Free v Kelly Anor S94/1996 [1996] HCATrans 339 (5 September 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

First Respondent

AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

BRENNAN CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 SEPTEMBER 1996, AT 10.18 AM

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 T.E.F. HUGHES, QC: May it please your Honour, I appear with my learned friend, MR T.D.F. HUGHES, for the first respondent. (instructed by Minter Ellison)

MS S.C. KENNY: May it please your Honour, I appear for the second respondent in this matter. (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia): May it please your Honour, I appear for the Attorney-General for South Australia intervening. (instructed by the Crown Solicitor for South Australia) The Attorney-General only intervenes on the question of whether the respondent was incapable of being elected by virtue of section 44(i) of the Commonwealth Constitution. It is my understanding from discussions with counsel that that question is unlikely to arise or is unnecessary to be decided given that a concession has been made that the respondent was incapable of being elected because of holding an office of profit under the Crown, and we are also informed that no concession has been made in respect of section 44(i) relating to the New Zealand citizenship of the respondent.

In those circumstances, your Honour, whilst we do intervene, we then seek leave to withdraw on the basis that the issue that is of concern to the Attorney-General for South Australia will not arise.

HIS HONOUR: Are you seeking that leave at this stage, or do you wish to just stay and see what happens?

MR SELWAY: I would seek that leave at this stage, if that is convenient to your Honour.

HIS HONOUR: Yes, certainly. Thank you, Mr Solicitor. Yes, Mr McCarthy.

MR McCARTHY: Thank you, your Honour. Your Honour, the matter is listed for trial today pursuant to your Honour's orders on 5 August. Your Honour, this is a trial of a petition dated 7 May 1996 in which the petitioner, Ross Vincent Free, alleged that in relation to the election for the Division of Lindsay held on 2 March 1996, the now first respondent, Jacqueline Marie Kelly, was disqualified under section 44(i) and section 44(iv) of the Australian Constitution from being capable of being elected as a Member of the House of Representatives.

There have been a series of interlocutory proceedings in relation to this matter before your Honour and determinations made in relation to the facilitation of issues that has led your Honour to an agreed statement of facts being prepared and signed by the parties. This, pursuant to your Honour's directions, was to be filed in Court. It has been to the extent that an order is required. Your Honour, I would tender that to the Court now as the evidence in the proceedings that has been agreed between the parties on which the matter is to proceed.

HIS HONOUR: I take it that is by consent?

MR HUGHES: Yes, your Honour.

HIS HONOUR: Yes.

MR McCARTHY: Thank you, your Honour. Might I take your Honour to the agreed statement of facts?

HIS HONOUR: Yes. I have read the statement of claim.

MR McCARTHY: Thank you, your Honour. Your Honour, perhaps the argument can be just concertinaed in terms of the facts. The petitioner would draw your Honour's attention to, in particular, paragraph 11 in relation to the respondent forwarding a discharge application to your Honour noting that a nomination was lodged on behalf of the first respondent on 30 January 1996 and, as it was a nomination that was lodged with the Electoral Officer through a registered political party, it was lodged on 2 February 1996 - that is in paragraph 12. So a nomination was lodged on 2 February. Then your Honour will note in paragraph 14, a formal reference to the hour of nomination on 9 February 1996. Then your Honour will note in paragraph 15 that the first respondent was transferred to the RAAF Reserve on 17 February 1996.

Your Honour, what those facts disclose is that the first respondent was, at the date of the calling of the election which is referred to in paragraph 9 and at the date of the close of nominations which, for the form of nomination that the first respondent filed under, was on 7 February, that at all relevant dates in relation to the presentation and to the closure of nominations, the first respondent was and remained a permanent serving officer in the Royal Australian Air Force and was part, therefore, of the naval and military forces of Australia for the purpose of section 44 of the Constitution and had not, at that stage, been transferred to the reserve and, in those circumstances - and it is not in dispute - was the holder at that time of an office of profit under the Crown and was disqualified because of that circumstances from being chosen as a Member of the House of Representatives under the Australian Constitution.

HIS HONOUR: Mr Hughes, may I proceed on the footing that it is accepted on your part that the first respondent was incapable of being chosen or of sitting as a member of the House of Representatives within the meaning of section 44 of the Constitution by virtue of the operation of subsection (4) of that section?

MR HUGHES: Your Honour may so proceed.

MR McCARTHY: In those circumstances, as was outlined to you by Mr Selway, neither the petitioner nor the first respondent will take your Honour to or seek to rely on those issues that relate to section 44(i) and it would not seem to be either necessary or appropriate for the disposal of this petition, your Honour, for that issue to be canvassed before you today.

HIS HONOUR: Yes.

MR McCARTHY: And, in those circumstances, those facts are not - well they are in the statement of facts, your Honour, but I address no submission towards that material.

HIS HONOUR: The question simply is what order should be made, consequent upon that - - -

MR McCARTHY: Your Honour, in the petition, page 4 and 5, the orders that are sought by the petitioner are set out, and your Honour will find, and the petitioner would move, that the Court, to begin with, make orders in terms of paragraph 1; that this Court declare that the respondent was not capable of being chosen as a member of the House of Representatives for the division of Lindsay, at the election on 2 March 1996 and is incapable of sitting as the said member; that this Court declare that the respondent was not duly elected as a member of the House of Representatives for the division of Lindsay.

HIS HONOUR: The second part of that first prayer seems to go too far, does it not? It is a question of the declaration the respondent is not capable of being chosen at the specific election.

MR McCARTHY: Yes.

HIS HONOUR: And then if one likes one can add a second prayer for that declaration, but it seems to go too far, does it not, to declare that she is incapable of sitting as a member, if she were elected at some future election?

MR McCARTHY: Your Honour, I do not press those words after "1996".

HIS HONOUR: No, your concern is to have the election declared void so far as the election is concerned.

MR McCARTHY: That is right. Your Honour, I would not press the words after the words "1996" in the first prayer for relief.

HIS HONOUR: Yes.

MR McCARTHY: I do press the second prayer though, your Honour. Your Honour, as I understand it, my learned friend, Mr Hughes, would press for order (4), in the orders. Your Honour, that brings us then to what is the matters in issue today and for which your Honour has set aside time, and that is as to what is the appropriate order that does flow from the election of the first respondent being declared void or whether the election as a whole fails, and that is that your Honour declare either the election is absolutely void, which has the statutory consequence that a further election will be held in the seat of Lindsay, or your Honour could devise orders whereby there is a special count as I had outlined to your Honour on an earlier occasion as the submission of the petitioner that there be a special count of the ballot papers from the election on 2 March at which the first respondent is excluded. Might I address your Honour on those issues now?

Your Honour, to facilitate the presentation of that argument, might I hand up to your Honour an outline of those submissions.

HIS HONOUR: Yes, thank you.

MR McCARTHY: Your Honour, the first major point on which the petitioner would rely is this: the first respondent was incapable of being chosen as the Member for the Division of Lindsay at the time of the commencement of all procedural steps necessarily involved in being a candidate in the electoral process, of which nomination is a part. That is a specific ruling, your Honour, in Sykes v Cleary. So that, the first respondent was incapable of being elected, at least from the date that she nominated, and it may have been at the date that the election was called. Her nomination was filed on 2 February. At the time her nomination was filed, the first respondent was incapable of being elected and remained so on polling day and on 22 March, when the Divisional Returning Officer, subsequent to the scrutiny of votes and distribution of preferences, declared the first respondent elected, pursuant to section 284 of the CEA.

The presence of the first respondent in the Lindsay election, as a candidate under disqualification, only becomes significant if the respondent is elected, not if the first respondent stands but is not elected. Your Honour, that is the second point on which our argument is built. The Court gave detailed consideration to this issue about the presence of a disqualified candidate, and the effect of a disqualified candidate in an election in In re Wood. There was a specific case from the Northern Territory that was cited in support of a proposition that a disqualified candidate in a field - I will take your Honour to the quote, it is at page 167 of the Court's judgment, 167 CLR 167. Your Honour, at page 167 there had been a submission about what to do after Senator Wood had been declared disqualified, and the Court was considering various alternatives for filling his seat; one was filling the vacancy of the 12 seats. The Court rejected that and, at point three, said:

The decision of Nader J. in Hickey v Tuxworth was cited in aid of the submission. That was a case where a challenge to the validity of the election by preferential voting of a qualified candidate in a single member seat was declared void. Nader J held the election void because, an unqualified candidate's name being on the ballot paper, it was impossible to be satisfied (having regard to the closeness of the voting and the order in which preferences were distributed) that the result would not have been different if the unqualified candidate had not taken part. With respect, the conclusion in Hickey v Tuxworth cannot be accepted, at least for the purposes of the Act. If the unqualified candidate's nomination in that case was formally correct and his name was properly on the ballot paper, it is difficult to see how the election miscarried. The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination in due form: see s. 172 of the Act. In any event -

and it goes on. Your Honour, section 172 of the Act has not been amended since that time. That position is still the position in relation to our law, but what it brings out is that an election, even under the Act, will not be simply declared void because there was the presence of a candidate in the field who was disqualified, including disqualified, reading in the context of In re Wood, under section 44 of the Constitution.

Now, your Honour, I take you to the agreed statement of facts next as the illustration of what it is that happened in relation to the preferences of the electors in that poll. Exhibit E sets out the results of the election in Lindsay and what I wish to draw your Honours' attention to particularly is this, that the first respondent in terms of first preference votes received a minority of those votes. The first respondent did not receive a majority of votes. In fact, as set out in paragraph 4, 57.48 per cent of votes in that electorate were cast for candidates other than the first respondent.

Your Honour, we have in Australia a voting system whereby we do not allow a candidate who simply has a plurality to be declared elected as is the case in the UK and the US. We have a two-stage process. A candidate who receives a majority of first preference votes is declared elected under our Act, it is 274, and there is a procedure whereby preferences are distributed if no candidate has received 50 per cent of the vote. But the first stage in which votes are looked at is to see if there has been a majority achieved by any candidate. Now, when that is looked at, in terms of the result in Lindsay, what it discloses to the Court is that in relation to the voting for a disqualified candidate, it is only a minority of the votes that have gone to that disqualified candidate. A majority of the votes, a majority of the electors have voted for qualified candidates.

