Free v Kelly S94/1996 [1996] HCATrans 272 (2 August 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 FRIDAY, 2 AUGUST 1996, AT 10.20 AM

(Continued from 29/7/96)

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC: May it please your Honour, I appear with my learned friend, MR J. HATZISTERGOS, for the petitioner in this matter. (instructed by McClellands)

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

MS S.C. KENNY: I appear for the second respondent. (instructed by the Australian Government Solicitor

MR McCARTHY: Your Honour, the directions that were given by you on Monday have largely been complied with, however with some significant developments in terms of the position that is being taken by the first respondent concerning the issues before the Court. I have discussed these matters with my learned friend, Mr Williams, and with Dr Kenny, and if it is considered appropriate by yourself, Mr Williams would like to say something about the submissions that he has put forward and the present position of the respondent in this case.

HIS HONOUR: Yes. Now, before Mr Williams puts his submissions, so far as the facts of the case are concerned, can we take it that - what is the petitioner's attitude to the facts which are annexed to the submissions of the two respondents?

MR McCARTHY: I have discussed the matter with Dr Kenny and Mr Williams, your Honour, as I did on Monday. It had been agreed then that there would be a draft produced by the AEC and by the first respondent and sent to the petitioner. They only arrived yesterday. I have read both of them. I agree with the facts that are there and I have been, I suppose, put upon in a light sense by counsel for the two respondents. I will have that document consolidated and put into Court. I do not disagree with any of the facts that are stated there.

HIS HONOUR: Yes. The matter can go forward on the footing, so far as the petitioner is concerned, of acceptance of the facts set out in those two statements?

MR McCARTHY: It will, and further than that, I will arrange for there to be a consolidated document to be produced, signed by the other two counsel and put with the papers in the Court.

HIS HONOUR: Yes, thank you, Mr McCarthy. Mr Williams, on the facts first of all, can we take it that so far as you are concerned you accept the facts as set out, not only in your own statement but also set out in Dr Kenny's statement?

MR WILLIAMS: We do, your Honour.

HIS HONOUR: Could I ask Dr Kenny. What is the attitude of the Australian Electoral Commission?

MS KENNY: Your Honour, so far as the facts set out by the first respondent are concerned, we have no objection to any of those facts.

HIS HONOUR: And are prepared to have the matter determined on the footing of those facts?

MS KENNY: Yes, your Honour, we are. We have no knowledge, of course, of those particular facts.

HIS HONOUR: Very well. Mr Williams.

MR WILLIAMS: Your Honour, we have stepped back from the brink to this extent that after Monday's hearing, when we prepared the statement of fact which contains various facts adverse to the first respondent's position and made concessions based upon those facts, there are two live issues, if we can put it like that, which we think still remain to be determined about which we are unable to make admissions.

The first of those is this, your Honour, that if I might take the nationality point first, whilst most of the facts are determined - I should say whilst all of the facts are determined by the admissions made in our statement, there remains in accordance with the decision of Sykes v Cleary a live issue and that is the extent to which the first respondent took all reasonable steps to renounce her foreign citizenship. That is not a matter that we wish to concede, indeed the first respondent would positively assert that in the circumstances she took all reasonable steps to renounce her citizenship. As we understand Sykes v Cleary - - -

HIS HONOUR: Before you go on, when you say she took all reasonable steps, are there any steps other than the taking of the oath on the occasion of the Australian citizenship which is stated in your statement of facts that is relied on?

MR WILLIAMS: There is no other positive step that we point to.

HIS HONOUR: No other positive step?

MR WILLIAMS: No other positive step. The circumstances that we would point to include the fact that sometime after swearing that oath the first respondent became a serving officer in the Royal Australian Air Force and we would point to that fact, together with her close connection with Australia since 1985 and lack of any real connection with her country of birth, and attempt to distinguish the decision of this Court which seems close to the first respondent's position - I have forgotten the name of the Swiss gentleman who was, I think the second respondent in Sykes v Cleary. We accept that on a superficial reading of Sykes v Cleary, in so far as it related to the second respondent's position, the first respondent here is in much the same position and we note that five of the seven Judges in Sykes v Cleary held that the Swiss second respondent, if I might call him that, failed to take reasonable steps, in very similar circumstances, in circumstances analogous to the position the first respondent finds herself in here. But we would point to several distinct differences in circumstances, the main one being the fact that she, after being naturalised as an Australian citizen, became a serving officer in the Royal Australian Air Force. We would also point to the differences between the position in New Zealand and the position in Switzerland with regards to the Citizenship Acts of those two countries.

So that is the positive act and those are the circumstances which we would rely upon to distinguish the two cases. And we note that it was only by a majority in Sykes v Cleary that analogous case was determined against the respondent there.

HIS HONOUR: I do not know what you mean by only a majority; it was a substantial majority.

MR WILLIAMS: It is a discretionary matter, your Honour. The phrase is used - I recollect all the circumstances of the case would be taken into account and obviously minds differed and it is a different case.

HIS HONOUR: There are two problems. The first is are you seeking to have Sykes v Cleary reconsidered; the second is are you seeking to have it distinguished?

MR WILLIAMS: On the nationality point, neither. We are not seeking to have it either distinguished or are we seeking to make any challenge. We accept what falls in Sykes v Cleary. We simply say that we come within the exception to a rule which in that judgment was held not to be fatal, that is that it was not fatal to a person's eligibility that they had failed to renounce their citizenship of a foreign country. The question was whether or not they had made all reasonable steps. So we do not seek to overturn Sykes v Cleary, we do not seek to distinguish it, we simply seek to offer evidence - - -

HIS HONOUR: Do you apply the principle to the facts of this case?

MR WILLIAMS: Yes.

HIS HONOUR: I understand that, yes.

MR WILLIAMS: It is a short matter, your Honour. It would not take, one would imagine, very much time.

HIS HONOUR: Would you seek to adduce any oral evidence?

MR WILLIAMS: No, but I have to say that it has occurred to me since the statement of facts went on that it may be necessary to add some documentary material to the statement of facts if we had that opportunity. For example, it occurred to me since these documents went on - or our documents went on on Wednesday that it would probably be desirable for the Court to see the oath which the first respondent swore in taking out her commission. That is one matter that occurred to me. Another matter that occurred to me was the respondent left New Zealand at a young age with her parents and resided in other countries before coming to Australia. It may be that it would be desirable to have some evidence more specifically directed to the plaintiff's circumstances as a child and then in early adulthood but - - -

HIS HONOUR: Mr Williams, it is very difficult to give directions for a speedy disposition of the matter when it is uncertain whether there is going to be evidence that is agreed to by the parties or whether there is going to be contests about it, and particularly if there was the thought of drawing evidence from overseas.

MR WILLIAMS: That is not the character of the evidence that I - if there is any further material to be added, it is all very well to be confident about this, but I would not imagine any of that evidence would be controversial, your Honour. Indeed, we do not step back from what we put to the Court on Monday and that is that we accept that a speedy resolution of the matter is essential and we would accept that we would have to be bound by any date fixed shortly for the hearing of the matter.

HIS HONOUR: Yes. What about the second point?

MR WILLIAMS: There is no doubt, your Honour, that the joint judgment in Sykes v Cleary determines that the process of nomination is part of the process of being choses for the purposes of section 44(iv). But in that case the candidate, Mr Cleary, was an ineligible person at the date of nomination and at the date of the election and only became an eligible person, on the findings in that case, at the time of declaration of the poll. As we read the decision, various parties contended that the relevant point in time for purposes of section 44(iv) was the date of declaration of the poll. Other parties contended that the relevant time was the date of nomination. No one, as we read it, argues that the words "being chosen" in section 44(iv) of the Constitution are words directed to the time when the poll itself is conducted.

HIS HONOUR: Whatever the parties may have argued, what did the Court decide?

MR WILLIAMS: The Court did not have to made a determination of the middle position but none the less, as your Honour points out, there is no doubt that in the joint judgment their Honours clearly determined that the process of nomination was caught up in the process of being chosen.

Your Honour, leaving aside his Honour Justice Deane's dissent, it is not at all clear, we would submit, that the remaining judgments specifically deal with the point we would wish to argue, and that is that "being chosen" is directed towards the date of the election. For example, your Honour, if I could do it by way of example and face up to the point directly, at page 130 - your Honour will recall that the joint judgment was the judgment of the then Chief Justice and Justices Toohey and McHugh. Justice Dawson's decision, for example, at page 130, his Honour says that he agrees with the joint judgment:

for the reasons which they give, that the first respondent was, until he resigned his position as a teacher in the Victorian teaching service, the holder of an office of profit under the Crown -

et cetera. Now, your Honour, what we say is this that it simply is not clear - that statement - - -

HIS HONOUR: It is the next sentence that is critical, is it not?

