliance with them were known to = those who=20 thought they had joined the party or that non-compliance with these = rules was an=20 "established and well known and unquestioned practice in use in the=20 association".[95] In any event, the rules of Pauline Hanson's One = Nation=20 formed the basis of its public registration and "there is now a = significant=20 public interest in the enforcement of the rules of registered political=20 parties".[96]=20

126 I cannot agree with the second defendant's submission that it is=20 abundantly clear from the Starter Kit, the application forms, the = minutes of the=20 annual general meeting of the Support Movement of 4 October 1997, = and the=20 minutes of the special general meeting of the Support Movement in = December 1997,=20 that in the period prior to December 1997 those who paid the higher = level of fee=20 were made members of the political party.=20

127 I conclude that there is a political party, that it was first = registered=20 under the Co= mmonwealth=20 Electoral Act 1918 on 27 March 1997 and later sought and = was=20 granted registration under the Ele= ctoral=20 Act 1992 in Queensland. The constitution filed in support of the = application for registration of the political party under the Co= mmonwealth=20 Electoral Act 1918 on 12 March 1997 is the same as the = constitution=20 originally filed in support of the application for registration under = the Ele= ctoral=20 Act 1992. From its constitution, it can be seen that it was = completely=20 controlled by Ms Hanson, Mr Ettridge and Mr Oldfield and = no other=20 person. There were no other members.=20

128 Thirdly, there is a corporation called Pauline Hanson One Nation = Ltd ACN=20 079 986 913 ("the company"). It was incorporated on = 5 September=20 1997 as a company limited by guarantee. The limit of the guarantee by = each of=20 its members is $1.00. There were five subscribers to the Memorandum and = Articles=20 of Association, Pauline Hanson, David Ettridge, David Oldfield, Andrew = Carne and=20 Stephen Menagh. There is no suggestion that this company has increased = its=20 membership beyond the original five subscribers. One of its objects is: = "to=20 manage and conduct an [sic] Political Party". A company limited = by=20 guarantee is an effective, if perhaps now slightly anachronistic[97] way of incorporating a non-profit association such = as a=20 political party.[98]=20

129 I accept after considering all the evidence that at the time of=20 registration of Pauline Hanson's One Nation as a political party in = Queensland=20 those who controlled Pauline Hanson's One Nation Ltd intended to = restrict=20 membership of the organisations under their control as follows:=20

=B7 only the original five subscribers were members of Pauline = Hanson's One=20 Nation Limited.=20

=B7 only Pauline Hanson, David Ettridge, David Oldfield and perhaps = other=20 elected members of Parliament (when that occurred) were or would be = members of=20 the political party known as Pauline Hanson's One Nation.=20

=B7 all other members of the public who sought to join, no matter = what level of=20 fee they paid, would become members of the incorporated support group, = at that=20 time called Pauline Hanson Support Movement Inc and after = 3 February 1998,=20 Pauline Hanson's One Nation Members Inc.=20

130 At the time of seeking and being granted registration, therefore, = the=20 political party known as Pauline Hanson's One Nation did not have 500 = members=20 although the evidence shows that it had more than 500 people who = believed=20 themselves to be members.=20

131 Ms Hanson, Mr Ettridge and Mr Oldfield knew that = the=20 political party did not have 500 members and knew therefore that it was = not=20 entitled to registration.=20