It is that majority that is the central concern of courts of disputed returns and of our election law. The central principle of election law is that the constituency, in fact, had a fair and free opportunity of electing the candidate which the majority might prefer and were not prevented from recording their vote effectively according to their own preferences. I have included there, your Honour, the standard references to Chanter v Blackwood, and Woodward v Sarsons which I know are both well familiar to your Honour in relation to those particular principles.

Now, your Honour, it was clearly the intention of the electors of Lindsay that when voting on 2 March to return the candidate capable of being chosen under section 44 of the Constitution preferred by the majority of electors. The majority of electors have not given their first preference votes to the first respondent. If the first respondent, your Honour, given her disqualification, had been eliminated during the preference distribution in the scrutiny even if disqualified, subsequent preferences would have been validly cast and properly counted. This is so, in the circumstances that the preferences of the first respondent had been decisive in securing the election of one of the other candidates.

This position would have existed, your Honour, in Lindsay, if your Honour looks at E, if your Honour assumes, for instance, that John Wilson, the Australian Democrat Candidate, had in actual fact been disqualified. His presence in the count and the distribution of his preferences would not at law vitiate the election of the first respondent, that is assuming that she was capable of being chosen under section 44, and the reference there is to In Re Wood and again, your Honour, I have made a mistake in having in that reference, that is the reference to 167 in In Re Wood.

Your Honour, that must follow from that passage that it will only be on a declaration of election that the disqualification of a candidate would come into play. Otherwise, the very strong repost to Hickey v Tuxworth is hardly explicable. Now, your Honour, the first respondent received a minority of the first preference votes. When those votes were cast for her on 2 March, she was already incapable of being chosen. That went back to 2 February. Indication of a voter's preference for an unqualified candidate is a nullity, see In Re Wood, and I will take your Honour to that.

This is the passage about the nature of voting and I think it is important, your Honour, just to go through this indication. Your Honour may recall I have taken you to this at a previous time in these proceedings about the analogy between the voting, at least in terms of the ballot paper, for the Senate and for the House of Representatives. At page 165 at about point 5 of the page your Honour will find these words:

The legislative scheme prescribed by Pt XVIII of the Act - "The Scrutiny" - for ascertaining the result of the polling in a Senate election is calculated to reflect the proportionate support of the electors for the respective political parties or groups from which the candidates for election are drawn. The ballot papers, printed in accordance with Form E in the Schedule to the Act, provide for the placing of numbers in sequence against the names of the candidates "so as to indicate the order of his (the voter's) preference for them":

The reference there is section 239(1)(a). It is a similar provision in relation to the House of Representatives:

The order may be indicated by placing the figure 1, a tick or a cross in a square appropriate to a group voting ticket.....The purpose of the poll is to choose in accordance with the Act the preferred candidates who are qualified to be chosen, 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.

Stopping there, your Honour. The votes have been cast. A minority, when we go to the first way in which a candidate is chosen - which is to have a majority of the first preference votes - it is disclosed at that side that a minority of voters have voted for a candidate who is disqualified - 42 per cent - a majority. A majority of the electors. The common law majority has voted for candidates who are qualified. We know, as a matter of law, that she was disqualified at least from the date of nomination, which was prior to the date on which the votes were cast and prior to the date of scrutiny, and that those votes are a nullity.

In those circumstances, your Honour, it is appropriate when looking at that count to say, in our submission, that the first respondent is the first candidate eliminated from that count. The votes for her were a nullity, but unlike in England, and I will come back to that, they are not thrown away. The appropriate point, regardless of the votes of other candidates is that those votes were a nullity, therefore, when they are immediately disclosed, one moves from there to distribute her preferences first before one considers the primary votes of all the other candidates who are not under disqualification.

HIS HONOUR: On your argument, Mr McCarthy, why do you not say that Mr Free then had an absolute majority of the votes?

MR McCARTHY: He did not, because we have a preferential voting system, your Honour.

HIS HONOUR: But you do not need to go to it if you eliminate Ms Kelly's votes, do you?

MR McCARTHY: No, but Ms Kelly has first preference votes, your Honour. This is a preferential voting system, and as has been made clear in - - -

HIS HONOUR: If you look at the first line in E, if you delete 31,811 votes to Jacqui Kelly, you are then left with the other figures in the line, if your argument be right. There is a nullity in relation to 31,811.

MR McCARTHY: In relation to the first respondent, yes, but not in relation to the election as a whole. In relation to the election as a whole, an elector is asked to express a series of preference. That is what In re Wood was emphasising - that the other expressions of preferences are not rendered invalid as a result of that preference being a nullity. You can count through it. This is an election in which it is manifest on the first count that Mr Free did not have a majority of the votes, and it would be necessary to proceed with a distribution of preferences. But, in terms of the votes that are distributed, the first matter that would arise is that those cast for Ms Kelly would be a nullity, therefore the preferences on her votes would be distributed. It would be appropriate to do that - - -

HIS HONOUR: That would be the first distribution of preferences, would it?

MR McCARTHY: Yes, your Honour.

HIS HONOUR: What is the section of the Act which provides for that?

MR McCARTHY: There is not a section, your Honour; no more is there was a section in the Act that provided for Senator Wood's vote to be first of all regarded as being a joint ticket arrangement. The Court thought it was just and proper to do so, even though he was disqualified; his joint ticket with Irina Dunn. Secondly, that it was to be treated on a basis that they were to count through those particular votes.

HIS HONOUR: Which is the section dealing with elections of the House of Representatives and which provides for the distribution of preferences seriatim?

MR McCARTHY: Yes, your Honour. I am sorry, I misunderstood you. I though you were saying was there an answer within the Act, itself. If I could take you to - - -

HIS HONOUR: If we have a look at the section we might find some illumination, if not an answer.

MR McCARTHY: Your Honour, it is section 274 of the Act. Your Honour, if I might take you to the Act, please, and just briefly go through the sections. 274(1) refers to the scrutiny and makes reference to 266 which your Honour will recall is in relation to declaration votes and the counting of declaration votes. The reference is then to:

Each Assistant Returning Officer shall, in the presence of a polling official -

open the ballot boxes, record their condition, check the accuracy, reject all the informal votes -

count the first preference votes given to each candidate on all unrejected ballot papers;

make out and sign a statement.....setting out the first preference votes given for each candidate, and the number of informal ballot papers;

and place in a separate parcel all the other votes.

BRENNAN CJ: Can I take you to 274(7)(d)(i), is that the provision which deals with the - - -

MR McCARTHY: Yes, your Honour. It is:

the candidate who has received the fewest first preference votes shall be excluded, and each ballot-paper counted to the candidate shall be counted to the candidate next in the order of the voter's preference;

the process of excluding the candidate who has the fewest votes, and counting each of his or her ballot-papers to the unexcluded candidate next in the order of the voter's preference, shall be repeated until only 2 candidates remain in the count; and

if, following the ascertainment of the first preference votes given for each candidate or the exclusion of candidates under this paragraph, a candidate has an absolute majority of votes, that candidate shall be elected.

Then, your Honour, that is the extent in relation to a framework that the Act provides in relation to preferential voting.

BRENNAN CJ: Then, my question to you is, how do you square that provision with the submission that you now make?

MR McCARTHY: Your Honour, I do that by taking the legal effect of a disqualification of a candidate as discussed in In Re Wood and placing that beside (d) to arrive at this result, that when looking back in hindsight the first occasion in terms of counting when the now known position of the first respondent becomes pertinent to the election of a candidate is on the counting of the first preference votes. The votes for her at that stage, that is the first preference cast for her, were a nullity. It would seem on that basis, your Honour, that she is in a context where the result discloses that she received a minority of the votes and, indeed, no candidate received a majority of the votes, that it is appropriate that she be the first candidate eliminated. It is an adjustment, in our submission, appropriate adjustment, of an attempt to deal with a difficult situation, the same as it was in Wood as to applying an appropriate principle to the result.

BRENNAN CJ: Can you really submit that adopting that process of counting, namely, to treat Ms Kelly's primary votes as being zero so that her preference votes are the first distributed, would be a fair reflection of the voters' intention at this election as distinct from the process that was adopted? Because if you cannot, you have a job in front of you, do you not?

MR McCARTHY: I do, your Honour, and I do not pretend otherwise. The first principle we are looking at, your Honour, is not just voters' intention, it is whether a majority of the voters have had an opportunity to express their preference, and what you have on that first preference distribution in the seat of Lindsay is clarity that a majority of those electors voted for candidates who were qualified to be elected, not candidates who were unqualified to be elected. A majority of the voters expressed a preference for a candidate capable of being elected.

HIS HONOUR: You cannot have it both ways, can you, Mr McCarthy? On the one hand, if you take 57.48 per cent, who are the majority for the purposes of that submission, as the voters whose opinion should be properly expressed, then you would eliminate the 42.52 per cent who are the minority.

MR McCARTHY: Yes, your Honour.

HIS HONOUR: And whose preferences, on that footing, are not to be given an appropriate expression. Alternatively, if you decide that Ms Kelly's vote should be the first distributed, the ones that you are giving primary operation to are the minority's votes, namely, the 42.52 per cent, not the majority's, who stay where they are until the minority's votes have been distributed. In other words, your submission, as I presently understand it, contains that dilemma.

MR McCARTHY: But, your Honour, we know, as a matter of law, that the first preference vote was a nullity and - - -

HIS HONOUR: Well, that depends. When you say it was nullity, it was certainly ineffective to produce, in the end, the election of a candidate who was unqualified. But it is another matter to say that the votes which were cast, if they were cast as you pointed out for a person who was unsuccessful, could never have any effect at all, so that, when one says that they are a nullity, they are a nullity for a purpose. Does it go any further than that?