I also agree with Mason C.J., Toohy and McHugh JJ., for the reasons which they give, that, as a result, the by-election should be declared absolutely void -

MR WILLIAMS: We read that as a reference to the debate in the case as to the consequences point, your Honour, because there was separate and distinct question as to assuming Mr Cleary to be ineligible, what would flow. And as we read the decision, that reference by his Honour was a reference to the second consideration that appears in the joint judgment, that is the question of what flows from a candidate being ineligible. What we say is this, your Honour, that it is not clear from the single judgments and it is open on the facts as to whether or not those judgments stand for the proposition that the process of nomination is part of the process of being chosen or whether, indeed, in any of those judgments, their Honours turn their minds precisely to the question which arises on the facts here.

HIS HONOUR: Mr Williams, I think I should indicate to you that as at present advised, if I were to determine this matter for myself and if I should be following Sykes v Cleary, I would construe the ratio of the joint judgment as turning upon what appears at page 100 dealing with the process of being chosen, and I would take my concurrence at page 108, the passages that you and I have referred to from the judgment of Justice Dawson, and the opening passage from the judgment of Justice Gaudron at page 132 as accepting that ratio. So, for the purposes of your submission, I think you should assume, unless you can convince me to the contrary, that that is the ratio of the decision and if you seek to have that proposition challenged, then it would be necessary for you to argue that the matter should be sent back to the Full Court for consideration.

MR WILLIAMS: I hear what your Honour says about your Honour's judgment and I will retreat to some extent on that matter, of course. Indeed, your Honour's judgment more specifically picks up the joint judgment than perhaps Justices Dawson or Gaudron do.

HIS HONOUR: I must say that I think a fair reading of their Honours' judgments are that you take the ratio and it leads you to the conclusion, and if that is so, then surely one looks at page 100.

MR WILLIAMS: Your Honour, the short point is, we would submit, it is not the ratio of the case because it was not necessary for the Court in Sykes v Cleary to go so far as their Honours did in the joint judgment. It was sufficient - Sykes v Cleary would have been determined and therefore there is nothing in the judgment that directs itself to the question.

HIS HONOUR: But the point is this, is it not, your argument is that "chosen" in section 44 could have been restricted to the poll, whereas the ratio adopted by the joint judgment was that "chosen" refers to the process of being chosen which includes the taking of the poll but also includes the nomination.

MR WILLIAMS: Commences at least with the nomination, yes.

HIS HONOUR: Now, unless there is some good reason for discounting that proposition as being the ratio of Sykes v Cleary, it seems to me that that is what Sykes v Cleary establishes, even if the Court could have said the process of being chosen includes at least the poll.

MR WILLIAMS: Leaving aside, your Honour, the submission I made earlier as to the doubt about the three single judgments, which immediately resolved two having heard what your Honour says, none the less we submit that the Court, on reading the judgment, did not consider and was not invited to consider the submissions that we would desire to make which are that the correct time to look at the concept of being chosen - - -

HIS HONOUR: The only time - - -

MR WILLIAMS: The only time to look, yes, is the time when the poll in fact takes place and on its facts that did not arise in Sykes v Cleary and whilst we have to accept that specifically in the joint judgment of three Judges of this Court the Court concluded that the process includes the process of nomination, none the less we would wish to argue it. Now, I cannot advance the matter any further, your Honour. I do not know whether we are here this morning in a sense to be likened to a special leave application - - -

HIS HONOUR: No, it is not a question of a special leave application; it is a question of the directions that should be given for the trial and included in the directions that must be considered is the question of whether any point in these proceedings should be referred to the Full Court - - -

MR WILLIAMS: Yes. I am conscious of what your Honour says. I am also conscious, your Honour, about my instructions which are that there ought be no unnecessary delay.

HIS HONOUR: It is a matter for you, Mr Williams.

MR WILLIAMS: Having said all that, your Honour, none the less on those two points we are unable to make the concession and we wish to make those arguments, that is on the nationality - - -

HIS HONOUR: The point is are you submitting that the appropriate direction is that the matter should go to trial with Sykes v Cleary intact and without further consideration by the Full Court on the facts that have been agreed and whatever conclusion might be come to by the Judge at trial, that is the appropriate conclusion, leaving it completely open to you to argue what you wish at trial?

MR WILLIAMS: Your Honour, we could go to trial on the first argument on that basis but not on the second. We would wish to argue that Sykes v Cleary is not correctly decided in relation to the question of - - -

HIS HONOUR: Are you asking me to refer any matter to the Full Court?

MR WILLIAMS: That matter, yes, your Honour.

HIS HONOUR: What are you asking me to do?

MR WILLIAMS: I am asking your Honour to refer to the Full Court the second point we raise on our written submissions, that is the question as to whether or not Sykes v Cleary is correct in pointing to the time of being chosen as being the time which includes the process of nomination, which raises directly the question, "Was the first respondent eligible to be elected?"

HIS HONOUR: Yes.

MR WILLIAMS: If that matter goes forward, your Honour, to a Full Court it would probably be inefficient in terms of time to have the second matter, which could clearly be decided by a single Justice, decided separately.

HIS HONOUR: The first thing I have to decide is whether I am going to refer anything to the Full Court.

MR WILLIAMS: Yes, of course. That leaves then the question of the petitioner's point as to the consequences and I think we have made our position clear on that on Monday, your Honour, that is we think the matter is governed by the decision in Sykes v Cleary.

HIS HONOUR: So you do not want Sykes v Cleary challenged on that point?

MR WILLIAMS: No.

HIS HONOUR: If it was going to the Full Court, then it would have to be challenged on both, would it not?

MR WILLIAMS: Yes. We imagine that would be right.

HIS HONOUR: And that is acceptable to you?

MR WILLIAMS: Yes, we would not resist that. Can I just point out, your Honour, before I finish, that we noted yesterday that in the decision of this Court in Re Webster, the then Chief Justice conducted the hearing on the basis that it was assumed that the date of the election was the correct date to look at but, having said that, it does not appear that it was the subject of any argument.

HIS HONOUR: Yes.

MR WILLIAMS: Those are the reasons for stepping back from the brink, your Honour. The facts are clear enough and we do not resile from the proposition that if Sykes v Cleary is correctly decided on that point then the consequences are that the first respondent is ineligible.

HIS HONOUR: Now, if Sykes v Cleary is an authority which is followed in terms as broadly as I have construed it, then the second point, that is the nationality point, does not necessarily arise for determination, does it?

MR WILLIAMS: It does not, no.

HIS HONOUR: So that if I were not to refer the matter of Sykes v Cleary to the Full Court, that is a reconsideration of Sykes v Cleary to the Full Court, there would be only one issue as between you and Mr McCarthy and that is the relief that should be given.

MR WILLIAMS: No, your Honour, because we would still wish to argue the nationality point.

HIS HONOUR: Why?

MR WILLIAMS: Oh, I follow what your Honour puts to me. Your Honour does not refer the second point of Sykes v Cleary - what your Honour says to me is correct with respect, yes. If your Honour does not refer that limb of the argument in Sykes v Cleary, then for that reason alone the first respondent is ineligible, the question of the nationality point does not arise for determination, as your Honour puts to me, and then the only live issue is the question as to consequences.

HIS HONOUR: Yes.

MR WILLIAMS: Yes, your Honour.

HIS HONOUR: Thank you. I think I will hear from Mr McCarthy next before I call on Dr Kenny.

MR McCARTHY: I have discussed these matters with Mr Williams, your Honour, and the petitioner's position in relation to the application that is made by Mr Williams concerning the second point, and indeed his application generally, is that the petitioner would support that application, that those issues be referred to the Full Court.

HIS HONOUR: Yes. And then you would seek to have the Full Court reconsider the question of relief in Sykes v Cleary?

MR McCARTHY: As Mr Williams said, I think that would probably be the most efficient way in which the matter should be resolved.

HIS HONOUR: I wonder if that is so, because if that were so, then assuming that Sykes v Cleary were distinguished by a Full Court as turning only on the date of the election, the date of the poll, that would still leave for consideration the question of nationality, would it not?

MR McCARTHY: It would, but there would be agreed facts before the Full Bench and it would not take any more time, your Honour, to have that matter as a part of the argument concerning all the issues in Sykes v Cleary. If the second point, to use - - -

HIS HONOUR: I hear what you say, but I must say I have my doubts. Here we have a set of facts which were common ground a few days ago, which have now been reduced to writing, but which are already subject to a suggestion of supplementation.

