Free v Kelly S94/1996 [1996] HCATrans 268 (29 July 1996)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S94 of 1996

B e t w e e n -

ROSS VINCENT FREE

Petitioner

and

JACQUELINE MARIE KELLY

Respondent

Summons for direction

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 JULY 1996, AT 10.35 AM

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC: I appear for the petitioner in this matter. (instructed by McClellands)

MR R.E. WILLIAMS, QC: I appear for the respondent. (instructed by Minter Ellison)

MS S.C. KENNY: Your Honour, I seek leave, pursuant to section 359 of the Electoral Act to enter an appearance and to be represented and to be heard upon the hearing of the petition. (instructed by the Australian Government Solicitor)

HIS HONOUR: What is your interest in it?

MS KENNY: My interest is threefold, your Honour. The Electoral Commission, pursuant to section 7 of the Electoral Act has responsibility to the administration and management of the election in dispute. The Electoral Commission would seek leave to appear in order to assist the Court with such material concerning that election as the Court should desire it to give and, of course, your Honour, it is the usual practice to accord the Commission leave in such cases.

HIS HONOUR: Very well, you shall have leave, Ms Kenny.

MS KENNY: Thank you, your Honour.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: I appear for the Attorney-General who contemplates intervening in the event there is a live constitutional matter. (instructed by the Australian Government Solicitor)

HIS HONOUR: In the event of some constitutional issue?

MR GRIFFITH: He would contemplate intervening in the event there is a live constitutional issue, your Honour, so at this stage it is a conditional appearance.

HIS HONOUR: Yes. I shall give you leave to appear today, Mr Solicitor.

MR GRIFFITH: That is all I require, your Honour.

HIS HONOUR: If the matter goes further, then I think you would have to renew your application on the next occasion.

MR GRIFFITH: Yes, your Honour, although if there is a live constitutional issue, it may be appearances of right subject to the question of Court of Disputed Returns, your Honour.

HIS HONOUR: That is a very interesting problem.

MR GRIFFITH: Your Honour, we hope that can be avoided.

HIS HONOUR: Yes. Yes, Mr McCarthy.

NEWSPEAKER

MR McCARTHY: In relation to this matter firstly, your Honour, there has been - - -

HIS HONOUR: I have read the petition.

MR McCARTHY: There has been the requisite publication and there has been compliance with section 358 of the Act so that there can be proceedings in relation to the petition. Now, your Honour, the essence of the petition is fairly simple. The petitioner says of the respondent, firstly, that at the date of nomination for the elections that were held on 2 March, which was 9 February 1996, contrary to section 44 of the Constitution, the respondent was a serving full-time permanent officer of Australia's naval and military forces, being that part known as the Royal Australian Air Force on that day and therefore was precluded, having not transferred to the Reserve at the relevant time, or otherwise have resigned her commission. She was incapable, as a consequence, at the date of nomination of being elected as a member of the House of Representatives.

Secondly, and in any event, the petitioner also says that the respondent as at the relevant date had not - - -

HIS HONOUR: Just on that first question, what is the proposition: that she does not come within the description of a person who is in "receipt of pay as an officer or member of the naval or military forces of the Commonwealth"?

MR McCARTHY: It comes within - I will just open the relevant section - it is quoted in paragraph 15 of the petition, that the respondent is caught by the proviso to section 44(iv) which refers to:

any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

It seems to be stated in a double negative, but what that has amounted to in terms of understanding and practice in Australia is that one can be a member of the Army Reserve or the Armed Forces Reserve and not being on full-time duty can - one is qualified to nominate and be elected to the House of Representatives or the Senate under the Constitution, but that if one is a full-time member - that is someone who is wholly employed by the Commonwealth, then one is in the position, I suppose analogously, though I would not use it precisely in this sense, but one is analogously in the position of someone who is holding an office of profit under the Crown and one would be excluded in that way from election to the Parliament. In other words, a full-time officer is excluded and that has been reflected, not only in terms of constitutional theory but in actual statutory practice, whereby there have been various legislative provisions in Australia, your Honour, whereby steps are facilitated for candidates or persons who are officers or serving members of the armed forces who propose to stand for Parliament to go through an arrangement whereby they become a member of the Reserve if they do not resign from the Armed Forces.