132 As I am satisfied on the evidence that Pauline Hanson's One = Nation did=20 not have at least 500 members at the time it was registered by the = commissioner,=20 the plaintiff has succeeded in proving the case pleaded in particular in = paragraph 3D(xvii)(b) and (xviii) of the Amended Statement of Claim = delivered=20 5 April 1999, that the Commission's decision to register Pauline = Hanson's=20 One Nation was induced or affected by fraud or misrepresentation. = Contrary to=20 the provisions of the Ele= ctoral=20 Act 1992 s.70(2) and 70(3) the second defendant by its = servant or=20 agent caused to be lodged with the first defendant an application to = register=20 Pauline Hanson's One Nation, which was not then a parliamentary party in = the=20 State of Queensland or which did not have at least 500 members as = required by=20 the Ele= ctoral=20 Act 1992 and the application to register was made either knowing = it was=20 false and untrue or recklessly not caring whether it was true or false. = The=20 membership application form did not contain any provision for a proposer = and=20 seconder, nor were applicants proposed or seconded by members of the = party, nor=20 were the applicants accepted as members by the management committee in=20 accordance with clause 9(1) of the constitution of Pauline Hanson's One = Nation.=20 Those members of management committee involved in the application for=20 registration, being Ms Hanson and Mr Ettridge, must have known = that=20 Pauline Hanson's One Nation had no members except themselves and=20 Mr Oldfield and so they induced the registration by their fraud and = misrepresentation. As was submitted by the second defendant in paragraph = 14 of=20 its written submissions:=20

"It is clear that the representation alleged to be untrue is a = representation=20 that the persons whose names accompanied the application for = registration, were=20 not members of the Queensland Party. It is a matter of indifference to = the=20 Plaintiff's case as pleaded, whether those persons were members of the = Federal=20 party or the Support Movement."=20

The second defendant intended the first defendant to rely and act = upon the=20 false information given by it to register the political party.[99]=20

133 There is nothing to suggest that the commissioner on the evidence = before=20 him was or should have been alert to such fraud or misrepresentation in = this=20 case.=20

134 On 4 December 1997 the commission registered Pauline = Hanson's One=20 Nation as a political party under the Ele= ctoral=20 Act 1992. In doing so, he did not act arbitrarily or = capriciously[100] or so unreasonably that no reasonable person in = the=20 position of the commissioner could have so exercised the power;[101] nor did he fail to take into account relevant=20 considerations or take into account irrelevant considerations;[102] nor did he act at any person's direction.=20

135 However the registration of the party was induced by fraud or=20 misrepresentation in that Ms Hanson and Mr Ettridge as the = management=20 committee members of Pauline Hanson's One Nation who were responsible = for the=20 registration application well knew that it did not have 500 members. = This is not=20 an insignificant matter as it is the basis for the registration of a = non-=20 parliamentary party as Pauline Hanson's One Nation was at that time.=20

136 An administrative decision can be set aside on the basis that it = was=20 induced by fraud or misrepresentation and had the true facts been known = it would=20 not have been made. As Finklestein J said in the leading judgment = in=20 Leung v Minister for Immigration and Multicultural Affairs:[103]=20

"There is a good deal to be said for the view that an administrative = decision=20 which is plainly erroneous should not stand."=20

His Honour considered that an "invalid decision" i.e. an = administrative=20 decision which could "be impugned for jurisdictional error or for a = failure to=20 observe procedural fairness or one that is brought about by fraud or=20 misrepresentation", could be ignored or revoked. The original decision, = having=20 been obtained by a misrepresentation, is not a decision made in the true = exercise of the power conferred by the statute and can be treated as = having no=20 effect.[104]=20

137 Whether or not an invalid decision can be ignored or must = formally be=20 revoked[105] as held by Heerey J in Leung,[106] that a decision is invalid because induced by = fraud or=20 misrepresentation is a proper ground of judicial review.[107]=20

138 There may in certain cases be factors applicable[108] to any discretion the Court might have to refuse = to grant=20 relief in an application of this type even where the conditions = precedent to the=20 exercise of the court's power to grant relief are fulfilled.[109] Any discretion to refuse relief is not found in = the=20 statute under consideration and so could only be found in the exercise = of the=20 inherent jurisdiction of the court. This is not such an unusual or = exceptional[110] case as to warrant the exercise of a = discretionary power.=20

139 There is a public interest that the registration of political = parties=20 should not be obtained on the basis of such crucial information known by = those=20 providing it to be incorrect. The integrity of the electoral process = would=20 otherwise be undermined and any inconvenience of the result is not a = reason in=20 this case for withholding relief. The delay itself in seeking relief is = not this=20 case a sufficient reason to withhold relief.=20