MR McCARTHY: That was something that Mr Williams said on his feet and I cannot say whether that would have the effect that your Honour says, that there may be things that are disagreed over that, but I was understanding Mr Williams to be basically saying that the facts that have been agreed would be the basis of a decision about both nationality and the timing point about resignation. I do not hear him as saying that there are other pertinent facts concerning the plaintiff that would be put forward.

If it was otherwise, your Honour, I think there would be more cause for concern by this Court as to what it was being committed to in referring the matter to the Full Court but on an understanding that it is overwhelmingly on the basis of the material that is in the two statements of facts, I do not see, while it certainly could have some difficulty, I do not see it as taking any more time there than it would for a single Judge to determine the matter.

HIS HONOUR: Now, Mr McCarthy, I take it, from your point of view, you would adhere to what was said by the joint judgment in Sykes v Cleary at page 100 as to the criterion of ineligibility arising from 44(iv)?

MR McCARTHY: Yes, and certainly in relation to the time, as I have I think made that clear in my written submission, that that is so.

HIS HONOUR: So you would not seek, for your part, to have that issue reconsidered by the Full Court?

MR McCARTHY: I would not seek to have it reconsidered, but we are not opposed to having the issue put before the Full Court.

HIS HONOUR: That is, I take it, because you want to get your second point reconsidered in Sykes v Cleary.

MR McCARTHY: Your Honour, there were matters that have been raised by the first respondent that can validly be pointed to as being reasons why that issue might wish to be looked at. I would only say this, that in relation to the issue about a re-count and a special count, the argument is even stronger in relation to what the principles involved ought to be for the exercise of discretion by this Court, absent a statutory mandate, for this Court to look at that issue again, and it would be in that sense that I would say that I could see how those issues would go forward.

HIS HONOUR: It seems to me that a lot is turning on the question of whether anything should go to the Full Court so you had better give me your best reasons why that issue should be reconsidered by the Full Court. I take it you would be asking the Full Court, if the matter were to go there, to reconsider what was said in Sykes v Cleary.

MR McCARTHY: Yes, I would be.

HIS HONOUR: Now why should that be done?

MR McCARTHY: Your Honour, yesterday I had occasion to have sent to the Court a set of written submissions in relation to the matter - - -

HIS HONOUR: Yes, I have read those.

MR McCARTHY: And do I take it that you ask that in the context of saying to me that - is there anything that I wish to add to what is said there or should I take your Honour to those submissions forthwith?

HIS HONOUR: You rely heavily on Chanter v Blackwood.

MR McCARTHY: I rely heavily on Woodward v Sarsons, as to the principles of election law, your Honour.

HIS HONOUR: Yes. I understand that.

MR McCARTHY: Blackwood v Chanter is the seminal statement in this Court. There is a common law of elections that applies to all elections to which a tribunal such as the Court of Disputed Returns would deal with when considering a case such as this.

HIS HONOUR: Now, what is it in the citation from Woodward v Sarsons which, in your submission, throws any doubt at all on the propositions in Sykes v Cleary?

MR McCARTHY: If I could put this around in two ways, your Honour: firstly, when we are dealing with election law, there are three sources of authority. The first is the Constitution, the second is the Commonwealth Electoral Act 1918 or associated statutes and the third is the common law of elections. An example of a statutory rule is that that says that on the death of a candidate an election is deemed to have totally failed or "wholly", to use the word of the statute, failed. An election that wholly failed is one for which a new writ must be issued. Section 181 of the statute does that in respect of the death of a candidate. In respect of a constitutional disqualification of a candidate, there is no such statutory rule as to what the consequences might be, and the second matter that is there is that there is no constitutional direction to this Court or to any authority in Australia as to what the effect would be if this occurs in relation to an election for the House of Representatives or for the Senate.

So we turn then to the framework of a Court of Disputed Returns when issues are raised, for instance, that a candidate has been disqualified. What we find there in relation to this Court of Disputed Returns is that section 360 of the Act sets out the powers of the Court, which are well known to your Honour, but the ultimate direction in which those powers are to be operated is to be found at 364 which states that:

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

That is that this is a matter in which the Court is to reach a conclusion on an application of principles, facts and law to the issues before it. That is a direction as to the arrival at a decision, it is not the pre-empting of any particular decision such as would be the case on the death of a candidate.

The framework for that, in our respectful submission, then becomes the common law of elections, and that would be the framework in which this Court looks at what are the substantial merits and good conscience in each particular case. The central, and the first principle, of election law - of the common law of elections is that a tribunal must be satisfied that there had been no real electing by the constituency, if at all, that is that no one could be taken in the whole of the process of the election to have been regarded as elected or that the election was one - that it was not conducted under the subsisting or operative election laws at that time.

Because the candidate has been disqualified on a constitutional basis, that is one of the candidates, does not under our system of election necessarily imply that there has been no electing at all. Under our preferential voting system, to come to your Honour's central point which is what is your main point, it is this: under our preferential voting system an elector goes to the poll on the basis of being asked what his preferences are amongst a series of candidates. He is required by law to attend at the poll, he is required by law to mark his preferences. What preferential voting is about is saying: if your first choice is incapable of being chosen - and the usual basis, your Honour, on which a candidate is incapable of being chosen is that he does not have sufficient support, but there can be other reasons such as disqualification, but if your candidate cannot be chosen - who else in the rest of that field would you put forward as being your preference, and please express it on a ballot paper using numbers. That is what preferential voting is all about.

This issue comes down to this: if a candidate is incapable of being chosen under section 44, he is incapable of being chosen at the date of nomination. The real analogy is not with the death of a candidate between the date of nomination and the declaration of the poll, because a candidate who dies is a candidate who was qualified, is a candidate who could have stood for election and being capable of being elected. The real choice in those circumstances, as the community has expressed it through Parliament in the Electoral Act, is that there should be a new poll.

But a disqualified candidate under Sykes v Cleary is in the same position, your Honour, not of the death of a candidate who was properly nominated, but of someone who failed to nominate on election day, because your nomination if you are constitutionally incapable is a nullity. It is the equivalent of being left at the post. It is the equivalent of what happened in Indi in 1928 when the National Party failed - of the Country Party as it then was - failed to nominate at the relevant time or what happened in Gordon in 1973 in the New South Wales, elections which your Honour may recall, when the Honourable Harry Jago failed to nominate for the seat.

HIS HONOUR: I am afraid I do not remember but - - -

MR McCARTHY: But to go on, your Honour, the point here is this, that if the candidate - and the election goes on. The election goes on if a candidate fails to nominate. Now, what are the consequences? The electors choose amongst those that they are capable of expressing a preference for, those who are capable of being elected. So when we have a situation where a disqualified candidate has obtruded into the poll, the real position is to take it as being the equivalent of the candidate not being nominated - - -

HIS HONOUR: Has there been any case when a nomination has been late or otherwise inadmissible but the name of the candidate purportedly nominated has been included in the ballot paper?

MR McCARTHY: Not to my knowledge.

HIS HONOUR: If that were to happen, what would be the situation?

MR McCARTHY: And assume the candidate went on and was elected?

HIS HONOUR: Yes.

MR McCARTHY: So that it affected the result of the election, this Court would declare that election to be void.

HIS HONOUR: Why?

MR McCARTHY: Because the nomination was not received by the hour of nomination and it did not meet the statutory requirements for nomination for that election.

HIS HONOUR: How do you distinguish that position from the present?

MR McCARTHY: I do not distinguish it at all. I say that that is the real analogy for this position. I say that it is not the death of a candidate. The death of a candidate only becomes operative, your Honour, if a candidate was properly nominated at the hour of nomination.

HIS HONOUR: But if the hypothesis that I put to you results in a declaration that the election was void, then should it not be the same declaration that is made in the present case?

MR McCARTHY: In the first case - I am sorry, your Honour, there are two principles involved here. What I am assenting to is that the election of that candidate was void. I am not assenting to a proposition that the whole of the election failed.

HIS HONOUR: Why not?

MR McCARTHY: Because it would then be turned over to say - are we to assume a preferential count?

HIS HONOUR: Oh yes, yes. See, what I am putting to you is that the electors are being misled by the appearance on the ballot paper of a person who cannot be elected.

MR McCARTHY: Yes.

HIS HONOUR: Why does not that avoid the election?

MR McCARTHY: Because it may be that we can turn around and find a basis on which, in the system that is used, if that candidate is not there there is an expression of preferences as to what the majority would wish in circumstances of having qualified candidates before them; that that is what we do with our system, with preferential voting. We ask the electors to choose their order of preference of those that can be elected.

HIS HONOUR: What are the cases, other than Sykes v Cleary, in which a section 44 invalidity has affected the outcome?

MR McCARTHY: In re Wood.

HIS HONOUR: Any others?

MR McCARTHY: No, not to my recollection just at the moment.