HIS HONOUR: Yes, I see.

MR McCARTHY: What has happened here is that the operative date in terms of Sykes v Cleary, which is only reflective of our electoral law, is that the date is the date for nomination and the election process begins the date for nomination - - -

HIS HONOUR: Now, the issues of fact then on this part of the case are that she held a commission, it was a full-time commission, and she held it on the date of nomination.

MR McCARTHY: Yes, and, I suppose, proving that, that she resigned at a date after - - -

HIS HONOUR: After - - -?

MR McCARTHY: After that date, yes.

HIS HONOUR: Prior to the election.

MR McCARTHY: But prior to the election, yes.

HIS HONOUR: Now, is there any dispute as to those facts?

MR McCARTHY: They are not agreed. I would need a subpoena to the Department of Defence to bring the file in to put the material before - - -

HIS HONOUR: They are not agreed, Mr Williams?

MR WILLIAMS: It is not agreed at the moment, your Honour. Your Honour, the respondent's position is this - I might perhaps shorten the proceedings somewhat if I indicate it now: on a close analysis, your Honour, of this Court's decision in Sykes v Cleary, it is likely that the respondent has not come, albeit inadvertently, within section 44(i) -that is a matter that my friend has not yet got to - regarding citizenship and, perhaps, also, is caught by section 44(iv), although there are some arguments but they do not concern questions of fact. I apprehend there is no dispute as to the facts that have just been put.

The respondent's position is this, your Honour, that unless one of the intervening parties were to seek to argue that Sykes v Cleary was incorrectly decided, the respondent would accept that the election be declared void and that the matter go back to the people of Lindsay for a fresh election. As I understand it, the real disagreement between the petitioner and the respondent is as to the consequences of the respondent's failure to come within the temporal terms of section 44(i) in that we would argue that the Court declare the election void and that there be fresh elections. As I understand it, the petitioner seeks to argue that on the election being declared void - or, rather than the election being declared void, the proper order is that he be declared elected.

MR McCARTHY: No, I do not.

MR WILLIAMS: You do not?

MR McCARTHY: No, I do not.

MR WILLIAMS: Well, it may be that there is no issue between us, your Honour. It may be that there might be - we apprehended that there was controversy as to what the consequences would be of the respondent not coming within the terms of section 44.

HIS HONOUR: If what you say is right, the sensible thing to do, I would have thought, was for a declaration to be made instanter

MR WILLIAMS: Perhaps this matter ought to have the same fate as the first matter, your Honour, and we should talk for a few moments. My understanding was that there was a disagreement in terms of the consequences which would flow from it being established that the respondent did fail to meet the terms of section 44.

MR McCARTHY: Perhaps I could clarify this.

MR WILLIAMS: Paragraph 3 of the petition.

MR McCARTHY: In the petition certainly there is sought as one of the orders that the Court declare that the petitioner be duly elected as a member of the House of Representatives for the Division of Lindsay but the way in which it was proposed to put that, your Honour, is in this form, that while the respondent may be disqualified or incapable of being elected, the election does not entirely fail. The votes that have been recorded are not wholly ineffective. It is a preferential voting system and what would be sought there by the petitioner is a special count, that is, that the ballot in the election be, under the direction of this Court, be re-counted on the basis that the petitioner is excluded and the petitioner's preferences be distributed amongst the other candidates in the count. In other words, there be a special count of the ballot for Lindsay and that we would be seeking a special count as against the election being declared void and the consequence orders flowing from there of there being a by-election for the seat.

Now, obviously, in the way - and I can understand how this would be so - that it has been communicated to my friend or understood, it has created the misapprehension that we are seeking in this matter an order, per se, that the petitioner be returned as the member, as having the next highest votes, assumedly, in that election. That is not so. That is not the basis of - - -

HIS HONOUR: What you are seeking then is that - - -

MR McCARTHY: That there be a special count.