140 The second defendant has not satisfied the Court that there are=20 circumstances which make it just that a remedy should be withheld.[111] Importantly, as I have said earlier, and as = accepted by=20 the parties, the decision cannot affect the result of the election held = in June=20 1998. This is because the only method of disputing an election is by = petition to=20 the Court of Disputed Returns and in no other way.[112] I am not satisfied that the plaintiff had as the = predominant object of the proceedings some ulterior or collateral motive = or=20 purpose other than to show that the political party for which he stood = as a=20 candidate was registered by fraud or misrepresentation.[113] This he has succeeded in doing.=20

141 In particular, it is not a ground to refuse relief that, from the = return=20 of the election writ after the election in 1998, the requirement for 500 = members=20 no longer exists as the party had parliamentary members. There was no = evidence=20 put forward by the second defendant that they were in fact members of = Pauline=20 Hanson's One Nation, again a matter peculiarly within the knowledge of = the=20 second defendant. The matter is different from registration under the=20 Commonwealth Ele= ctoral=20 Act as there is no doubt that when it was registered, it did = have a=20 parliamentary member, i.e. Ms Hanson. I would not therefore = exercise any=20 such discretion to refuse relief.=20

Conclusion=20

142 After reviewing the decision of the commission, I am satisfied = that the=20 decision to register Pauline Hanson's One Nation under the Ele= ctoral=20 Act 1992 was induced by fraud or misrepresentation.=20

143 The order sought by the plaintiff is the setting aside of the = decision of=20 the commissioner and making a decision in substitution thereof. I set = aside the=20 decision of the commissioner made on 4 December 1997 and decide = that=20 Pauline Hanson's One Nation was not entitled to registration as a = political=20 party in Queensland as it did not satisfy the requirement of s.70=20 of the Ele= ctoral=20 Act 1992.=20

144 I will hear argument as to costs.

[1] A copy of the application form is Exhibit 35. The = failure to=20 produce the original was never satisfactorily explained by the second = defendant.=20

[2] Exhibit 31.=20

[3] Second Reading Speech, Hansard, 29 April 1992, = p.4716.=20

[4] Odgers on Pleading and Practice 19th Ed = p. 74. The=20 causes of action on which a plaintiff relies are to be ascertained = exclusively=20 by reference to the statement of claim without regard to the endorsement = on the=20 writ: Renowden v McMullin (1970) 12= 3 CLR=20 584.=20

[5] Fraud must be pleaded distinctly and with = particularity and=20 clearly proved: Krakowski v Eurolynx Properties Ltd (1995) 18= 3 CLR=20 563 at 573; Briginshaw v Briginshaw (1938) 60 = CLR=20 336 at 363.=20

[6] Ele= ctoral=20 Act 1992 s.7(3).=20

[7] Ele= ctoral=20 Act 1992 s.3.=20

[8] Report No. 7 of 1991.=20

[9] Second Reading Speech, Hansard, 29 April 1992 = p.4715.=20

[10] Clause 4.1.=20

[11] Clause 4.28.=20

[12] Ele= ctoral=20 Act 1992 s.69.=20

[13] Ele= ctoral=20 Act 1992 s.84(1)(a).=20

[14] Ele= ctoral=20 Act 1992 s.97(2)(g).=20

[15] Ele= ctoral=20 Act 1992 Part 7 and the Schedule.=20

[16] Ele= ctoral=20 Act 1992 Schedule cl.314AB.=20

[17] cf Cameron v Hogan (1934) 51 = CLR=20 358 at 384.=20

[18] [1993] 1 Qd R 10 at 20.=20

[19] Edgar and Walker v Meade (1916) 23 CLR = 29 at=20 43-44; Baldwin v Everingham (supra) at 19-20.=20