HIS HONOUR: So we have In re Wood in the Senate situation and Sykes v Cleary in a Reps situation?

MR McCARTHY: Yes.

HIS HONOUR: Now, let me indicate to you and also to Mr Williams a factor that is concerning me in relation to the directions that should be given in this case. It seems to me that the legislation which constitutes this Court to be the Court of Disputed Returns and which provides for no appeal from a decision of the Court of Disputed Returns even if constituted by a single Justice, is indicative of a legislative intention that the old parliamentary jurisdiction which has been thus passed to this Court should be exercised as quickly and as certainly as possible, subject to section 364 which requires essentially an exercise of common sense in the event that common sense should be in any way antipathetic to some ancient and perhaps arcane legal principle.

Now, that being so, and there being on the books a majority decision of a substantial majority of this Court interpreting the Electoral Act, it seems to me that to refer the same questions that were then determined back to the Full Court is only to cast doubt upon the propositions then advanced and to introduce delay and uncertainty into a jurisdiction that ought to be exercised quickly and according to common sense and in accordance with any authority that has thus far been established. Now, that is my concern and that is why I invite you to say why the matter should be delayed by going back to the Full Court.

MR McCARTHY: I do not think either of the parties have any view in mind, your Honour, of any long delay.

HIS HONOUR: No, I appreciate that, but one must accept that if the matter does go back to the Full Court, there must be a determination by a single Judge of some questions of fact, I would have thought, in relation to the nationality point and there would then be a determination in relation to these two points that are raised by you and by Mr Williams which the Full Court has already decided and you are going to ask them to consider it again. Now, that seems to me to inject uncertainty and delay into a procedure that ought not to be subject to those qualifications.

MR McCARTHY: Your Honour, as a general proposition I think it would be that everyone at the Bar table would embrace. I do not, as I say again, see any large or lengthy period of time as being involved in referring the questions to the Full Court. The second is this, and I would have thought this was equally a matter of concern. The statute is clear that it is only when an election wholly fails that a new writ is to be issued. I understand that the cost of a new election is in excess of $200,000 or so on. It is a fearful thing to order a further election. The Court would want to be satisfied in any particular case that an election has wholly failed, particularly in a context, your Honour, where there is no statutory provision for the results if a certain event comes about such as the constitutional disqualification of a candidate. That means that the Court has got to give consideration to this appropriately in any given case.

I do not read the Commonwealth Electoral Act or the way that Parliament keeps the matter in mind, your Honour, as being in a situation over constitutional disqualification that would require an automatic rule, and one of the fears, if I could put it forward, your Honour, as a submission, that if this is turned away from in this case, is that it will never be the situation again, in my respectful submission, that someone with a constitutional disqualification will bring about a result that is other than a new election being ordered, that that will always be the case. It has been done twice and it has been done on an analogy. There is no strict statutory direction to this Court that this must be done in every case.

Now, the facts in every case are different. In Sykes v Cleary, your Honour, this Court faced a situation when 90 per cent of the votes that were cast were for candidates who were disqualified. In this case, it is 42 per cent. Fifty-seven per cent of the electors in Lindsay cast votes for candidates who were qualified to be chosen to be elected. A majority of the electors properly carried out their task. The successful candidate in this case, your Honour, did not have a majority of the votes on the first preferences. It was only on second and third preferences that this comes through. A majority in Lindsay voted for candidates who were capable of being elected. To say to them now, "No, you have got to do it again" because one of the candidates who did not even get a majority of the votes was disqualified, is to say to them that even though we asked you to mark every one of your preferences, we are not going to give any consideration to what is there, even though we have said that is your legal intent on that day.

Now, your Honour, those are factors, it seems to me, that would lead the Court to say that there is serious issues about whether an election has wholly failed in a preferential thing.

HIS HONOUR: Mr McCarthy, I understand what you are saying about that and it seems to me that that really raises another problem and it is this: if there is to be no general rule, and it must look at the circumstances of each case, I would have thought your argument would have been, "This case is different from Cleary's Case" because of the factors you have just referred to, and therefore, whilst the Full Court may have said in Cleary's Case, this is the appropriate order, in this case it is not.

MR McCARTHY: I want to be in a position, your Honour, to be able to say that.

HIS HONOUR: I understand that. And that is a section 364 argument. Now, in other words, if the question were to go back to the Full Court in relation to the relief that was given in Sykes v Cleary, the answer to it may be, "There is no question of binding principle here; it is a question under section 364 of what does good conscience lead to".

MR McCARTHY: That is my submission, your Honour.

HIS HONOUR: If that is your submission, it does not need to go back to the Full Court.

MR McCARTHY: Your Honour, except that I am faced with the fact that there are remarks that are certainly contained within the written submissions here, and indeed of principles that have been settled, as your Honour has referred to, concerning this second issue by Sykes v Cleary that leads me to believe that there is at least an approach that says, "Authority has decided this almost to a statutory level" and there is no argument about what has to be done and those issues that I raise in my submission need not even be looked at. It is to bring about the discretionary point that I submit the matter has got to go back to the Full Court to make that clarification, your Honour, because the way that the authorities are - the expressions - fortunate or unfortunate in Sykes v Cleary, depending on the point of view that you take - and indeed, if I might say so with respect, even reflected in some of the remarks that you have made to me today - suggests that this has been determined. This has been settled. What we are attempting to raise is that there is no statutory rule, it is a matter of good conscience, and in a particular case, the proper and just result in a particular case, but that to be in a position to be able to put all of that would seem to be something that needs a reconsideration by the Full Court. And it is for those reasons that we have been putting it forward.

And secondly, your Honour, that if the Full Court is apprised of those matters, it can then make its decision as an example of what ought to be done when considering the whole of the election in that way. And it is for those reasons, your Honour, so that the matter is opened up again, so that neither this Court nor any of those that are involved in elections in Australia believe that there is an automatic rule, that we have put forward the submissions in the way that we have. After all, your Honour, it has been the case that this Court has found that the true legal intent in a preferential voting system is found on the ballot papers, that you do disregard a disqualified candidate's ballot, a vote for them, as being a nullity. The rest of the preferences on the ballot paper is regarded as still legally operative. It is still there.

Now, that was said in In re Wood in the context of preferential voting for the Senate. But it was said about Part XVIII of the Commonwealth Electoral Act. That is the same section and the same system of voting that is used for the House of Representatives. There is really no difference there. In that context with the Senate, it is said, with those details on the ballot paper, it may well be, in a context where those votes are preserved, there is no need to call another election. It gives a truer expression of what was the intent of the electorate by counting the votes again. And when you add to that, your Honour, a situation where we are not talking about a majority of the electorate in any event, we are talking about a much smaller percentage than was the case that faced the Court in Cleary's Case, then that would reinforce that particular point.

So, your Honour, I would still see, in the way that the argument is presented and the way that the matters have gone forward, that this is still something that ought, for the very rare instances that are in electoral law, to have the matter reconsidered on that point by a Full Court.

HIS HONOUR: Yes. Thank you, Mr McCarthy. Dr Kenny.

MS KENNY: I understand, your Honour, that my friend Mr Williams has something he wishes to tell the Court before I reply.

MR WILLIAMS: Your Honour, having taken note of what has fallen from your Honour, in particular touching those matters that we seek to agitate in Sykes v Cleary and the ratio of the joint judgment, we would only press to have those matters determined by a Full Court if a Full Court was being convened to hear Mr McCarthy's point.

HIS HONOUR: Yes.

MR WILLIAMS: Otherwise we take the view that it would be open to your Honour to declare the election void, which would open the way for a by-election.

HIS HONOUR: It may be open, but on Mr McCarthy's argument it is by no means necessary that it should be ordered.

MR WILLIAMS: That is so, yes. We are in total opposition to that.

HIS HONOUR: I understand that. Dr Kenny.

MS KENNY: Your Honour, I would oppose the reconsideration of Sykes v Cleary. I would oppose it upon three grounds: the first is it is in the interests of elections generally, and electoral law in particular, that there be some consistency in decision making. The second is that in this case, as in other election cases, there is a need for speed. And finally, there is the fact that there is a need for certainty in this area as well. Having said that, your Honour has already dealt with the questions of reconsideration and when it is appropriate on a number of occasions. I would refer your Honour to what your Honour said in the Trident General Insurance Company Case [1988] HCA 44; 165 CLR 107, and in particular at pages 130 to 131.

HIS HONOUR: That is a dissenting judgdment.

MS KENNY: It is, your Honour, but on the matter of reconsideration your Honour set out the considerations which I would say apply, your Honour referred to those same considerations in Baker v Campbell, and then more recently three members of the Court in [1990] HCA 9; 169 CLR 245, in particular at page 269 said much the same thing. Their Honours were Justices Dawson, Toohey and McHugh.