HIS HONOUR: - - - the election of Ms Kelly be declared void - - -

MR McCARTHY: Be declared void and there be a special count.

HIS HONOUR: And that there be a count and a declaration be made in the election in accordance with the count that is then made.

MR McCARTHY: Yes.

HIS HONOUR: Yes. And that, I take it, is resisted by Mr Williams?

MR McCARTHY: Yes, your Honour. That clarifies the situation, and perhaps there may be some value also, your Honour, in what Mr Williams has said if we could perhaps have some moments to think about that also.

HIS HONOUR: Yes, very well. You will have a couple of things to think about then, Mr McCarthy, but perhaps I should hear what Ms Kenny and the Solicitor have to say before we adjourn.

MS KENNY: Your Honour, on the matter of relief, the Electoral Commission would support the solution reached in Sykes v Cleary, that is, that there be a by-election in consequence of the declaration if the election be declared void for the reasons expressed by the Court in Sykes v Cleary. So, I would seek leave to be heard upon that matter.

HIS HONOUR: Yes. Mr Solicitor, do you wish to say anything?

MR GRIFFITH: Your Honour, I indicate the Attorney only seeks to intervene inasmuch as a constitutional issues arises. I have no submissions.

HIS HONOUR: Yes. In that case I will stand this matter over also until - well, the other one is stood over until 11.30. This one can stand over until 11.30 but, more accurately, in relation to both of them, perhaps you can let my associate know, Mr McCarthy, when it is convenient to return. I would like to resume, however, not later than a quarter to 12, if that is possible.

MR McCARTHY: Certainly, your Honour.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:

MR McCARTHY: Your Honour, there has been further discussion between the parties as to what are the issues that are involved, and it would seem that we will be able to get to a position where the Court can give directions on the basis of an agreed statement of facts and that there would not be need, in the light of various things that have been said to me by Mr Williams on behalf of the respondent and Dr Kenny for the Electoral Commission, for an evidentiary case at this stage to be developed over any of the issues concerning the status of the respondent and that would leave, in terms of the issues for the Court on what we would urge would be, a further occasion for directions, the settling of questions that arise - - -

HIS HONOUR: What are the issues left?

MR McCARTHY: The issue would appear to be whether there should be a special count or whether the election should just be declared void and consequent orders flow from that.

HIS HONOUR: There is no doubt, I gather, but that the election should be declared void.

MR McCARTHY: The election of the respondent, yes.

HIS HONOUR: The election of the respondent should be declared void.

MR McCARTHY: Yes.

HIS HONOUR: And then the question is what consequence follows from that. That is one issue. Is there any other?

MR McCARTHY: Presently, as I understand it from Mr Williams, there is no other issue, your Honour.

HIS HONOUR: Is there any reason why that issue should not be decided by me tomorrow morning?

MR McCARTHY: Only this, your Honour, that - - -

HIS HONOUR: You have got a person who has been declared elected to the House of Representatives and that person's election is to be declared void, it is not desirable that there should be a vacancy or an uncertainty with respect to membership for any length of time at all.

MR McCARTHY: That must be so, your Honour. Your Honour, I am not certain if any of the parties anticipated that the argument about alternative relief would be taken so quickly in relation to the Court. In the context that your Honour puts forward, would some time that would allow, for instance, the presentation of written submissions as to alternative courses of action and then the allocation of a date, even if that date is allocated today, along with the time for submissions, be an alternative course that your Honour would consider?

HIS HONOUR: I would certainly want to give a reasonable time for the preparation of argument but I do not know why the preparation for argument should take very long. It is a question of what, in the circumstances, is the appropriate order to make. The frames of reference, I would have thought, are fairly clearly defined.

MR McCARTHY: That is so. I would want to put written submissions to the Court and to the other parties in relation to this, if your Honour thought that that was a convenient course to adopt. I could be - given the now context, I would be ready within a matter of days, your Honour, to put the argument or as soon as it is convenient to your Honour to put it.