[20] Baldwin v Everingham (supra) at 24.=20

[21] Ele= ctoral=20 Act 1992 ss.=20 3, 70(4)(e).=20

[22] Ele= ctoral=20 Act 1992 ss.=20 3, 70(2).=20

[23] Ele= ctoral=20 Act 1992 subs.70(3).=20

[24] Subs.70(4)(c) requires the person who is to be the = political=20 party's registered officer to give his or her name and address.=20

[25] cf Baldwin v Everingham (supra) at 23.=20

[26] Minister for Immigration and Ethnic Affairs v Wu = Shan=20 Liang (1996) 18= 5 CLR=20 259 at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ.=20

[27] (1982) 149= CLR=20 27 at 38; see also Robinson v Western Australian Museum = (1977) 13= 8 CLR=20 283 at 302-303.=20

[28] (1998) 72 ALJR 1270 at 1280.=20

[29] (supra) at 73.=20

[30] Australian Conservation Foundation Inc v The=20 Commonwealth (1980) 14= 6 CLR=20 493 at 530-531, 537, 547-548; Onus v Alcoa of Australia Ltd = (supra)=20 at 36, 43, 49-50, 73-74; Australian Institute of Marine and Power = Engineers v=20 Secretary, Department of Transport (1986) 71 ALR 73 at 81 per = Gummow J;=20 Shop Distributive and Allied Employees Association v Minister for = Industrial=20 Affairs (SA) (1995) 18= 3 CLR=20 552 at 558; Allan v Development Allowance Authority (1998) = 152 ALR=20 439 at 443, 446-447, 457.=20

[31] (supra) at 1281 per Gaudron, Gummow and = Kirby JJ.=20

[32] Alphapharm Pty Ltd v Smithkline Pty Ltd = (1994) 121 ALR=20 373 at 395.=20

[33] Ele= ctoral=20 Act 1992 subs.180(1) item 4; cf Re McHattan (1977) 18 ALR = 154 at=20 157.=20

[34] Tooheys Ltd v Minister for Business and Consumer = Affairs (1981) 54 FLR 421 at 437; United States Tobacco Co v = Minister for=20 Consumer Affairs (1988) 20 FCR 520 at 527.=20

[35] cf Alphapharm Pty Ltd v Smithkline Pty Ltd = (supra) at=20 403 per Gummow J.=20

[36] Ele= ctoral=20 Act 1992 s.97(2)(g).=20

[37] Ele= ctoral=20 Act 1992 s.84(1)(a).=20

[38] Ele= ctoral=20 Act 1992 Part 7.=20

[39] cf Alphapharm Pty Ltd v Smithkline Pty Ltd = (supra) at=20 388.=20

[40] (1995) 38 ALD 366 at 372.=20

[41] Section=20 141.=20

[42] Ele= ctoral=20 Act 1992 subs.180(2)(c).=20

[43] [1993] 2 Qd R 663 at 665.=20

[44] Woods v Beattie, ex parte Woods [1995] 1 Qd = R 343 at=20 345.=20

[45] Sharples v O'Shea (unreported, Supreme Court = of=20 Queensland, CA No. 6318 of 1998, 31 August 1998) at p. 7.=20

[46] See Hunter Valley Developments Pty Ltd v = Cohen (1984)=20 3 FCR 344 at 348-349; Chalk v Commissioner for = Superannuation (1994)=20 50 FCR 150.=20

[47] Hoffmann v The Queensland Local Government = Superannuation=20 Board [1994] 1 Qd R 369; Lucic v Nolan (1982) 45 ALR 411; = A'Hearn=20 v Comcare (1993) 18 AAR 22 at 24 per Hill J.=20

[48] Hoffmann v The Queensland Local Government = Superannuation=20 Board (supra) at 373.=20

[49] See Affidavit of D J O'Shea, paragraph 21.=20

[50] Thorp v Holdsworth (1876) 3 Ch D 637 at 639; = Dare v=20 Pulham (1982) 14= 8 CLR=20 658 at 664; Banque Commerciale SA en liquidation v Akhil Holdings = Ltd=20 (1990) 16= 9 CLR=20 279 at 286-287, 288, 302-303; Tyson v Brisbane Market Freight = Brokers Pty=20 Ltd (19= 94) 68=20 ALJR 304 at 310-311.=20