HIS HONOUR: What case was that?

MS KENNY: It has the unpronounceable name, I am afraid to say, your Honour. I was trying to judiciously avoid it and I have not. It is spelt Nguyen and that may help the transcriber as well as myself.

HIS HONOUR: [1990] HCA 9; 169 CLR 245 at 269?

MS KENNY: That is correct, your Honour. The matters your Honour alluded to in the Trident Case really governed reconsideration in the context of an appellate court but your Honour pointed out in that case that leave to reopen would be given from time to time, not only to correct an error which has become manifest in an earlier decision but also to permit a review of doctrines which were the product of, and suited to, an earlier age but which work injustice or inconvenience in contemporary conditions. Your Honour, in my submission, neither of those conditions appertains here. It has not been shown, in my submission, that there is any manifest error in the Sykes v Cleary decision and nor is it the product of an earlier age which is working injustice.

Your Honour said subsequently in Baker v Campbell [1983] HCA 39; 153 CLR 52, and in particular at page 103, that there was a heavy burden on those who would seek reconsideration of one of the Court's decisions. That same expression was picked up by their Honours Justices Dawson, Toohey and McHugh in the joint judgment in the case of the unpronounceable name, where their Honours said, at page 269:

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law:

Their Honour then refer to the decision of Justice Aickin in Queensland v The Commonwealth [1977] HCA 60; 139 CLR 585, in particular at page 620 and following. Your Honour, whilst your Honour is now sitting as the Court of Disputed Returns, in my submission the very same considerations would apply in this Court as your Honour has referred to in the Trident General Insurance Case, Baker v Campbell and their Honours referred to subsequently, that is to depart from precedent or a decision which is clear in its impact should only be done cautiously and only when the circumstances warrant it and nothing has been said to your Honour today, in my respectful submission, which would justify any of those circumstances being made out.

Your Honour, I have a number of matters briefly that I put to Mr McCarthy's submissions earlier to you. Mr McCarthy spoke about the fair opportunity of electing a candidate and he referred to the Woodward v Sarsons principle. The difficulty which arises here, however, is that the electors have not, on the analysis adopted in Sykes v Cleary, had such an opportunity because when they voted, they voted under a misapprehension, namely they voted under the apprehension that the first candidate was a candidate qualified to be chosen. Had they known that was not so or had she not entered the field of candidates generally, then voters may well have stated their preferences differently and other candidates may have stood.

HIS HONOUR: What would be the situation if the candidate who had received the least votes was disqualified under section 44(i), say?

MS KENNY: In that situation it might still follow that the election would be void because the voters would not have known who in fact stood in the field and, in addition, those who stood or chose not to stand would not have known what the field was at that time.

HIS HONOUR: If that is so, it offers an opportunity for electoral mischief, does it not?

MS KENNY: It would be an unfortunate result but it offers no greater chance for electoral mischief than this particular occasion, in other words, one must approach the question on the basis that candidates make a declaration, that is that they are qualified to stand, and when they make that declaration they do so truly. If they do not, if they do so dishonestly, then of course there would be an electoral offence committed. It would therefore be unlikely that a real chance of mischief would arise.

If the contrary were the case, if one were to say, "Well, it is only where a candidate is found to be unqualified to be chosen and to sit that the election is brought to an end", that, perhaps, is the stronger case because voters have presumably looked at those candidates who stand, have taken an estimate of the likelihood of their candidates succeeding or not succeeding and have cast their preferences accordingly. In that event, it would be clear that a voter who placed "1" against the first respondent would have taken into account her chances and the chances of others and exercised their preferences accordingly. It would work a mischief on the electorate to say that they were to be compelled to have a second candidate with an entirely different policy on the basis that that candidate had the second number of votes although, at the time they voted, they had no expectation that Ms Kelly would not be one of the candidates who stood and would not have a reasonably likelihood of gaining success in the election.

So the real question is, in this particular instance, where one has a candidate who does gain election, who stands in such a position, what is the position of the electorate once it appears to them that that candidate was not qualified? If they knew at the time they voted that the candidate was not qualified, then they would not be voting under a misapprehension but if they discover subsequently, after the poll, that that candidate was not eligible to be chosen then, clearly, they have voted upon a mistaken view of the facts and, in that instance, it would be incorrect to say they have been given a fair and free opportunity to exercise their vote in the real sense because they had not before them the facts which were relevant to the exercise of that fair and free vote.

That would appear to be the position at common law. In a case called In re Parliamentary Election for Bristol South East (1964) 2 QB 257 and, in particular, at pages 291 and 297, the proposition would seem to be that if the voters knew of a disabling circumstance at the time they voted, their vote was thrown away, but if they did not know of that disabling circumstance at the time they voted, then the election would be void.

Your Honour, I have a copy of that decision I pass up to your Honour. I will, at the same time, your Honour, pass up a copy of the other decisions to which I referred a moment ago. Your Honour will see on the second page, page 259, in the paragraph marked (4) the ratio of that case is set out. The relevant fact there was that the disqualification was made known to the electorate before their votes were cast. What had happened was a person had succeeded to a peerage and, in consequence, was not eligible to stand as a candidate for the House of Commons. That fact was known to the electorate at the time of the election.

Your Honour, at page 296 there is a general discussion of the position in a quotation from an earlier case and midway down page 296, the following passage appears:

Where the majority of electors vote for a disqualified person in ignorance of the fact of disqualification, the election may be void or voidable, or, in the latter case, may be capable of being made good, according to the nature of the disqualification.

And then falling down to the bottom of the page - towards the bottom:

But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given: no one can doubt that, if an elector would nominate and vote only for a woman.....his vote would be thrown away.

So that when one looks to the situation in England at common law, one is looking in many cases to cases concerning women who stood for Parliament or, in this case, someone who stood but was ineligible by virtue of becoming a peer.

So that if one does, in fact, ask oneself what is the position at common law, true it is, one must look to Woodward v Sarsons but Woodward v Sarsons puts forward a test of fair and free election and then one must ask oneself what, in the circumstances, would constitute such a fair and free election and the common law would answer, in a circumstance where the electorate did not know of the relevant disqualification at the time of exercising their vote, then that would not constitute such an exercise of voting.

To return to your Honour's question a moment ago, "What would be the consequence if a candidate stood for election, receives the least number of votes and was subsequently found to be ineligible or incompetent to stand or be chosen?", a simpler way of approaching it would be to say that as the result was unlikely to affect the election, then there is no need to declare the election void. It would work no mischief on the electorate because the disqualification was unlikely to affect the result and the electors' exercise of voting was therefore not impeded in any relevant sense. That, in my submission, is a better answer to your Honour's question than the answer I gave earlier.

My learned friend, Mr McCarthy, makes the point that no elector can assume that his first choice will not be eliminated. That, in my submission, is to miss the point. The relevant fact here is not that the voting for Senate and the House is the same, that is it is preferential voting, but that the system of election is different. In the case in the Senate, a proportional representation based on a quota system is employed; in the case of the House, it is an absolute majority for a single-member electorate. That, In my submission, is the relevant difference between the two forms of election and the vitiating fact comes about when the candidate who is returned stands in a single-member electorate and wins an absolute majority for return. In my submission, the petitioner's argument concerning preferential voting and the casting of a preference vote disregards the relevant difference in electorate systems.

There is no analogy, in my submission, between disqualification and the failure of a candidate to nominate. If a candidate fails to nominate the electorate do not cast a vote under a relevant misapprehension. They know the candidate is not amongst the field. The misapprehension and the mischief to the electorate occurs because a person joins the field and is understood to be a candidate eligible to be chosen for Parliament. The very same sorts of considerations may apply when a candidate dies after nomination but before declaration of the poll.

The only other two matters that are raised by my learned friend, Mr McCarthy, are, first, a suggestion in his submissions that the decision in Sykes v Cleary was affected by the fact that three candidates had been declared disqualified rather than the one whose candidature is in question in this case. In my submission, it is clear from their Honours' reasons for judgment that they put to one side the disqualification of the remaining two candidates and were asked to answer a question, "If Mr Cleary was disqualified, was the election void?", that being the form of the question, in substance, and they answered that question by saying, "Yes, the election was void." And then they went on to answer the question, "Well, would the other two candidates have qualified in any event?". So that the position of the other two candidates is tangential to the decisions reached in the joint judgment in Sykes v Cleary and, in my respectful submission, it is clear from your Honour's judgment and the judgment of the other members of the majority in the Court, that they were adopting the reasons given in the joint judgment. Your Honour makes that clear, as do Justices Dawson and Gaudron, by adopting the reasons for judgment in the joint judgment and then going on to discuss the position of the other candidates as a separate point.