HIS HONOUR: The difficulty is this, you see, that the Full Court is sitting here next week and then the Court goes for its annual sittings to Adelaide for the following week, so that there would not be a period during that fortnight when it would be convenient to entertain the lengthy argument with respect to the matter. It is for that reason that I suggested that the matter might be listed at some time tomorrow or, for that matter, any other day this week.

MR McCARTHY: I see. Would your Honour also consider a date as soon as convenient after the Court has returned from Adelaide.

HIS HONOUR: That would be possible, though I will not be available at that time myself as I have undertaken to attend the British Commonwealth Law Conference overseas at that stage. But it would be a possibility, but it is not one that I favour at the moment, Mr McCarthy, because of the delay that is involved. If there is to be a by-election, for example, the by-election should take place as soon as possible. If there is to be a re-count and an election of some other person, then that person obviously should be able to take his or her seat in the House of Representatives at the next session of the Parliament.

MR McCARTHY: Yes, your Honour. Would your Honour pardon me for a moment. My friend might just state his position.

MR WILLIAMS: Your Honour, we at the outset wanted to indicate to the Court what our position was as directly and frankly as we could. We took the view, in the adjournment that we have just had, that the most appropriate way to make the proper concessions and admissions which we desire to make would be by the facility of an agreed statement of facts. It just goes through my mind, your Honour, that probably that could be done by Friday of this week, having regard to what your Honour was saying about the timetable. Perhaps the matter could be dealt with on that day. That is not a day your Honour has mentioned.

HIS HONOUR: Friday is satisfactory.

MR WILLIAMS: We certainly would be in a position very shortly to make these concessions and admissions and put submissions in relation to what the consequences are very shortly, certainly by the end of the week.

HIS HONOUR: The relevant facts, as I understood them, are restricted to the membership of the Royal Australian Air Force, the holding of a commission, the receipt of pay on a full-time basis as at the date of nomination.

MR WILLIAMS: There is a second series of facts which relate to the citizenship of the respondent at the relevant time.

HIS HONOUR: How does that arise?

MR WILLIAMS: It is likely that she had not complied with the New Zealand citizenship laws in relation to renouncing citizenship.

HIS HONOUR: That could be dealt with also.

MR WILLIAMS: Very quickly, your Honour. None of the matter are complex in terms of their facts. We are in a position to make very clear admissions and statements as to what the facts are. I think before your Honour came back on the Bench we were proposing a three-week timetable whereby an agreed statement of facts would be provided and whatever argument, including presumably my friend's application for leave to reargue Sykes v Cleary would be made, and perhaps the whole matter disposed of at that time. Speaking for myself, I do not see why perhaps it could not happen by the end of the week. I am reluctant to embrace your Honour's proposal about tomorrow. It is just that I am not sure whether we could formally get instructions to do all this by tomorrow. Perhaps Wednesday, but - - -

HIS HONOUR: The reason why I am endeavouring to get counsel, as it were, to the barrier is for obvious speed.

MR WILLIAMS: Yes. We do not wish to resist that, your Honour. I have not spoken to Dr Kenny about it.

MS KENNY: I would support an early resolution of this matter, your Honour.

HIS HONOUR: Yes. Mr McCarthy, what about this week?

MR McCARTHY: With my friend's assistance, your Honour, I would make application to take the date on Friday, if that is convenient. Your Honour, that would be a date, as I would understand it, before the argument, such as it is, to be developed in front of you and for a decision to be made by your Honour, sitting as a Court of - - -

HIS HONOUR: Yes.

MR McCARTHY: Your Honour, the Court sitting as a Court of Disputed Returns of course sits as persona designata. It is not - it is one of the special jurisdictions of the High Court or one of the special roles that the High Court has under the Electoral Act. Decisions that are made in that context, as I had understood, and others I think have similarly understood, are usually not regarded as having the binding precedent or the strict binding precedent because they are regarded as unappealable, amongst other things, as decisions of the usual venue of the Court. Of course this Court is not bound by any decisions, including any of its past decisions but, your Honour, I would be seeking, in the argument to be developed in front of you, to say that an approach that seemed to find favour in Sykes v Cleary as to an approach to a re-count in a House of Representatives seat as against the order for a by-election should, at least in the most general terms, be reconsidered in this way, that while every judgment, every order that is made in the Court of Disputed Returns is particular to that case and represents what the Court considers is just and equitable as its mandate goes for that particular case, it is the fact that we have very few decisions relevantly in this area of the law and every decision is important.

I would be seeking to put before you a series of considerations, your Honour, which would require the taking into account of an approach to the question of a re-count as was considered in Sykes v Cleary. In that case your Honour sat with the six other Judges of the High Court. It is a very authoritative decision in terms of being one of two recent decisions of the High Court that had numbers of that sort, the other being Evans v Crichton- Brown. Now, your Honour, I am uncertain as to whether, given that context, it is appropriate to put to you as to whether the Bench, for consideration of this argument, should in actual fact be the equivalent of the Bench in Sykes v Cleary. That is an immediate concern of mine in relation to the forum over this, that your Honour may well meet me of saying that your Honour could see some point in various analogies and arguments that one developed but there was a decision of the High Court at the very strongest level that would preclude you from really giving consideration to that.

Your Honour, in those circumstances, it would seem to me - and I foreshadow it now and it may well be your Honour asked me to do it now - as to whether it is appropriate to say to you that in actual fact the petitioner should make an application that the Court be constituted for the purposes of the argument as it was constituted in Sykes v Cleary - not in terms of the personnel but in terms of the numbers that were involved.

HIS HONOUR: Mr McCarthy, first of all, this Court does not sit as a persona designata. It sits as the Court sitting as the Court of Disputed Returns. There is a Full Bench decision, as you say, which had to consider the problem which now arises and no doubt it is a decision upon which Mr Williams would rely and perhaps on which Ms Kenny would also place some reliance. Whether this matter should be delayed in order that you could raise the question again and have it reconsidered by a Full Bench is something which, at the moment, I would not be prepared to determine, not having seen anything of the quality or your argument. So I propose therefore to list it for next Friday. I would suggest that written submissions be exchanged and filed by midday Thursday and on Friday morning you can renew the application that you have just made. If there is substance in that application, in other words that the question of the exercise of the discretion, if it be a discretion, should be canvassed again by a Full Bench, then I will refer the matter to the Full Court. Otherwise I will decide the matter on Friday.

MR McCARTHY: Would your Honour wish to have any particular formal application made - - -

HIS HONOUR: No, that is not necessary. You have given an intimation of the application that you seek to be made. If you wish to spell it out further in your written submissions, well and good. But I think that the written submissions should be prepared on the basis that (a), if you are seeking to have the matter sent to the Full Court it should address that, (b) on the hypothesis that it is not sent to the Full Court, address that. So that on either hypothesis, you would be ready to deal with the argument and the order that you are seeking.

Perhaps before I make that final intimation I should ask Ms Kenny whether that is agreeable to her.

MS KENNY: It is, your Honour. From my point of view it is more than satisfactory that the matter be dealt with on Friday.

HIS HONOUR: Yes.

MR McCARTHY: And that would be Friday here in Canberra?

HIS HONOUR: Yes.

MR McCARTHY: Thank you. Your Honour, the only other matter that I would ask in relation to that is that perhaps for the sake of completion could the parties have liberty to apply in relation to that, in case there is something between now and Friday?

HIS HONOUR: Yes, certainly. Mr Solicitor, I take it that you have no interest in the matter on Friday.

MR GRIFFITH: No, your Honour.

HIS HONOUR: Very well.

MR GRIFFITH: Unless the Attorney takes an interest, your Honour, but at the moment, no.

HIS HONOUR: It is surprising if he were to.

MR GRIFFITH: Your Honour, that is so, but surprises happen.

HIS HONOUR: Very well. This matter will be adjourned until Friday next at 10.15 am and I give directions that the parties who propose to appear on that occasion should exchange written submissions by Thursday noon and file them at that time in the Court. All parties to have liberty to apply in the meantime. Costs of today reserved, I presume?

MR McCARTHY: Thank you, your Honour.

HIS HONOUR: Costs will be reserved.

AT 11.58 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 2 AUGUST 1996