[51] 15 October 1997=20

[52] Ele= ctoral=20 Act 1992 subs. 70(4)(f).=20

[53] Ele= ctoral=20 Act s.70(2).=20

[54] Ele= ctoral=20 Act 1992 s.3.=20

[55] The EARC Report clause 4.30.=20

[56] Section=20 48.=20

[57] The incorporated body was Pauline Hanson's Support = Movement=20 Inc which had a different constitution from Pauline Hanson's One Nation = and=20 which did not apply for registration as a political party.=20

[58] Ele= ctoral=20 Act 1992 s.70(3).=20

[59] Clause 4.51.=20

[60] (1987) 7 NSWLR 560 at 567.=20

[61] (1998) 72 ALJR 841 at 859; 51 ALR 490 at 515. See = also=20 Clayton v Heffron (1960) 10= 5 CLR=20 214 at 247.=20

[62] See also Australian Broadcasting Corporation v = Redmore Pty=20 Ltd (1989) 16= 6 CLR=20 454.=20

[63] See Turner v King [1992] 1 Qd R 307 at 312 = per=20 Macrossan CJ as regards security of ballot papers; Fenlon v Radke = [1996]=20 2 Qd R 157 as regards failure to comply with s.116(3);=20 Robertson v Knuth [1997] 1 Qd R 95 as regards non-compliance with = s.336=20 of the Lo= cal=20 Government Act 1993 and Scarcella v Morgan [1962] VR 201. =

[64] Project Blue Sky Inc v Australian Broadcasting=20 Authority (supra) at paragraph [93].=20

[65] Krakowski v Eurolynx Properties Ltd (supra) = at 576.=20

[66] Ele= ctoral=20 Act 1992 s.3.=20

[67] Ele= ctoral=20 Act 1992 s.70(4)(e).=20

[68] Co= mmonwealth=20 Electoral Act 19= 18.=20

[69] Parliamentary Electorates and Elections Act = 1912.=20

[70] Clauses 4.31, 4.32.=20

[71] Clause 4.48(e).=20

[72] Part of Exhibit 1.=20

[73] Exhibit 28.=20

[74] That confusion is referred to in a letter dated=20 24 September 1997 by Claire Wright, described as Branch = Co-ordinator,=20 written on Pauline Hanson's One Nation letterhead. That letter stated:=20

"It has come to our attention that there is some confusion over the=20 membership books and receipt books included in the kit. A receipt and = card is=20 ONLY issued to $5 support members joining your branch. If people = fill out=20 the One Nation joining forms included in your kit they MUST be = sent to=20 head office so we can process them correctly. Some branches have been = issuing=20 cards to full paying members and keeping the joining forms as a record. = We need=20 the joining forms in Sydney so they can issued with an official One = Nation=20 membership card which is different to the supporters card. Their = information=20 also needs to be entered on the database otherwise we do not know that = they are=20 a member and they will not receive any mail outs and we will not know = our=20 correct membership levels. This is a very important matter and I hope = every=20 branch is clear on this if not please feel free to give me a call."=20

This letter was tendered by the second defendant whose counsel on its = tender=20 said, "There will be some evidence about it from Ms Wright." No = such=20 evidence was called.=20

[75] (1959) 10= 1 CLR=20 298.=20

[76] (1994) 18= 1 CLR=20 387 at 402 per Deane, Dawson and Gaudron JJ.=20

[77] See also Weissensteiner v The Queen (1993) = 17= 8 CLR=20 217 at 227.=20

[78] Exhibit 9 PA2 p. 24.=20

[79] The application to register Pauline Hanson's One = Nation as a=20 political party for House of Representatives and Senate Elections shows = that=20 David Ettridge was its secretary.=20