The only other matter which arises is the matter of which role should apply if the election be declared void. It is a matter raised by my learned friend, Mr McCarthy. In my submission, it is answered by the Act itself: once the writ issues for the election, the writ itself must state a date for the close of the rolls; when the writ states the date of the close of the rolls it therefore governs which roll is to govern the election and that, in my submission, is a short answer to that supposed problem.

Your Honour, unless your Honour has any particular questions, those are the matters I would like to address.

HIS HONOUR: No. Mr McCarthy, have you anything in reply?

MR McCARTHY: Your Honour, the mischief we are seeking to avoid has been totally highlighted by the submissions that have been put forward by my learned friend, Dr Kenny. Not in the sense that she is a mischief but in the sense that it really highlights what is here. What she is putting to this Court is this: if a candidate is disqualified under section 44, the election fails and that is a principle of law. There is no discretion; there is no nothing. Section 364 does not run. In a Court of Disputed Returns in this country, what she says the position is - and, indeed, is supported by my friend, Mr Williams - is that it does not matter who is on the bench or what the facts of the situation are, as soon as you establish a candidate has been disqualified, the election fails.

HIS HONOUR: She puts it a different way. She says if it is established that the candidate who succeeded was, without the knowledge of the electorate, disqualified, then the election fails.

MR McCARTHY: Your Honour, it can be put in a number of ways, but whatever the situation is, whenever the matter comes before the court, it is a matter not any more of discretion but of law, of what she describes as "precedent". What has been established, she says, in Sykes v Cleary is that it does not matter how many candidates were involved or what the result of the election was or what the distribution of preferences were or, indeed, since she relies on English decisions, what sort of voting system is being used, in any of those situations, it is no longer relevant. The principle is not section 364 of what may be just in the circumstances of the matter but an absolute principle, that is - - -

HIS HONOUR: That is not put up for the purposes of this decision......straw.

MR McCARTHY: I do not think it is a straw.

HIS HONOUR: Mr McCarthy, the question that I have to consider is whether there is anything that has been said here which should lead me to the view that if the matter were sent to the Full Court for reconsideration of Sykes v Cleary there is something which the Full Court on that occasion failed to appreciate which might lead the Full Court to a different conclusion on the facts of that case. In other words, if the facts of this case are distinguishable, then there is no need for it to go back. If, however, it establishes a principle and the principle is open to argument and the argument is likely to succeed or has a fair chance of success, then I would send it back. Now, the question that has to be determined are questions of principle and that is where the problem lies.

MR McCARTHY: The distinguishable situation, if I could raise the one, your Honour, is this: what if it is the case that the disqualified candidate did not have a majority of the first preference votes, that a majority of the electorate expressed their preference for qualified candidates. Is it the case that because a disqualified candidate was successful in a preferential count that that election should be one that is automatically found to have failed? That is the fact situation that emerges here. That is the fact situation that is different from Sykes v Cleary.

HIS HONOUR: The fact situation is, should it be held to have failed? Not automatically. Should it be held in the light of section 364 to have failed?

MR McCARTHY: To have failed, yes.

HIS HONOUR: That does not seem to me to raise a question which impugns the validity of the decision in Sykes v Cleary.

MR McCARTHY: Your Honour, Sykes v Cleary - - -

HIS HONOUR: I am putting these propositions to you now because obviously if I do not send it back to the Full Court, I will regard myself as being bound, or at least guided, by the decision of the Full Court in Sykes v Cleary whatever, on the occasion of the trial, I may be persuaded is the true ratio of that decision.

MR McCARTHY: Your Honour, I can only add this - and I do not want to irritate you by repeating myself on the points.

HIS HONOUR: You are not irritating me, Mr McCarthy, do not worry about that.

MR McCARTHY: Your Honour, what is put in Sykes v Cleary on this particular point would apply, in my respectful submission and, indeed, the submissions of Dr Kenny and Mr Williams bear this out, a proposition that the death of a successful candidate, regardless of what the first preference count might have been, in a House of Representatives election, leads to a situation where that elections fails - the candidate is void and that election fails - and the reasoning that is put forward in Sykes v Cleary can only have that meaning. I mean, ultimately Sykes v Cleary is saying - if I can just get the passage - - -

HIS HONOUR: If you just give me the page reference, Mr McCarthy.

MR McCARTHY: I think it is on page 100. It is for more abundant caution that I just turn the page up.

HIS HONOUR: I think page 100 was probably the problem that Mr Williams faces. It may be 102, I think.

MR McCARTHY: I beg your pardon, it is page 102. Your Honour, ultimately, the reason that was given in Sykes v Cleary as to why the election wholly fails was that it says, statutorily, under section 180(2), for the death of a candidate, the election wholly fails. The contrast is then made with the Senate with section 273(27) where the votes can be counted on and adjusted accordingly. It says:

The reasons which lie behind the drawing of that distinction have equal application to the drawing of a like distinction between the election to the House of Representatives and to the Senate of candidates who are disqualified under s. 44.

Your Honour, it would seem to me that in the way that the reasons are put forward in Sykes v Cleary as is clearly and rationally put forward by anyone reasonably considering the situation is that if there is a successful disqualified candidate for the House of Representatives, the position is the same as for the death of a candidate: there must be a finding that the whole of the election has failed.

Your Honour, I say that that is an appropriate reading - that one would be faced with the difficulty, because I would be putting section 364 to you as being the proper mandate to the Court of Disputed Returns whether it sits individually as here or with the Full Bench as being the appropriate course. That we have a major decision in electoral law which is a very limited field in terms of decisions where that seems to be the overall intent as to the approach that a court of appeal, in exercising a discretion under 364, ought to adopt, regardless of what the underlying fact situation would be.

Your Honour, to get that matter cleared up, it would seem to me - assuming that your Honour accepted some of the arguments that I put forward, for instance, if your Honour was minded to keep the matter at a single Judge level, could be a matter of some dissatisfaction in relation to other parties including the AEC, that it could be seen that Sykes v Cleary was not given the sort of weight that might otherwise have been suggested that it be given. That would seem to me to be a fair reason why this ought to go forward.

Secondly, your Honour, there is a problem in relation to section 102, in my respectful submission, where there are references made there to whether other people would have stood; whether the voters' real intentions could be gleaned from the framework of the candidates that it stood in the election. Your Honour, I remember when reading at the time that that decision came down and subsequently, when analysing it to prepare these submissions, of thinking those remarks were at least superficially at variance with what the High Court in only some years before had said in In Re Wood in regard to preferential voting.

Now, your Honour, at pages 6 and 7 of my written submissions are summarised the position in relation to what the High Court had said in In re Wood in relation to preferential voting or what could be taken to be preferential voting. Now, my learned friend, Dr Kenny, seeks to distinguish In Re Wood on the basis that what was said there was said in relation to a proportional system of voting rather than a single member constituency. In ultimate effect, in terms of the way that the votes are counted, there may be something in that. But the sections that I was referring to and which are, I believe, pertinent here, your Honour, that should be borne in mind referred to the preferential section of the Senate count, that is, the way that the ballot paper was drawn and what could be drawn from the type of voting that was set out there.

These were some of the matters that it seems to me do not sit easily with what was said in Cleary about voters' intentions. This is paraphrasing, your Honour, some of the proposition that were put forward there:

The purpose of the poll is to choose in accordance with the Act the preferred candidates who are qualified to be chosen -

I am paraphrasing page 165 and 166, your Honour, of In Re Wood. Your Honour will find it at pages 6 and 7 of the submission -

but no effect can be given for the purpose of the poll to the placing of a figure against the name of a candidate who is not qualified to be chosen: an indication of a voter's preference for an unqualified candidate is a nullity.

Such ballot papers, however, are not informal.

An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid.

I repeat that:

That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that -

the Constitution and the Act -

invalidates the particular indication of preference that effect is denied to the voter's expressed intention.

Then I go on, your Honour: by marking a ballot paper with numbers in order of preference amongst the candidates, an elector indicates his preference for other candidates if the candidate for whom he expressed a first preference is eliminated from the scrutiny when no other candidate has an absolute majority of votes. Now, that is just to round that off.

Your Honour, those propositions in relation to preferential voting for the Senate which are a commentary on Part XVIII of the Commonwealth Electoral Act really cannot be distinguished for a House of Representatives' ballot paper. It is the same principles that are applied.

We have here then some commentary and a background that leads to an approach in Sykes v Cleary that seems to ignore those particular findings about the nature of a ballot paper in a preferential system and the remarks that are there. It is through those statements, through those findings about the ballot paper that the Court is led on to saying that the death of a candidate has the effect that - is the proper analogy. We say, your Honour, that there does not seem to have been, in Sykes v Cleary, that sort of analysis as to a House of Representative ballot paper - - -

HIS HONOUR: Do you say that in Sykes v Cleary the appropriate order ought to have been that there be a special count excluding the votes cast or preferences given to those candidates who were disqualified?