MR McCARTHY: It does not go any further than that. But in going back, your Honour, they cannot be - that was the point about her being disqualified from the very beginning of the process, when we look back on the vote, that the first thing that is looked to to bring about, in my submission, parity, would be that she has been eliminated, and should be eliminated, ahead of any of the candidates that was qualified to be elected. And it would be appropriate, where it is the law, that her preferences, or the preferences on ballot papers that marked her as the first candidate, should be distributed amongst the other candidates who are qualified and capable of being elected and who represent the 57 per cent in that seat as being the way in which, since the voters who voted for her are in a position where she is not qualified to be elected, their second preference amongst the candidates qualified to be elected can be determined, and that that is the first thing, in my submission, that ought to be done in terms of fairness, both to those candidates and to all the electors.

Now, your Honour, I draw that from three bases; that it is clear that she has been - this is always a hindsight view - but it is clear now that she was disqualified and was incapable of being elected, your Honour, even prior to any other of the candidates in the election.

HIS HONOUR: That seems to me to be a very difficult statement to accept. It is not a question, on this approach, of her being eliminated pursuant to a count or a scrutiny. She is simply never eligible to be elected.

MR McCARTHY: Yes, your Honour.

HIS HONOUR: So, we are not concerned about her elimination, we are concerned about the effect of the vote which proceeded on a ballot paper that contained her name, and the expression of the voters' intentions. So that, if one is talking about the distribution of votes in a particular order, one can go to 274(7)(d)(i) and apply that in terms of saying, "Well, the votes for Ms Jacqui Kelly must be deemed to be zero, therefore, although they are deemed to be zero, somehow that will make her votes the minimal number and her preferences are those first to be distributed," I can understand that would be an argument. It has difficulties in it, because if there were no vote for a first preference, then the vote might be informal. But let us assume that is the way in which it is done.

If it is done, it results in the distribution of preferences which is different from that which, in fact, took place, and the question then is, which of the methods of distribution of preferences is the one which is likely to give the appropriate expression to the opinion of the voters as a mass. That is where I think the argument runs into difficulty.

MR McCARTHY: Yes, your Honour. Well, when your Honour says the argument "as a mass," that a majority of the electors - - -

HIS HONOUR: No, one cannot say the majority in any particular level, can one, in a preferential system? One can only say the opinion at the last line. I mean, the method of distribution of preferences is critical, or may be critical, to the last line, may it not?

MR McCARTHY: It must be. It must be critical. But that is in circumstances, your Honour, where we are operating the alternative vote system. The first stage, before any of that can occur, is a determination as to whether a candidate has received a majority of the votes of the first preferences. Now, that is the first time that the votes become identified. It seems to me, or I would submit, your Honour, the policies concern coming back the other way from the centrality of election law, is that at that stage it is manifest that it is only a minority that have been affected by the disqualification.

A majority of the electors, and their votes out there, on the first stage have been for candidates who are qualified to be elected, and we are not dealing with a situation then where one would have, I would have thought, extreme difficulty in putting any of this if, for instance, Ms Kelly had received 70 per cent of the vote on the first count - 70 per cent of the vote was of first preference votes in the seat, or, as was the background, it would seem to me in my submission with the Court in the Wills case, Sykes v Cleary, 95 per cent of the vote in that seat had been cast for candidates who were disqualified. An enormous percentage.

But it is somewhat different, and one would think that the principles in election law would start to shift, when one is dealing with a situation that a majority of the electors have voted for qualified candidates and it is a minority that are affected at the first stage of the count by the disqualification, because the implication for the rest - the turn around of the alternative, your Honour, is that the fact that there is a majority there for qualified candidates is to be set at nought - set at nought.

It is to be negatived by what happened in relation to the minority and there is not, in our respectful submission, sufficient weight given in that to seeing if there is a way in which the election can be saved; in other words, that the election does not fail as a whole. In election law it is a matter of concern to have in the result a majority who have cast their votes for candidates who are qualified. It is a concern to tell them that they have to go and do it again. Is there a way in which this is not distorting the election, the electorate's views? In the proposal that the petitioner makes, there is both law and I hope, or submit, some sense.

HIS HONOUR: Mr McCarthy, I would be grateful for your assistance on what you say the election law is because, as I understand it, subject to the submissions that you might make, it is that a vote which is cast for a candidate who is disqualified is a nullity for the purposes of the election of that person but is not a nullity - in other words, is not thrown away - and is included in the scrutiny at least in those cases where, by the law of elections, the vote was not thrown away by reason of the voting by the elector for somebody who was known at the time of the vote to be disqualified. I am thinking of the Bristol Election Case of Wedgwood Benn and the cases to which that case refers.

MR McCARTHY: Your Honour, I think Wood deals with the inaptness of the Bristol approach in Australia in relation to a preferential voting system. There it was dealt with in relation to the Senate, but of course in England, your Honour, as in the US, there is only one count.

HIS HONOUR: Yes.

MR McCARTHY: There is no other provision for any other count and the vice that was always got at about this was never to allow a minority candidate to come along and get himself declared elected. The law always lay against allowing a minority to intrude itself into the legislative body that was involved. It was always the principle that it had to be the popular majority that was included. But there are other ways in which majorities can be calculated. In England it is left open. A plurality is taken as being sufficient. As your Honour is aware, in Australia under our present system we insist on 50 per cent plus one and hence the transferable vote. The extension that has occurred in Australia over that is in relation to the value of various preferences.

Your Honour, what is being put about this is that, while it is true that the vote for her is a nullity - that is the preference for the first respondent - the issue becomes the point in recognition in that count at which this could be taken fairly as having the consequence.

HIS HONOUR: What you are saying in essence is that the first preference votes which were cast in favour of the first respondent should be counted as though they were first preference votes in favour of the person to whom the second preference was given.

MR McCARTHY: Or distribute it in that way, yes, as a first distribution.

HIS HONOUR: That is the effect of it.

MR McCARTHY: Yes.

HIS HONOUR: The difficulty I see in that is that it might completely skew the count which is contemplated by section 274(7)(d)(i). Not that it would necessarily, but that it might.

MR McCARTHY: Your Honour, the weight that needs to be given to that is really the context in which any particular proposal would take effect. It would be different, in my submission - and your Honour would be more confident of this - where it is a minority of the vote that is affected. That it is not the Wills case, with 95 per cent of the vote involved, or a case where - and it is the only reason this is coming in is that section 274(7)(d)(iii) is not applying, that is, the proposal that is being put to you would be closer to the East Bristol situation, would be for a submission to be made for orders to be sought for a recount in a situation where it is clear that the disqualified candidate had an overwhelming majority of the vote. That is not so here.

The Court in terms of its weight against other factors could skew the result, is less weighty in a situation - it is a minority that is going to be affected and it is really in a way, your Honour - I am turning East Bristol around - to say that line of authority is now being used to virtually say that when a first preference minority of votes, in the first identification in the count, is what is affected by a disqualification, then that has the effect of declaring the election void. This, it is submitted, is an area which calls out for another answer and not simply a by-election. That when our votes, as the votes in Lindsay are recorded, it is immediately apparent that, when looking at those votes, that the votes for Ms Kelly are a nullity. What should be done about that? The proposal is to count those out. I would submit, your Honour, that that is appropriate in a way of allowing the whole of the electorate to express a choice amongst the qualified candidates, that if their legal intent is there, you cannot have a situation - and this is compulsory voting which has been considered and reaffirmed by the Court only in recent months in Langer's Case - that what the Parliament wishes you to do is to express your preferences for all the candidates.

What is behind that is that, in this form of election, it cannot be assumed that the candidate for whom you vote may necessarily be successful. That is why you are asked, in effect, that if that candidate cannot be elected, what is the next choice that you would have in relation to the candidates in the poll, and so on? We are asking you, in this submission, your Honour, to analogise the situation with that, that a candidate can be incapable of being elected in the usual way, because he does not get enough votes, but he can also be incapable of being elected because of disqualification, but it has the effect that that candidate is not going to be chosen, whether it is through votes or disqualification.

In those circumstances, your Honour, it is said that what one can recognise in a preferential voting system is that the further marks on the ballot paper are the candidate's choice if that candidate is eliminated, and one is taking the preferential voting system and using it to give effect to people's intention, the electors' intentions. If the first respondent cannot be elected, it is known on the ballot papers what the electors in Lindsay would wish. I am sorry, I do not mean no one. It can be determined as to what they would wish in relation to those ballot papers. They can be counted further. Their second and third and other preferences are given there. That is what - - -

HIS HONOUR: I understand, I think, what you would wish to happen. Could you frame for me the order, if any, which ought to be made by this Court in relation to the re-count for which you would contend.

MR McCARTHY: Yes, your Honour. It would be a modification, your Honour, of the order that was made in In Re Wood (1988) 167 CLR. If I could take your Honour over to that. Your Honour, at page 173, there is a copy of the proposed direction that was given in Wood's Case:

"(1) a vote indicated on a ballot-paper opposite the name of Robert Wood be counted to the candidate next in the order of the voter's preference and the numbers indicating subsequent preferences be treated as altered accordingly;

(2) the further counting and recounting be conducted as nearly as practicable in accordance with the relevant provisions of s 273 of the Act as if -

it would be there as if one vacancy had occurred. Your Honour, the rest of that is in relation to Senate voting. I would have a proposal whereby it would be an elaboration and a variation on what is, in effect, order 1. The direction would be that there be, as I would envisage it, your Honour, a special count; that the next preference on the first preference votes for the first respondent be distributed first and, thereafter, that there be a preference distribution in accordance with section 274(d)(i) and (ii), and that the preferences - I do not think I would have to take it much further than that, your Honour. In standing terms, that would achieve the result. Obviously, there may be adjunct orders that would need to be made, but in terms of the central thrust that would the nature of the order that one would be looking for.

HIS HONOUR: Yes.

MR McCARTHY: Your Honour, the other matter that I submit supports a re-count is this. What is also clear, if I could take your Honour back to exhibit E, is that it is only after a fifth distribution of preferences that the first respondent was elected, that what is being proposed in relation if a special election is ordered is that, really, the determination that was made in relation to fourth and fifth preferences in this case, not first preferences, are being made determinative of the result, that it is the receipt by the first respondent of preferences at that level and that time of the count that becomes critical.