[80] Part 5 Division 2 s.48 specifies that an = incorporated=20 association may, by special resolution, amend its rules. Section 2 = defines=20 "special resolution" to mean "a resolution passed at a general meeting = of the=20 association by the votes of 3/4 of the members who are present and = entitled to=20 vote on the resolution".=20

[81] 15 October 1997.=20

[82] 4 December 1997.=20

[83] It was registered on 15 July 1997.=20

[84] The licensing agreement between Ms Hanson, One = Nation=20 and Pauline Hanson Support Movement Incorporated.=20

[85] Clause 7(2).=20

[86] Clause 9(1).=20

[87] Exhibit 17.=20

[88] Exhibit 9 PA2 p. 10.=20

[89] By-laws p. 20: Exhibit 9 PA2.=20

[90] Exhibit 19.=20

[91] Exhibit 20.=20

[92] Conservative and Unionist Central Office v = Burrell=20 [1980] 3 All ER 42 at 54-55 per Vinelott J; Halsbury's Laws of=20 Australia paragraph 435 - Voluntary Associations, (2) Formation and=20 Constitution of Non Profit Associations (c) Constitution and Rules of=20 Unincorporated Associations.=20

[93] Exhibit 48 Item 7.=20

[94] Exhibit 1 Item 1(a).=20

[95] cf Lewis v Heffer [1978] 1 WLR 1061 at 1076; = Burton=20 v Murphy [1983] 2 Qd R 321 at 348.=20

[96] Baldwin v Everingham (supra) at 24; cf = Cameron v=20 Hogan (1934) 51 = CLR=20 358 at 370, 378.=20

[97] McQueen R and McGregor-Lowndes M, "The Company = Limited by=20 Shares and Guarantee" (1991) 9 C & SLJ 248.=20

[98] Sievers AS, "Associations and Clubs Law in = Australia and New=20 Zealand", 2nd ed, Federation Press, 1996 at p. 76.=20

[99] Krakowski v Eurolynx Properties Ltd (supra). =

[100] cf Federal Commissioner of Taxation v Bayly = (1952) 86 = CLR=20 506 per Williams J.=20

[101] Associated Provincial Picture Houses v = Wednesbury=20 Corporation [1948] 1 KB 223; Chapman v Tickner (1995)=20 55 FCR 316 at 368; Attorney-General (NSW) v Quin (1990) 170 = CLR 1=20 at 36, 37 per Brennan J.=20

[102] Except the considerations he took into account = which were=20 infected by fraud or misrepresentation.=20

[103] (1997) 150 ALR 76 at 85.=20

[104] Leung v Minister for Immigration and = Multicultural=20 Affairs (supra) at 76, 90.=20

[105] The power of revocation is given by Acts = Interpretation=20 Act 1954, s.24AA.=20

[106] See discussion in Campbell E, "Effect of = Administrative=20 Decisions Procured by Fraud or Misrepresentation" (1998) 5 AJ Admin L = 240.=20

[107] Lazurus Estates Ltd v Beasley [1956] 1 QB = 702 at=20 712-713, 722; R v Ashford, Kent, Justices; Ex parte Richley = (No 2)=20 [1956] 1 QB 167; cf Judicial Review Act 1991 s.20(2)(g).=20

[108] Bollag v Attorney-General (Cth) (1997) 149 = ALR 355=20 at 373.=20

[109] Lamb v Moss (1983) 49 ALR 533 at 546.=20

[110] Re Wilcox; ex parte Venture Industries Pty = Ltd=20 (1996) 137 ALR 47 at 67.=20

[111] R v Commonwealth Court of Conciliation and = Arbitration;=20 ex parte Ozone Theatres (Aust) Ltd (1949) 78 = CLR=20 389 at 400.=20

[112] Ele= ctoral=20 Act 1992 Part 8.=20

[113] cf Packer v Meagher (1984) 3 NSWLR 486 at = 492-493;=20 Rajski v Bainton (1990) 22 NSWLR 125 at 131.

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