MR McCARTHY: No, I do not say that.

HIS HONOUR: Why not?

MR McCARTHY: It may well be under section 364 a court could have taken a view that so many votes were cast for disqualified candidates that it would not be appropriate to allow a count to go on in that particular way; that in the circumstances of the case the actual application of a principle may well be different.

HIS HONOUR: That, I understand, and that is the reason why, it seems to me, that you are perhaps pushing at an open door in seeking to have Sykes v Cleary reagitated before the Full Court. I mean, Sykes v Cleary cannot override section 364 and if Sykes v Cleary is to be explained by reference to the circumstances of that ballot then, it seems to me, there is a real problem that faces any question of reference to the Full Court.

If, for example, in Sykes v Cleary, Mr Sykes had been eligible but Mr Delacretaz had not, then one can see that there would be much force in the proposition advanced by Dr Kenny that the election would not miscarry. The problem is not about the counting of the votes, in other words, in accordance with In re Wood but with the effect of putting forward to an electorate that does not know a candidate who is disqualified when the majority of votes, after allocation of preferences, are attributed to that candidate. I mean, that is the problem, is it not, in this case?

MR McCARTHY: Yes, it is.

HIS HONOUR: And your argument, as I appreciate it, would really be, "Well now, this case is to be distinguished from Sykes v Cleary". It is to be distinguished, as I understand it, because in Sykes v Cleary the majority of votes were cast for candidates who were disqualified. Here, the majority of votes were cast for candidates who were qualified. That is the primary votes.

MR McCARTHY: Your Honour, it is tantalising to say that one would like to agree, with that interpretation, I mean.

HIS HONOUR: I am not inviting you to agree. I can see that you are concerned to ensure that Sykes v Cleary does not stand in the way of any submissions that you wish to make. What I am putting to you is simply that even if Sykes v Cleary does not go back for reconsideration, the argument that you wish to put is still open to you. I am not taking it any further than that at the moment, Mr McCarthy.

MR McCARTHY: Your Honour, I appreciate that. I just say this: that is the ultimate position that I would be seeking to put. I would submit, however, that the language in Sykes v Cleary has reduced the level of discretion in this fact situation, in what is a very powerful judgment, your Honour, to a very, very narrow field and that the weight that could be given by a single Judge to the type of submission that I would wish to make may not be without some further reconsideration of the position of the death of a candidate being the most obvious analogy, that the sort of weight that one would want to put on it may be limited; may be limited by the Court, and certainly in the way that it has been approached.

Dr Kenny has said here this morning, your Honour, that this is consistency and precedent that is involved. The consistency and the precedent that was involved is that you follow the death analogy in a situation where the disqualified candidate has happened. In other words, it is almost a per se situation; that if that is what has happened, that is the way that section 364 of the Act is to be applied and we roll on from there.

Your Honour has our written submissions. I have nothing further that I think I can usefully add or reply to what has been said. We would submit that it really is a matter that ought to be looked at by the Full Court and looked at soon.

HIS HONOUR: Yes, thank you, Mr McCarthy. Mr Williams, have you anything to say in reply to Dr Kenny?

MR WILLIAMS: No, your Honour. We adopt Dr Kenny's submissions inasmuch as they are responding to my friend's assertion as to consequences. As to the matters that Dr Kenny put touching upon our application to go to the Full Court, I think I have now made our position clear that we are instructed to embrace what your Honour says about the desire to deal with the matter quickly. We would obviously wish, if the matter were to go on Mr McCarthy's point to the Full Court, to take advantage of the Full Court sitting to submit that Sykes v Cleary was incorrectly decided but if the matter is not to go up on Mr McCarthy's point, then we do not now press for the Full Court to reconsider Sykes v Cleary in the light of what has fallen this morning.

HIS HONOUR: Yes, thank you, Mr Williams.

I would like to have an opportunity of reading more closely the cases that have been referred to this morning and I propose to adjourn now until 2 pm at which time I will indicate the directions that I propose to give for the future conduct of these proceedings. If I decide not to refer the matter to the Full Court in the form of a stated case or otherwise, it would be a matter of setting a date for the trial of these proceedings. The date for trial is one which has to be notified, I think, by your party, if I remember correctly, Mr McCarthy, by a public advertisement as well as by notice of trial to the respondent under the Rules of Court.

MR McCARTHY: Part 68, I think, of the Rules, your Honour.

HIS HONOUR: Yes, Order 69, rule 10 and, in particular, subrule (2) provides for:

Fourteen days' notice of trial shall be given by the party obtaining the order to the other parties to the petition, and shall be advertised by the petitioner -

Now, there are two dates which I will mention to the parties so that they can consider them in the event that I decide not to refer the matter to the Full Court and that is next Friday, 9 August or 5 September. Now, 5 September would allow easy compliance with those 14 days requirements in rule 10. If it was going to be 5 September, then it would be necessary to make an order shortening the time limited for the giving of the notice of trial and the advertisement. I mention those two dates because they are dates on which the matter could proceed to trial if the matter is not going to the Full Court and I would be grateful if the parties would consider the alternative dates that I have mentioned so that in the event at 2 o'clock of my deciding not to refer the matter to the Full Court, one of those dates could be selected and an appropriate order made. I will adjourn now until 2 o'clock.

AT 12.05 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.09 PM:

HIS HONOUR: The question for decision at this stage of the proceedings is whether I should state a case or reserve for the opinion of the Full Court a question which would invite reconsideration of the passage of the joint judgment of Mason CJ, Toohey and McHugh JJ in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 at 101-102 in which their Honours held that the election in which Mr Cleary had purportedly been returned was absolutely void. Mr McCarthy, QC for the petitioner, seeks to challenge that passage for two reasons. First, it is submitted that that passage unduly limits the discretion which the Court of Disputed Returns must exercise under ss 360 and 364 of the Commonwealth Electoral Act and, secondly, because that passage is not easily reconciled with the judgment of the Court in In re Wood [1988] HCA 22; (1988) 167 CLR 145. It is apprehended that, unless this passage in Sykes v Cleary is reconsidered and modified, the submissions which the petitioner would make in the event that the first respondent is held to have been disqualified from being chosen will be unduly confined.

Sitting as a single Justice in the Court of Disputed Returns, I would be bound to follow the ratio of the decision in Sykes v Cleary. That is a recent decision of the Full Court and the passage of the joint judgment now under attack was, as I read the judgments, agreed to by myself[1992] HCA 60; , (1992) 176 CLR 77 at 108, by Dawson J at 130-131 and by Gaudron J at 132. A decision of the Full Court on a particular point of law which has been delivered after argument and consideration is not to be re-argued merely because the authority of that decision stands in the way of an argument in a subsequent case that would otherwise be open. At the very least, some ground would have to be shown for doubting the correctness of the authority. In this case nothing that has been said leads me to doubt the correctness of the challenged passage in Sykes v Cleary once it is properly construed by reference to the circumstances of that case.

The joint judgment did not challenge the propositions advanced in In re Wood set out in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 at 101. In particular their Honours accepted that "[a]lthough an indication of a voter's preference for an unqualified candidate is a nullity and the indication of preference for that candidate cannot be treated as effective, the ballot paper is not informal" (at 101). The true ratio of this part of the decision is not that ballot preferences cannot be ascertained by a special count. The ratio is that whereas a special count in In re Wood "was such as to warrant the conclusion that [it] would reflect the voters' 'true legal intent'" a special count in the election of Mr Cleary "could result in a distortion of the voters' real intentions" [1992] HCA 60; (1992) 176 CLR 77 at 102. The reason why the special count could result in a distortion in Sykes v Cleary was "because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent". In other words, if the name of the disqualified Mr Cleary had not appeared on the ballot paper the voters' preferences might have been differently expressed. The logic of that proposition seems to me to be inexorable. The Court's appreciation of the position accords precisely with the direction given by s 364 of the Commonwealth Electoral Act.

Further, the analogy that was drawn from the statutory provisions relating to the death of a Senate candidate after nomination and the death of a candidate for the House of Representatives after nomination is a valid analogy by reason of the different method of counting votes in elections for the different chambers of the Parliament. The Court recognised that, just as the death of a candidate for the Senate prior to polling day would not necessarily distort the voters' real intentions, the disqualification of a candidate in a Senate election would not distort the voters' real intentions. And, just as the Parliament perceived that the death of a candidate in a House of Representatives election might well distort the voters' real intentions, so the disqualification of the candidate who had succeeded in the multi-candidate election in Sykes v Cleary could well distort the voters' real intentions.