My point here, your Honour, is simply this, that it is, in terms of the way that voters had marked their ballot paper, a matter of their choices, for a decisive percentage of them, towards what appeared to be their fourth and fifth choices that has determined this particular election and that, in that context, your Honour, it is again more - well, it is simpler and it is probably more correct to say that if a proposal for a recount was put forward, what that has been weighed against is what had been fourth and fifth choices, and that one could really ask oneself in those circumstances that if the voters at that level of preference were told of a choice between a candidate or envisage a choice between a candidate who was capable of being chosen, and one who was not, as to what their preference might have been, in other words, as to what real intention may have reflected at that stage.

HIS HONOUR: Yes. The curious implication of your submission though, Mr McCarthy, is that at present, or at least under exhibit E, none of the preferences of the voters who gave their first preference to Ms Kelly have been distributed at all. Under your submission, it would be the distribution of those preferences which would, in all probability, be conclusive of the result of the election. In other words, the voters went to the poll on the understanding that they would make a choice between the six candidates. They voted preferentially in such a fashion as returned Ms Kelly as a member, and that was done conformably to section 274 by a distribution of the preferential votes cast by those who cast first preferences for Edwards, Wilson, Cooksley, and Greek On your method, those preferences, or all of them at all events, would not be distributed but the overwhelming influence of the distribution would be of the preferential votes of Ms Kelly that have never thus far been distributed at all?

MR McCARTHY: That is the consequence of a candidate receiving a substantial vote.

HIS HONOUR: Yes.

MR McCARTHY: I neither resile nor escape from that.

HIS HONOUR: No, that is the consequence of it.

MR McCARTHY: Certainly.

HIS HONOUR: The reason why I pointed it out to you is so you can make whatever submission you think appropriate in relation to the question of whether, by adopting the submission that you have made, there is a risk that the electoral will intended to be expressed would not be expressed.

MR McCARTHY: There are two things to be said firstly, in the perspective your Honour has put on the matter and that is, I would submit, that this approach obviously would release a whole series of votes that would be distributed elsewhere to other candidates. I do not accept in relation to the figures - just looking at the figures, your Honour - that unless - and I think your Honour can take this as a matter of fact, the only way in which the first respondent's votes could have decisive effect per se is if they were distributed to the petitioner. I do not want to go outside the agreed facts, but I do not think it would be disputed, your Honour, if I told you that the petitioner occupied the last position on the first respondent's how to vote card, or thereabouts.

If you put together the numbers, your Honour, of the first respondent's vote with any of the other candidates, it does not equal 50 per cent and that being so, there will continue to be a count under section 274(d)(i) and (ii) and that comes to my next point, your Honour, and that is this that in those circumstances under (ii), the vote will continue to be counted and you will bring into play the votes of the other candidates in relation to their preferences at various stages of the distribution until two candidates are left. I will immediately concede, your Honour, that on the figures that stand there, a candidate who will be in the last count in relation to that is the petitioner and that it would be the building of some other majority around one or other of the candidates other than the petitioner that may come about or it may well be that the petitioner at some stage or, indeed, at the end as a result of other distributions of preferences may well be elected.

Your Honour, my point is this, that the flexibility of the preferential voting system is such and the figures before your Honour are such that the real choice of all the electors in relation to candidates capable of being chosen would be expressed by the proposal that was put forward and it is not unfair because electors do go to the poll in a situation where they are voting and they number candidates in such an order and know it when they vote that that is an order of their preference, that if a candidate is eliminated their vote moves along to another one of the candidates in the piece. Now, your Honour, that result can be achieved by the method of a re-count in that particular way.

Your Honour, the principle against me is the expression in Sykes v Cleary. I dealt with that at paragraph 10 of the outline of submissions. Can I take your Honour briefly to that? In Sykes v Cleary the Court refused to order a re-count or a special count and instead declared the election void with the consequent result that a new election was held. In the circumstances of that case the Court considered that a special count could result in a distortion of voters' real intentions. That was a quotation from the judgment of Chief Justice Mason and Justices Toohey and McHugh and your Honour reminded me of that when the application was before you about the reference of Sykes v Cleary to the Full Court.

The reason was that because the voters' preference were expressed within a framework of a larger field of candidates presented to the voters by the reason of the inclusion of the first respondent. It was also the case in Sykes v Cleary that the first preference votes for disqualified candidates totalled over 95 per cent of the valid votes cast. In Sykes v Cleary the orders made represented the exercise of the Court's discretion under section 361 and 362. It is submitted that in the present case, a special count would give effect to the preferences of a majority of electors - I should add there, for a candidate capable of being elected - and would allow the election consequently not to wholly fail.

The special count would also allow a candidate to be chosen consistent with the express intention of the electors of Lindsay to elect a candidate capable of being chosen as at the date of the general election. It is also, from the point of view of the electors, the easiest, the cheapest and the most convenient course. It is also fair and just. A special count also avoids throwing away the costs, both to the community and to the participants in the election contest in Lindsay during the general election. The costs, in effect, double if a special election is held. As to those costs thrown away, the costs of the special election must also be added.

Your Honour, that is hundreds of thousands of dollars that are involved in public money as well as other moneys that would be spent in relation to Part XI of the Election Act on the candidates for the registered political parties. This is the third case in eight years to come before the Court in respect of section 44, disqualification of an elected candidate. The previous cases were In Re Wood and Sykes v Cleary. The first case concerns disqualification, on citizenship grounds, of a minor party senator. Sykes v Cleary involved disqualification of an independent for holding an office of profit under section 44.

The candidates of both the Liberal Party and the Labor Party were both disqualified as not having properly renounced foreign citizenship. In Sykes v Cleary, the Court gave a comprehensive analysis of section 44, disqualification on the grounds of holding an office of profit and failure to renounce foreign citizenship. The Commonwealth Parliament and all the political parties and everyone concerned with elections have been on notice since then about such disqualifications. Although the issues raised about section 44 have been the subject of public interest and debate Parliament has not proposed amendments to change section 44 as interpreted by this Court.

The major political parties with representation in the Commonwealth Parliament have a special position under the CEA. That is Part XI, your Honour - I think your Honour is aware of that - and draw public funding in support of their electoral activities and their candidates. The parties are also involved in the nominating process through section 167(3) of the CEA and section 170(2). A party's candidate, as well as all candidates, must observe section 162, 163 and 166.

Your Honour, I just draw your attention, in the annexures, to the agreed statement of facts just in relation to that. Your Honour will see, at annexure C, the nature of the nomination of the first respondent. It is by the registered officer of the Liberal Party in New South Wales, Mr Anthony Nutt It shows there the closeness between the arrangements of the political parties and the nomination process now, under this particular Act and, of course, there are arrangements whereby public funding is made available to the political parties for their campaigns in Lindsay and elsewhere.

Your Honour will find that this is a nomination pursuant to section 167(3):

A nomination of all of the candidates endorsed by a registered political party for election to the House of Representatives in respect of the Divisions situated in a particular State or Territory may be made by the registered officer of the party to the Australian Electoral Officer for that State or Territory.

Now, section 172 of the CEA does not provide the officer who receives a nomination with the power to reject a nomination form which formally complies with the requirements of the CEA. Section 166 Schedule 1 Form DA, and that is pointed out in In re Wood at pages 164 to 165. I do not read that quotation, I think the Court is probably familiar with that point. Under In re Wood, the interpretation of section 172 of the Act, your Honour, it is not read as providing the Australian Electoral Office with the power to reject a nomination that is formally in order.

Now, on behalf of the electors of Lindsay, he must rely on the candidate and the political party to ensure the accuracy of the candidate's declaration of qualification. In this case, the first respondent, a solicitor, has completely failed in respect of qualifying herself to stand for election, especially in respect of her resignation from RAAF prior to nomination.

HIS HONOUR: Is this directed to the question of costs or some other issue?

MR McCARTHY: No, your Honour, it goes to the wider public issue as to why it would be appropriate to order a recount. The second side of the submission in terms of the public interest is this, your Honour, that the purpose of the qualification provisions of the Act is about is to have a Parliament that complies with the Constitution, in terms of section 44, and to have appropriate qualifications for being elected. The purpose of those qualifications is to exclude persons other than those who so qualify from offering themselves to be chosen by the Australian people to be elected to Parliament.

It is inappropriate, in our submission, to allow a situation where the only consequence, especially in a context where a minority of first preference voters have voted for a candidate such as that, to have as the only consequence that there is a new election which that candidate can then contest; that what is more appropriate in cases where a majority may not have voted for a candidate who was disqualified, or voted, at least in terms of the first preferences in that way, is that there be a recount from which that candidate excluded. That is the public interest point that is made to support the question of the recount, your Honour.

I do not take it further than that, other than to also make this point: that if it is the case that a special count was ordered in which a candidate was excluded, it would be the last time, in my respectful submission, any order of that sort was ever made by this Court. The political parties would ensure that any candidates in future that they were standing qualified under section 44. This should not have come about, your Honour, after Sykes v Cleary. It is extraordinary that within three years these issues are back before the High Court of Australia sitting as the Court of Disputed Returns.

It is perhaps explicable in the Wills case that you could only see a distortion of voters' intentions with 95 per cent of the vote for disqualified candidates. To some extent it is extremely unfortunate that that particular fact situation was the one that emerged before the High Court first in looking at the possibilities of the preferential system.

It is the Court's approach not only to favour the franchise; not only to try and find a way under the system that a majority can be given expression to, but also to lean against completely finding an election totally void if it can be avoided. It is fearful to have to order that there be another by-election; to send the public in Lindsay and subventions on the taxpayers that are involved with bringing that about. There is an answer to that, and a principal answer is that candidates for the major political parties should be qualified. That is something that, again in terms of public interest, bears on why it is appropriate to have the count in that particular way. They are the submissions in favour of a special count. Thank you, your Honour.

HIS HONOUR: Thank you, Mr McCarthy. Mr Hughes.

MR HUGHES: May it please your Honour. It may be thought, and I submit, that the simplest answer to the arguments propounded by my learned friend is to turn to the decision of six of the Justices, including your Honour, who sat and decided Sykes v Cleary. The critical passage, from the perspective of the present case, in Sykes v Cleary starts at page 101 and goes over to the bottom of page 102. I do not want to read that unless your Honour would wish me to. Your Honour would be very familiar with it. Indeed, your Honour considered this passage on the earlier occasions when this matter has been before the Court.

The critical features that emerge from that passage are these. First of all, their Honours who subscribed to the joint judgment, distinguished Wood's Case on the basis that the result in Wood's Case of counting the votes of the disqualified candidate to the next candidate down the line was a procedure peculiarly applicable to Senate elections. The second critical feature of Sykes v Cleary is the proposition, which is of cardinal importance in the context of the present case, that if a special count could or, to use your Honour's verb this morning, might result in a distortion of the voters' real intentions, such a procedure is inappropriate and the only alternative and the proper procedure is to declare the election void with the result that the statutory procedures take over and there will be a by-election - declare the election, I should have said, absolutely void.

The third critical feature that emerges from this passage in Sykes v Cleary in the joint judgment, which was concurred in by your Honour and by the other Justices save Sir William Deane, is the comparison that is made, drawing from an argument submitted by Mr Rose for the Electoral Commission, of the procedures that are statutorily prescribed in the case of the death of a Senate candidate before the election, on the one hand, and the procedures prescribed in the case of the death of a candidate for election to the House of Representatives for an election. All the majority Justices, including your Honour because of your Honour's adoption of the joint judgments reasoning on this point, found that distinction as helpful in determining the outcome where there is a case of disqualification of a candidate for election to the House of Representatives.

We would submit that there is every reason consistently and in compliance with principle, and every reason on a practical level, for this Court continuing to subscribe to the train of reasoning expressed in Sykes v Cleary. To put not too fine a point upon it, your Honour would, I suggest, find that reasoning not only persuasive, but really binding.

Now, there is another approach that can be taken and this approach rests upon the provisions of section 274 of the Commonwealth Electoral Act, to which some attention has already been given this morning. What my learned friend propounds as the appropriate procedure in this case really involves a significant departure from the mode of counting prescribed by section 274(7)(d). What my learned friend says is that although the first respondent was the candidate who de facto received more primary votes than any other candidate, her preferences should be distributed first. Now that would seem to be, and there was a hint of this perhaps in something that your Honour tentatively said this morning in the course of discussion with my learned friend, that would be an odd result, taking the candidate who de facto had more votes than any other candidate and distributing the preferences of that candidate out.

That leads me to a submission, albeit it was not put in argument in Sykes v Cleary, at least so far as the report would indicate, that it is essential to, in the sense of a precondition to, the effective operation of section 274 that one has in any particular election for an electoral division of the House of Representatives a field of candidates, all of whom are qualified, or subject, to put it the other way, to no constitutional disqualification. If the field of candidates do not each individually possess that lack of disqualification, there is really no way in which that paragraph of section 274(7) can be worked. Certainly, what my learned friend propounds, as a way of working the paragraph, does not follow the terms of the paragraph.

HIS HONOUR: But does the order that was made in Re Wood follow the terms of the relevant paragraph of 273?

MR HUGHES: Maybe not, but what the court held in In Re Wood was that because of the radically different provisions relating to election for the Senate, some degree of adaptation was permissible and, of course, the critically different features of the Senate election, relevantly, were that there were group candidatures and there is for the Senate a system of proportional representation.

Now, the third approach, and this is perhaps an adaptation or an adoption of the principle propounded, as we have submitted in a binding way, in Sykes v Cleary, is to say this: the basic question always is to avoid any possible distortion resulting from the unfortunate event of the disqualification - any possible distortion of the electoral will. In that connection one bears in mind, I submit, section 364 of the Commonwealth Electoral Act which says:

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 -

that is an exemplification of the statutory intent that, in deciding these election petitions, one looks at the substance of the matter and the substance of the matter is that it is all about avoiding, in the case where disqualification has occurred, a distortion of the electoral will or the will of the majority.

Now, the South East Bristol Case, with which your Honour is familiar, provides a useful pointer in this connection. There, Mr Benn publicly proclaimed, so that the electors knew that he was a peer of the Realm, and publicly proclaimed his intention to establish that despite his peerage he could be elected to the House of Commons. So, it was public knowledge that here was a man, or a candidate, whose contention might prove ill-founded, wrong - the electors voted with their eyes open. Every elector who voted for Mr Benn - and I think there were only two candidates in the election - knew that if they threw away their vote because of the invalid assumption that they made or, rather, the invalid assumption that Mr Benn made, the other candidate would be elected in the context of a first-past-the-post system. That was a critical factor in the decision of the court.

Here, the position is radically different. The position in this case is that all the electors assumed, and properly assumed, that the first respondent was a qualified candidate. Those of the electors who voted for her obviously believed that she was, and proceeded upon the basis that she was, and proceeded on the basis that their first preferences would be valid. They were not. One asks the question, who can be satisfied, in the way the unfortunate events fell out, what the electors, who voted first choice, first preference for Ms Kelly, would have done, how they would have exercised their franchise, had they known that she was, in effect, a non candidate, had no title to be there?

One is left, in my respectful submission, when one addresses that question, purely in the realm of impermissible speculation. We would venture to say that in this case it could be said not only that the electoral will might have been distorted but, if anything, it probably was. Those are the several ways in which we would seek to address the arguments put by my learned friend. In the way the poll fell out, the majority intent was that the first respondent should win. That intention, the majority contention, miscarried for reasons for which the majority bore no responsibility, unlike South East Bristol, and the only way in which a satisfactory conclusion as to the majority intent can be established is a new election. In this connection, one does not leave out of a count the practical fact which is known to all citizens that electors vote for parties as well as for persons. Perhaps, depending upon the particular electorate and the particular candidate, the elector's choice is a combination of personal and party factors. In some cases one factor may predominate over the other, but it matters not. The electoral will is a will that is compounded of two elements: a party element and a personal element.

No one can say with any sense of assurance or confidence that the will of these electors would not be distorted by ordering a special count in the way that my learned friend says. In our submission, the appropriate orders are orders as amended during the course of discussion by my learned friend: order 1 as amended by the excision of the words, "after the year 1996"; orders 2 and 4. If those orders were made, as we understand the position - and I think everybody at the Bar table agrees - the statutory procedures will pick those orders up and a writ will be issued for a by-election. The question of costs, of course, is one that your Honour may think ought to be argued later, depending on the result, so I say nothing about costs at this stage. Those are the submissions that we would wish to put to your Honour.

HIS HONOUR: Thank you, Mr Hughes. Dr Kenny?

MS KENNY: Your Honour, I have little to add to Mr Hughes' submissions. It would be the submission of the second respondent that the orders which the Court should make should be made under section 360(1)(v) and (vii). In other words, it should be declared that the first respondent was not duly elected and that the election be declared void. The reason for that, of course, would lie in the nature of the declaration sought by the petitioner, that is that the first respondent was incapable of being chosen. The reason why the second respondent would support a declaration that the election be declared void is that set out in Sykes v Cleary which binds your Honour in this case, as your Honour has already noted on an earlier occasion.

As my learned friend, Mr Hughes, pointed out, there are really three reasons given in the joint judgment. The first lies in the fact that Re Wood can be put to one side. It concerned a Senate election and the quota preferential system of proportional representation. In the case of the House of Representatives one is dealing with an electoral system where absolute majority is chosen for a single member constituency and in that context a special count could, or might, distort the voters real intention. That is demonstrated, in my submission, not only through the provisions relating to death of candidate, which are noted in the decision in the joint judgment, but also when one turns to the provisions of section 274. In that context what the petitioner is really asking the Court to do is not apply the provisions of that section as they stand, but to apply them in a fashion that Parliament never intended.

That would have a particular vice in this circumstance because the person in this case, the first respondent, who one might notionally say had received nil votes, and that would be a notion which was in fact not built on reality, would then, as your Honour has noted, find that all her other preferences were counted in first ahead of those candidates who, in actual fact, had received the least number of votes. In that circumstance it cannot be said that a special count would not distort the intention of the voters. There are other elements which fortify that and that is the matter that it is the fact that the first respondent stood in the field of candidates which leads to a distortion in, or may lead to a distortion in votes, and the fact that the voters who voted understood or were under the misapprehension, it seems, that she was eligible to stand, which has led them to cast their votes in a particular fashion, and it cannot be assumed they would have passed in their votes in the same fashion had they known the true facts, and that is a fair assumption in the context of a party system under which we operate, in my submission.

There is then, if one starts with the proposition that Sykes v Cleary governs this position that it is founded on good logic and good reason, only two reasons why one might depart from it. The first would be, do the provisions of section 364 demand a contrary result? In my submission, they do not on this occasion demand a contrary result given that the logic and the reasoning lying behind Sykes v Cleary is equally applicable here as it was there. The second, which has been suggested by my learned friend, Mr McCarthy, is that there is a distinction based upon fact. In other words, whilst Sykes v Cleary stands to one side, this case is different, and he suggested that this case is different by reason of the fact that in Sykes v Cleary, a number of candidates were found to be disqualified, whereas only one candidate has been found to be disqualified here.

That, in my submission, is not a reason which would differentiate this case from Sykes v Cleary, because it is clear from the reasoning adopted by the Court in Sykes v Cleary that it is the failed election of a candidate who was ineligible to stand which leads to the distortion of the voters' intentions on a special count because one is looking at a single member constituency and one is trying to ascertain an absolute majority which returns that candidate. Providing that is the question, then the distortion must continue.

So that, in other words, there is nothing in the ratio of Sykes v Cleary which would cease to be applicable because of the fact that only one candidate here has been found to be disqualified. The important thing is that that is the candidate who is returned.

HIS HONOUR: Is this your proposition, Dr Kenny, that whenever there is a candidate who is not qualified to sit is elected and there is a petition which results in the avoidance of the election of that candidate, the necessary result is an order for a new election - - -

MS KENNY: Yes, it is, your Honour.

HIS HONOUR: - - - because the electoral will was to return that candidate.

MS KENNY: Precisely, your Honour.

HIS HONOUR: How does that square with In re Wood?

MS KENNY: In re Wood one is looking at a different electoral system. One is looking at a system where there is a system of group voting and it is acknowledged by Parliament that that group voting may occur. The Court then has taken into account that fact and taken into account the probability that a person who voted for Mr Wood would still have continued along the ticket, as it were, to vote for another member of that group. So the distortion does not take place.

When one is talking about an election where one is choosing one candidate and one candidate only, then one cannot rely upon the group voting system to take oneself out of that possibility of distortion. That factor alone would separate out a Senate election situation from a House of Representatives situation.

HIS HONOUR: In other words, in a Senate election, it is, to adopt Mr Hughes' proposition, "the party rather than the person"?

MS KENNY: As a general rule that would seem to be so. At least, Parliament seems to acknowledge that to be so when it allows for a group voting system which it does not allow in the case of representatives.

HIS HONOUR: Yes.

MS KENNY: The matter where the second respondent would part company with Mr Hughes' submission concerns the construction of section 274 and the question whether if any person stood who was ineligible, would that mean that there was necessarily a void election for a House of Representatives election? In that case, the question ought to be, in my submission: would the standing of an ineligible candidate have had the capacity to affect the election; might it have affected the election? If the answer is "no" because the candidate stood so low down amongst the preferences, then there would be no need to declare an election void.

The crucial fact in this case, and it is the only matter which this Court would have to consider, is the fact that the candidate who has been declared ineligible was the candidate who was returned by the electors. Your Honour, I do not think I can usefully anything further. That is, in substance, the submission of the second respondent.

HIS HONOUR: Thank you. Mr McCarthy.

MR McCARTHY: Your Honour, just on the last point that Dr Kenny raised, as I understood her submission, I think that is contrary, if I might say so with respect, to what the position is in In Re Wood in respect of what the High Court has said in relation to the point in Hickey v Tuxworth. I am understanding my friend to be saying that if a disqualified candidate was in the position, for instance in this seat, of John Wilson and it could be shown that his vote affected the result of the election, even though he was not elected himself, then that would be a matter to be brought to the Court of Disputed Returns. I only point out that if that is the substance of the submission, that is contrary to what the present position in - - -

HIS HONOUR: Yes, I think, as I understood Dr Kenny, she was suggesting that there may be some situations where it could be demonstrated there was a distortion of the electoral will by reason of this. Whether that is so or not does not seem to me to be a question that I need determine. In other words, whether the proposition in In Re Wood is to be regarded as an absolute one or not is something I do not really need to consider in this case.

MR McCARTHY: No. Your Honour, there are only two matters that I would wish to refer to. Annexure E makes clear to this Court that the electors, who voted for various candidates there, did so in a context where the votes can be counted out to the fourth and fifth distribution and that their preferences are given legal effect in those terms. It seems to me, and I would submit, your Honour, the question about what the distortion of the voters' intentions is wildly exaggerated in a situation where you can actually have a voting system that asks people what their alternative preferences are. There may be other reasons why a candidate may not be elected besides disqualification when, in Australia, we ask each of our electors, in a preferential voting system, to choose amongst the candidates what their order of preference of election would be. The assumption is, if the first candidate is not elected, who is the next candidate that you would choose.

Your Honour, it is not far to move from that on the ballot papers to a situation where one can say in that system that if you disqualified one of the candidates, that is a reason why they cannot go on in the count, who was the next vote that was chosen by those particular electors, without having to go and ask them again what is to be done. Your Honour, I put that in answer to the issue of what is binding on this Court. I would have thought all that was binding on this Court was the statute, the Constitution and the central principles of election law. If they are illustrated by Sykes v Cleary then that is binding on this Court.

What was looked for in Sykes v Cleary in relation to a proper approach, saw a distortion of voters' intentions in a given circumstance. As my learned friend, Mr Hughes, has rightly pointed out, your Honour is operating under section 364 of the Act, in the context of doing what is just and proper in this case. There are significant fact differences. There is one candidate, not three candidates who have been disqualified, in this case. Secondly, it is not a majority; it is a minority of the vote that has been involved, and thirdly, the context of the recognition of this comes in a double voting system.

Your Honour, my simple submission, in reply to what is put, is that the Australian people are expected, under our voting system, to express choices on their ballot paper, and they are given effect in circumstances when there are alternatives that are to be put if a candidate is eliminated. That confidence should be behind the Court accepting that we are only a minority of votes in the first part of this voting system is seen to be affected by a disqualification, what may elsewhere be on those ballot papers can be accepted. Your Honour, in terms of effect, that is definite; it is not speculative, it is in a context when they have been specifically asked, "What are your alternatives?" The history and tradition of those other decisions of the election being immediately declared void, is in the single voting system that was in the UK.

Your Honour, the alternative, in terms of our election system, is that even when only a minority of first preferences is being affected, it is a case that a special election is ordered here, and this may be the effect of election law, but I just say with respect, your Honour, we are, in effect, what was called in American law schools, in a per se situation. It will not matter any more. This becomes authority for the proposition that, regardless of section 364 or sections 360 or 361, regardless of where the person started in a count, if they are elected and are disqualified, it will automatically void the election.

Your Honour, I do not think that is the intent of the Act and I certainly do not think that is the intent of the Act in a context where we have preferential voting. It came from a context of a less sophisticated election system. We have much more here. If the preferences on ballot papers can be counted out in the way that occurs time in and time out in the Australian system where people are asked for their alternatives, the same can be done here. A practical alternative to the fearful cost and inconvenience of a by-election has been put forward. They are my submissions in reply, your Honour.

HIS HONOUR: Yes, thank you, Mr McCarthy. I will consider my decision in this matter. It would be obviously desirable that it should be given at the earliest opportunity, and the question will then arise inevitably as to what order should be made as to costs. Mr Hughes has suggested that the matter can be left over. That might involve inviting counsel to come back, and I would be anxious to avoid that if that were going to delay the announcing of a decision.

The hypotheses seem to me to be this - and counsel can correct me if I am wrong - it is clear that orders 1 and 2 sought in the petition must be made. The question then is whether order 3 or order 4 should be made. That has been the subject of debate here this morning. In the light of those circumstances, and those being the only hypotheses, is it not possible for counsel now to frame their submissions as to costs on those hypotheses?

MR HUGHES: Yes, your Honour. So far as we are concerned, yes.

HIS HONOUR: What do you say, Mr McCarthy?

MR McCARTHY: Yes, your Honour.

HIS HONOUR: Well, then, perhaps I should hear you first on what orders should be made. I mean, if you are successful all the way along the line, I take it, you would ask for the costs.

MR McCARTHY: I would, your Honour.

HIS HONOUR: If you were successful as to orders 1 and 2, which you will be, what do you say as to the costs in relation to possible failure on 3 and 4?

MR McCARTHY: Your Honour, I think they are associated with it. They were proper matters to be raised in relation to that, and they did - they are certainly issues that can be put forward. I would also say this, your Honour, in relation to those matters concerning all the parties, that - and I am not in a position to deal with this fully today, though it may be that arrangements can be made for this to be done fairly swiftly. Your Honour, I would submit that your Honour would also consider an order in this case under section 360(4), which is:

The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.

Your Honour, the context of that would be that the agitation of the issue in respect of a recount, or a new election, in the context of an electoral return which show the minority of first preference votes for the disqualified candidate was not inappropriate, regardless of how the Court approached the matter - that is, whether we were successful in relation to that argument or unsuccessful - that it was a matter to be raised, or is a matter that could be raised and ventilated, and that it fell within the costs section of the orders and judgment in Wood's Case, your Honour called a matter that was raised in the public benefit in the area of public administration.

So, your Honour, I would be submitting that in relation to issues concerning a re-count or a new election, that would be a matter that would be appropriate for an order under section 360(4) of the Act. In relation to the earlier orders, your Honour, we would seek an order against the first respondent, but otherwise I would have thought, your Honour, it would not be appropriate in relation to the last order that there be any order for costs against the petitioner at all in this matter on any of the issues.

HIS HONOUR: Yes. Mr Hughes?

MR HUGHES: For a State result for which we would contend, or that is appropriate, may I recount a little of the earlier history of this case, your Honour. There was never any defence raised in this petition save on the question of the outcome, the result, namely, whether there should be a special count or a by-election. I should amend to some extent what I have said in that regard. I was not here on the earlier occasions, 29 July and 2 August, when the matter was before your Honour. Reading the transcript of those occasions, the issue between the petitioner and the first respondent fined itself down to a question of remedy. That was the position that was reached on 2 August, if not perhaps on 29 July, but certainly by 2 August that was the remaining issue between the petitioner and the first respondent.

The Australian Electoral Office became a party on 29 July pursuant to its own perfectly proper application and your Honour granted the Commission leave to become a respondent. Now, being realistic, as one should try to be, I cannot say that - I could not say even in my wildest imagination that the situation that has developed here is the fault of the Electoral Office. That is a factor against ordering the Electoral Commission to pay costs.

On the other hand, the Electoral Commission joined the case of its own motion. Again, being realistic, it is not altogether easy to see, I must concede, indeed it is difficult to see, how the first respondent in the particular circumstances of this case can resist an order that some of the petitioner's costs be paid by her. But I would submit that the petitioner's entitlement to costs against the first respondent, if your Honour sees fit to make an order that she pay some costs, ends at the point of time at which it became clear that the only issue in the case was remedy. That entitlement ends, therefore, at the close of business on 2 August, unless the petitioner is wholly successful; in other words, successful in obtaining a special count as opposed to a by-election. My junior says that the effective date for a close off, as it were, of any entitlement on the part of the petitioner's cost is 29 July because the battle line then became clearly drawn that it was only a matter of remedy.

HIS HONOUR: I am not sure that is right, if one looks at the submissions on 2 August where there is an invitation to reconsider the question in Sykes v Cleary as to whether the nomination date is the relevant one.

MR HUGHES: I am constrained to say that is probably the outcome of what occurred. So, 2 August. If, therefore, the first respondent is successful in her resistance to the remedy of a special count, my submission is that she should have her costs of today - the argument today - and that those costs should be set off against any costs to which the petitioner is entitled as a result of the proceedings up to but not including today.

BRENNAN CJ: Yes.

MR HUGHES: So far as the Electoral Commission is concerned, our position is simply this, that the Electoral Commission, properly, but not necessarily, became a party to a case in which no imputation of fault on its part could conceivably be made by anyone - certainly not by the first respondent; certainly not by the petitioner. In those circumstances, the appropriate outcome, I suggest, is that the Electoral Commission should be, throughout the case, at its own risk as to costs and that my client should not be required to pay any costs of the Electoral Commission, whatever the ultimate decision in the case is on remedy. As far as I can see, your Honour, and I am sure I will be properly corrected if I have not covered all the contingencies, those are our submissions.

HIS HONOUR: Thank you, Mr Hughes. Ms Kenny.

MS KENNY: Your Honour, my first submission is that neither the second respondent nor the Commonwealth should have an order for costs made against them in any event. I make that submission because there has been no error or fault on the part of the Commission as an agency of the Commonwealth, there has been no matter of special public benefit agitated in this proceeding and, even if one goes more broadly than that, there is no question of general fairness which should warrant the second respondent or the Commonwealth bearing costs. I would refer your Honour to the judgment in Nile v Wood [No 2] [1988] HCA 30; 167 CLR 133 and in particular to your Honour's own judgment at page 142.

HIS HONOUR: It was dissenting, was it not?

MS KENNY: Yes, your Honour. I was about to refer your Honour also to the judgment of Justices Deane and Toohey at page 143. The broader view put by their Honours in Nile v Wood has been adopted more recently by her Honour Justice Gaudron on two occasions: first of all in the decision of Hudson v Lee [No 2] 177 CLR. At page 633 her Honour expressed a preference for the broader view of Justices Toohey and Deane, and more recently in an unreported decision of Webster v Deahm, her Honour reiterated that view. I have given a copy of her Honour's judgment to my learned friends. May I pass one up to your Honour.

HIS HONOUR: Yes, please.

MS KENNY: Your Honour, I determined to commence with your Honour's own expression of principle in Nile v Wood, that is that there was no error and there was no public benefit interest, and then to go to the broader issues of fairness, because the broader issues of fairness referred to by her Honour Justice Gaudron in the Hudson v Lee Case involved considerations of the status of the petitioner as an invalid pensioner. This case, of course, is a long way away from that. In the Nile v Wood Case the matter which separated your Honour from the other two members of the Court would seem to have been the fact that it was found that Mr Wood, after the close of proceedings, had been ineligible, so that despite the fact the petition failed in the original proceeding for formal reasons, following the reference by the Senate to the Court it was established that Mr Wood was ineligible, so that there was, if you like, some substantive right at the bottom of the application brought by Mrs Nile. That seems to be reflected at 167 CLR 143 where their Honours Justices Deane and Toohey pointed out that it was now known that Mr Wood was not qualified to be elected as a senator, so there was an element of public benefit in their Honour's view.

In the Hudson v Lee Case, the particular matter noted by her Honour was that, on page 167 CLR 633, the petitioner was an invalid pensioner, and the fact that in the particular circumstances of that case it was not appropriate that the respondent should meet the costs of a petitioner, and that appears in her Honour's judgment at page 634. Her Honour expessed the view that where allegations of a personal nature were raised, there were reasons why the first respondent would not wish this case - the person whose election was challenged - would not wish to seek an order for costs against a pensioner in his electorate.

In the later case of Webster v Deahm her Honour was also asked to make an order for costs in this case against the Commonwealth under section 360(4) and her Honour declined to do so, notwithstanding the fact that the Commission, although without blame, had contributed in a non-blameworthy sense to the situation which arose and that appears, if I might take your Honour to her Honour's judgement at page 2 of the unreported decision. Her Honour said:

The Petitioner challenged the election of the first respondent on various grounds, the central allegations being that there had been instances of multiple voting and voting by non-existent persons. The allegations of multiple voting were based on markings on the list which suggested that persons may have voted more than once. The allegations of personation were based on the proposition that persons who no longer lived at the addresses shown on the electoral roll voted in the election.

Then her Honour goes on on page 3 to say at the middle of that page:

There is no reason, in my view, why, as between the Petitioner and the first respondent, costs should not follow the event. There is, however, some substance in the submission that, given the narrow margin by which the Petitioner was elected, the errors made by the servants or agents of the Commissioner in the marking of the lists were of some significance in his decision to bring these proceedings. They were matters which necessarily had to be investigated and answered for by the Commissioner. In the circumstances, he should bear his own costs of these proceedings.

Then her Honour went on to continue whether an order should be made against the Commonwealth and she refers to the judgments in Nile v Wood and on page 4 in the last paragraph her Honour said:

Notwithstanding my preference for the wider view of s 360(4) of the Act, there is nothing, in my view, to justify an order against the Commonwealth. There is nothing to suggest that the errors in the marking of the lists exceeded normal limits or were different in nature or degree from those ordinarily to be expected in an election. Nor is there anything to suggest that such inaccuracies as there were with respect to the addresses of voters were other than what might be expected as a result of ordinary population movement. The fact that there were errors and discrepancies is sufficient, in the circumstances, to require the Commissioner to bear his own costs. However, in my view, it does not justify an order for costs against the Commonwealth.

So, in effect, her Honour was saying in that case that the Commissioner had been required to answer allegations brought by the petitioner but had, at the end of the day, not done anything which would have justified an order for costs. This case is one step below that. Not only has neither the Commonwealth nor the Commission done anything which would justify an order for costs being made against them, they have done nothing to participate in circumstances which have led to the first respondent being declared ineligible.

So, that would lead me to my second submission, your Honour, and that is not only that there should be no costs awarded against the Commission or the Commonwealth but that I would make an application for costs against the petitioner in the event that it should fail and against the first respondent up until 2 August and I make the distinction in this way: until 2 August, the first respondent did not concede that the appropriate form of relief was that of a declaration that the election be declared void. That proposition was put by the Electoral Commission and until that point, in my submission, the Electoral Commission should have the benefit of costs.

It is only from today's date that the first respondent and the Commissioner are ad idem in the submissions they make. It would be appropriate that the first respondent bear those costs because any deficiency in the election has been due to the first respondent's conduct and not to any conduct of the Electoral Commission and in the event that the petitioner fails on his substantive argument in relation to relief, then so he too should bear the costs of the petition. So what I would ask your Honour to do would be to apportion costs as between the first respondent and the petitioner in relation to the Commission.

HIS HONOUR: Why did the Commission intervene?

MS KENNY: Your Honour, on the first day, I indicated to your Honour that the Commission would intervene to place before the Court those facts which were requisite and that, in fact, the Commission has done and it has led to the agreed statement of facts. So that to that extent, the Commission's participation was necessary. I also indicated to the Court on that day that the Commission would make whatever submissions it believed might assist the Court in relation to this matter and the submissions which it has made, which it is hoped would assist the Court, have been the submissions on relief which, until today, it was the only party really to have been putting before your Honour in relation to the declaration of the election as void.

So that there are two contributions made by the Commission. One has been on factual nature and the other has been in relation to the submission that the election should be declared void.

HIS HONOUR: It does raise a general question though, does it not? The Commission has general administration of the Act. Should appearances by way of intervention in election petitions be regarded simply as part of the function of the Commission, the expense of which ought to be borne by the public purse as part of the general electoral expenses of the nation?

MS KENNY: Your Honour, in my submission, one answer to that may be found in the fact that once the Court has given leave for the Commission to appear it becomes a party and it, therefore, has all the rights and the liabilities of any party to the proceeding. So that in that event, if it were unsuccessful, then it would incur a liability of some kind for costs. If it were successful and was not a contributing factor in the reason for the election's failure or in prolonging the argument concerning the election, then it should, too, be entitled to some indemnity by way of costs.

HIS HONOUR: Yes. What I am putting to you is this. Where the intervention is for the purpose of essentially being in the nature of a counsel assisting, that is one thing. The other is where the Commission intervenes either to defend its own conduct or to take a partisan stance in relation to the issues joined between the other parties - and by a partisan stance I do not mean by way of assisting on the proper interpretation of the Act but by adopting some view which is favourable to one as against the other - then one can see that there are two different situations, and my question really is directed to the first situation which I apprehend to be the position that you have adopted in the course of these proceedings. Why should that not be regarded simply as part of the valuable but, nonetheless, public service which is performed by the Commission?

MS KENNY: For two reasons, your Honour. The first would be that Parliament has not described the Commission as an intervener without the status of a party, when it allows the Commission to make application and to be joined to the proceeding. So that would, prima facie, indicate that Parliament intends that the Commission should be treated as any other party to a proceeding, even where the role of the Commission is, in substance, to assist the Court and not to join in in any partisan sense in the proceeding.

The second element is that, in any event, the public purse is at risk and has been put at risk by the first respondent and by her failure to sufficiently ensure that she was eligible for election at the relevant time. That is not a matter which the Divisional Returning Officer could consider and, in that event, the first respondent should bear some of the responsibility for the cost which the public purse has incurred as a result of her action.

In relation to other matters which are very much a matter in the discretion of the Court, it would, in my submission, be appropriate for the Court to consider whether the proceedings were unduly prolonged by the approach taken by the petitioner. In my submission, if, as I have submitted, Sykes v Cleary really govern the question of relief on this occasion, then the petitioner has unnecessarily prolonged the determination of the matter.

HIS HONOUR: It would be difficult to say that it was prolonged by more than a few hours when this was the only occasion when there has been a trial of the petition.

MS KENNY: Your Honour, in my submission, we are one set of proceedings too many by reason of the conduct of the parties. It was clear upon the first day that the petition would be brought upon a particular basis and was not actively to be opposed by the first respondent. At that point it would have been possible to have order the trial of the petition on an earlier occasion, upon 2 August. It was really the petitioner's attempt to persuade your Honour to refer the matter to the Full Court, that is, to refer the question of whether or not Sykes v Cleary stood to the Full Court, which has led to one extra leg in this particular proceeding, and that was assisted, of course, by the first respondent's conduct as well. Those are my submissions, your Honour.

HIS HONOUR: Thank you, Dr Kenny. Mr Hughes, do you have anything to say in response to Dr Kenny's submissions, first of all, so far as they apply for an order for costs against your client?

MR HUGHES: In essence, I have said what I want to say, save this: it is appropriate that the Commission bear its own costs because, as your Honour tentatively suggested, it has come here at its own choice to further its general administration of the Act. One asks the question, in this connection, would the result have been any different if the Commission had been absent? The parties themselves have presented the arguments, and I say that out of no disrespect to the argument put by my learned friend on my right, but if the Commission could look at the converse case, had put the argument and lost, it could hardly be suggested - that is the argument on remedy, your Honour - in all fairness that it should be required to pay anyone's costs. So I am really putting the proposition that sauce for the goose is sauce for the gander. That is the only argument I want to make to my learned friend, Ms Kenny.

HIS HONOUR: Yes, thank you, Mr Hughes. Mr McCarthy, do you have anything to say about Dr Kenny's submissions?

MR McCARTHY: At least three points, your Honour.

HIS HONOUR: Yes.

MR McCARTHY: Firstly, your Honour, it is just simply mistaken to put a submission that the petitioner did not seek an order declaring the first respondent not elected. That was the position in the petition. It was the position on 29 July, and it was the position on 4 August. There was no special role over orders that have been maintained by the Electoral Commissioner in relation to the central order in this matter that was sought by the petitioner, and to come along and say that they have made some contribution in this matter that requires the petitioner to pay their costs is just simple cheek.

HIS HONOUR: There is a question of the contest that was joined between you today as to the appropriate relief that should be granted.

MR McCARTHY: No, but in relation to the fact that the order - that a part of the reason why they wanted to be here was over the order, that they were the two people who were maintaining that the first respondent not be declared elected is just simply wrong, your Honour.

HIS HONOUR: I did not understand that to be the basis of her application as against you.

MR McCARTHY: Your Honour, in relation to the position of the AEC in the proceedings, that seems to be one of the reasons that they were here. As Mr Hughes has well put, the parties were able to adequately deal with any of the issues without the AEC being here. One can imagine a situation where the documents were brought on the first occasion and thereafter the matter was left to the parties. Your Honour, the petitioner would resist any order being made against the petitioner for intervention in this matter by the AEC. To the public points or perspectives that your Honour raised, and which I adopt, I would also say this: that this would probably be close to the last occasion that any party will have the AEC intervene without an immediate application being made that the AEC pay their own costs if they intend to intervene in any proceedings. It would seem to me to be a classic limitation on the role of a public authority to take that particular approach.

Thirdly, in relation to the costs orders, as I would understand the position put by the AEC, if the petitioner is successful in relation to this argument over the proper relief, as I would understand it, and I note that my friend put submissions on both behalf of the AEC and the Commonwealth in this regard that, obviously, that argument would have to be regarded as it being, as your Honour described it, something that was in the public benefit in terms of the elaboration of the electoral law and, therefore, it would be appropriate for an order that the parties have their costs against the Commonwealth in that respect.

MR McCARTHY: That is one aspect of an order for costs. The wider aspects of the order for costs against the Commonwealth have been considered by Justices Deane and Toohey in Nile v Wood as being what is right and appropriate, and would obviously seem to be wider grounds than just the public benefit point that your Honour raised in that matter.

Nothing has detracted from that wide definition by anything that has been said by Justice Gaudron in those later cases. They were matters in which I made submissions in relation to costs and the thing about Webster v Deahm that was the difficulty was that the petitioner - that is Mr Webster - had some difficulty establishing that anything he was doing met any type of public benefit test in what was being raised. Your Honour, it is the case that one does not have to be successful on a point for section 360(4) to come into operation.

In relation to the order today, it had been identified to you on 2 August that there was an appropriate way in which the principles in Sykes v Cleary could be considered in their application to this case. I would submit that the arguments that were presented to you this morning by the petitioner were not inappropriate towards determination of those issues, and were matters that I would submit require some consideration and certainly are put on the basis as being appropriate for an order under section 364 of what are just circumstances. In other words, your Honour, just because one may not be successful does not mean that there has not been a ventilation of these issues. It is the case that your Honour will have to express views about what, in actual fact, voters real intentions might be, about what is the situation when it is a minority that have voted - a minority of first preference voters that have voted for a disqualified candidate; of why is it that there is not scope in the Electoral Act, if it is the case, for orders of that sort to be made.

In other words, your Honour, what your Honour envisaged as being appropriate for a trial in this matter has come to pass, and has come to pass fairly efficiently in those terms. Now, your Honour, not only has the petitioner succeeded, or will succeed in relation to the principal orders that are to be made, but issues have been raised about electoral law and public administration that have been important. Those are matters that this Court has recognised, through the application of the Act, as being matters the Commonwealth should be ordered to meet the costs of the parties in.

It is at least the public benefit that your Honour has described in Re Nile and would be just in the circumstances where the argument as been appropriately put. It has not been Mr Hughes' submission, as I understand it, that there are not matters there for your Honour to consider over this and, indeed, ultimately he supported the submission that the Commonwealth should pay the costs in relation to today. So, your Honour, we would support the Commonwealth paying the costs of the parties in relation to the proceedings today, regardless of whether an order is made or not. And, in relation to the proceedings earlier, your Honour, as they were tied so closely to the matters of the principal relief, the declaration against the first respondent, that the petitioner have the costs against the first respondent. I do not seek any order for costs against the AEC. As your Honour pleases.

HIS HONOUR: Yes, thank you, Mr McCarthy.

MS KENNY: Your Honour, there is just one matter I feel I should raise and that is I announced my appearance at all times for the Electoral Commission. I have not announced an appearance for the Commonwealth. I am not in a position to do so at this point. If there were to be any order for costs against the Commonwealth, it would have to be appropriately represented upon that matter. I know this is an awkward matter to raise at this point, but it concerns me that we should not proceed - - -

HIS HONOUR: Yes, I wondered. I assumed that you must have had instructions from the Commonwealth as well.

MS KENNY: In fact, that had been my understanding too, your Honour. But I am in the awkward position of not quite knowing whether I do have those instructions.

HIS HONOUR: Yes, I see.

MS KENNY: It may be that it will be clarified in a moment, but at this point I would like to say that I think the matter should be on the record.

HIS HONOUR: It seems that some clarification may be taking place at the moment.

MS KENNY: Your Honour, I cannot confirm that I have those instructions. The matter therefore would seem, at least so far as the Commonwealth is concerned, to be appropriately placed to one side until it can be clarified. I apologise I cannot assist further.

HIS HONOUR: This will be a matter, I think, for all parties to consider but it occurs to me that if it is a question of ascertaining whether the submissions that you have made ostensibly for the Commonwealth are ratified by the Commonwealth, any ratification could be notified in writing and in a short space of time. If, on the other hand, the Commonwealth wished to be heard on any question of costs, that also could be notified in writing but, again, within a short space of time.

MS KENNY: I think, your Honour, that is the most practical solution to it and I would think to be able to indicate that a letter would be sent to the Registry to confirm that position.

HIS HONOUR: First of all I will ask counsel for the other parties. Would that be agreeable to counsel for the petition of the respondent? In other words, if the submissions that have in fact been made by Dr Kenny were adopted by the Commonwealth as theirs, then I could proceed to judgment making whatever order might be appropriate. If, on the other hand, the Commonwealth seeks to be separately represented and to make fresh representations, then if there was any question of making an order against the Commonwealth, that could not be made until the Commonwealth was given an opportunity to be heard.

MR HUGHES: That must be so, with respect. Maybe if my learned friend, Ms Kenny's exercise of apparent authority proves to be unjustified by events, perhaps the Commonwealth could put its submissions in writing to save further costs but that is only a tentative suggestion that I make.

HIS HONOUR: Yes. What do you say, Mr McCarthy?

MR McCARTHY: Your Honour, I have no objection to that cause of action, but I am just wondering if it is only a short period of time involved whether some adjournment till this afternoon could be appropriate, subject obviously to the convenience of the Court. In other words, if it was the case, your Honour, that the Commonwealth submissions, if they had wanted to make submissions, could be made today, it obviously would be in every one's interests, and I would have thought in the Court's interests, to have those submissions made today, and if an indication of that can be given very rapidly then that would also seem to be appropriate. Otherwise, your Honour, I would be content with what your Honour has proposed. But if it is only a matter of minutes away, to know what the Commonwealth's position is, it would - - -

HIS HONOUR: It may be a question, if the Commonwealth wishes to be separately represented, for counsel for the Commonwealth to get across the matters that have been discussed. It might take a little time.

MR McCARTHY: If that was in actual fact what was proposed. I suppose, your Honour, what I had envisaged was that perhaps what was already said by Dr Kenny would be confirmed and perhaps there may be some other points that the Commonwealth may wish to have made.

HIS HONOUR: Why do we not leave it on this basis? That if it can be confirmed that Dr Kenny's submissions are adopted by the Commonwealth, well and good. If not, then the question of making any order for costs against the Commonwealth can stand over until judgment is given.

MR McCARTHY: Yes.

HIS HONOUR: Is there any difficulty about that?

MR McCARTHY: I am content with that.

MR HUGHES: No difficulty, your Honour.

MS KENNY: There is no difficulty I can foresee either, your Honour, with that course.

HIS HONOUR: Then perhaps you might do whatever lies within your power, Dr Kenny, to see whether it can be ascertained at the earliest possible moment whether your submissions have been adopted by the Commonwealth and whether, retrospectively, your authority is thus extended.

MS KENNY: I shall make every endeavour, your Honour. I understand it can be done relatively quickly, but I will not - - -

HIS HONOUR: Yes, and you might notify the other parties at the same time and the Registry.

MS KENNY: Thank you, your Honour, and I apologise for that.

HIS HONOUR: Very well. I will consider my decision in this matter and the Court of Disputed Returns will adjourn to a date to be fixed.

AT 1.04 PM THE MATTER WAS ADJOURNED