Perceiving no ground which would be likely to call for reconsideration of what was decided in Sykes v Cleary, I refuse the application to refer to the Full Court a question raising the correctness of the decision as to the voidness of that election. It will be a matter for argument at the trial of the present petition, in the event that Ms Kelly is held to have been disqualified by s 44 of the Constitution, whether a special count "could result in a distortion of the voters' real intentions" to take the phrase directly from the joint judgment in Sykes v Cleary.

Mr McCarthy has indicated that he proposes to argue that in this case a special count would not result in such a distortion. However, that is not a matter to be determined at this stage. It must be decided on the trial of the petition. I now propose by order to appoint, pursuant to O 68 r 10, a time and place for the holding of the trial of the petition.

It follows, of course, Mr Williams, from what I have said in relation to Mr McCarthy's application, that I would not refer Sykes v Cleary to the Full Court in respect of the point that you seek to agitate.

MR WILLIAMS: Yes, thank you, your Honour.

HIS HONOUR: Now, as to the date - - -?

MR McCARTHY: Your Honour, prior to the adjournment you raised two dates with the parties. There has been some discussion in relation to those dates. As I understand it, both Mr Williams and Dr Kenny have instructions to take whatever is the earliest date. The dates that your Honour proposed was 9 August and 5 September. I wish to draw to the Court's attention this, that in relation to the earlier date there is in the Rules of the Court of Disputed Returns a requirement in rule 10(2) that:

Fourteen days' notice of trial shall be given by the party obtaining the order to other parties to the petition, and shall be advertised by the petitioner in some newspaper circulating in the State or Electoral Division for which the election was held.

A date of 9 August could not be envisaged, your Honour, if Order 68, rule 10 is to be complied with as would be required.

That raises the issue, your Honour, as to the position of any possible abridgment.

HIS HONOUR: What is your attitude about it? Do you wish to have the later date?

MR McCARTHY: Yes, 5 September, but I also say, your Honour, that I do not believe that there is a power within the Court to abridge that time, as such, and that similar rules have been considered by Chief Justice Gleeson in New South Wales, reaching a similar conclusion. In other words, I do not think 9 August is an appropriate date, first of all, as a matter of law and secondly, as a matter of discretion, your Honour, I believe the rules are intending that there be adequate public notice given. This is more than just a lis inter partes.

HIS HONOUR: Yes, quite. I take the point. What do you have to say, Mr Williams.

MR WILLIAMS: Your Honour, we would prefer 9 August for the reasons that have been raised from time to time this morning. My instructions are that we ought be proceeding as quickly as possible to resolve the matter. Your Honour, I do not want to take up your Honour's time in case your Honour would be disposed to give the later date in any event, that the notice that we are talking about is notice to the parties to the petition.

HIS HONOUR: There is the advertisement as well.

MR WILLIAMS: Your Honour is reading it as if the advertisement also requires 14 days' notice.

HIS HONOUR: That depends on what the subject is of the verb "shall be advertised". Is it 14 days' notice of trial or is it notice of trial? Having regard to the purpose of the rule, it would seem to me that it probably is 14 days' notice of trial.

MR WILLIAMS: Yes. We would take issue about whether or not the Chief Justice of New South Wales decided the point. We have had a look at the judgment. We think that his Honour decided that he did not have to decide the point because the merits of the case did not warrant such a treatment in any event. But, your Honour, that is our position. There is now to go forward an agreed statement of fact. Notwithstanding what I said earlier this morning, that no longer applies having regard to our position and what your Honour has ordered, the matter can be dealt with next Friday and we would so urge and urge your Honour to make the abridgment of time.

HIS HONOUR: Dr Kenny.

MS KENNY: Your Honour, either date would be satisfactory from the point of view of the Commission. I have a personal preference for 5 September but it is no more than that.

HIS HONOUR: Yes. I think we shall set it for September but since we adjourned it has been drawn to my attention that there is another matter in which you have been involved, Mr McCarthy, which is set down for mention on Friday next and if a direction is then given for the commencement of the trial which would lead forthwith to the reference of a question to the Full Court, it would be necessary to fix the trial in accordance with rule (10)(2) in a way which would allow that matter to comply with the 14 days' requirement also. Now, the day in which it was thought that that matter might be able to get on before the Full Court was 3 September.

MR McCARTHY: That is my understanding, your Honour.

HIS HONOUR: That would make it extremely tight in the sense that it would have to be advertised on Monday, 19 August, to have a trial on the morning of Tuesday, 3 September in order to have a reference of the question on that morning to the Full Court.

MR McCARTHY: Your Honour, that was a part of a programme that results in an agreed statement of facts by 13 August and to come before you on 16 August. Might I have a moment to speak to - I mean, the parties are here. If I could just speak to my learned friend, Dr Kenny, it may be we can - - -

HIS HONOUR: I am not sure that the respondent is here.

MR McCARTHY: No, but their position was that they were happy with the idea of a date in September. Your Honour, I only know that. I do not propose to put that forward as something on instructions. Might I have a word to - - -

HIS HONOUR: Yes, of course.

MR McCARTHY: Your Honour, from the point of view of the intent of the section, obviously the High Court would be more comfortable - your Honour would be more comfortable if the advertisement had gone by the end of that week. Your Honour, would one of the other days that your Honour is in Sydney, that is the 14th or the 15th, be as convenient to hear the parties in relation to directions, as the 16th?

HIS HONOUR: Yes.

MR McCARTHY: Would your Honour consider, if the parties are available on one of those days, whether we - I mean, obviously, the respondent has to be contacted. We have liberty to apply - whether the matter could be brought even by, in terms of chambers or approaching your associate as to having a date or arrangements made for the date to be altered?

HIS HONOUR: Yes, that can be done. This is on the directions hearing?

MR McCARTHY: On the directions hearing. So that, your Honour, the detail - the date of 3 September can be retained and that we would be in a position to, in effect, if it was the Wednesday, to have the advertisements out on the Wednesday afternoon or, if it was the Thursday, on the Thursday afternoon, but, in any event, to have had material circulating in the electorate before the end of that week so that we would comfortably have made the 14 days in respect of that.

HIS HONOUR: Yes. Well now, you might bear this in mind as well. What would be done then would be to specify the morning of 3 September as the date of trial and on that occasion a pre-agreed special case or statement of facts reserving a question would then be signed by me as the first step in the trial referring the matter that day to the Full Court. There would not be any difficulty, I imagine, about that. The day would have to commence with the formal trial of the proceedings.

MR McCARTHY: But, your Honour would envisage having a directions hearing in any event?

HIS HONOUR: I will have a directions hearing, yes. Indeed, then we could have the agreed statement of facts.

MR McCARTHY: The draft.

HIS HONOUR: And the draft of what might then be the reference of the question to the Court. Is that agreeable to you, Dr Kenny?

MS KENNY: Yes, it is, your Honour.

HIS HONOUR: And what I have just said and what you have just said, of course, is subject to whatever the respondent might say on the directions hearing, whenever that might take place.

MS KENNY: I think we can undertake to speak to the respondent's representatives and let your Honour's associate know whether we foresee any particular difficulty.

HIS HONOUR: Yes. Well then, on that assumption, 3 September would be maintained for the hearing of the Northern Territory matter and this matter could then be set down for trial on Thursday, 5 September.

MR McCARTHY: If the Court pleases.

HIS HONOUR: Now, it would be helpful to have that agreed statement of facts as soon as possible. Is there any date by which the parties are likely to be able to agree to that?

MR McCARTHY: I would hope to have that document ready by early next week and I will send it to Dr Kenny and Mr Williams for their signatures and tender it to the Court. There would really only be - well, it will be the consolidation of the two documents.

HIS HONOUR: Of the two documents, yes.

MR McCARTHY: Your Honour could expect that that document would be filed in the High Court by early next week, for instance, either by Tuesday afternoon or Wednesday morning.

HIS HONOUR: Yes, very well. Thank you, Mr McCarthy. Are there any other matters then, apart from making an order appointing Thursday, 5 September at 10.15 am at the High Court in Canberra as the time and place for the holding of the trial of the petition?

MR WILLIAMS: No, your Honour.

MR McCARTHY: Only, your Honour, if costs could be reserved and that liberty to apply can continue in relation to the matter.

HIS HONOUR: Yes. You have no difficulty with that, Mr Williams?

MR WILLIAMS: No.

HIS HONOUR: Nor you, Dr Kenny?

MS KENNY: No, your Honour, thank you.

HIS HONOUR: Very well, that order will be made. Costs will be reserved and liberty to apply generally. I am grateful to counsel for their assistance in this matter. Adjourn then until the 16th of this month in Sydney.

AT 2.27 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED