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High Court of Australia Transcripts |
Office of the Registry
Sydney No S179 of 1998
B e t w e e n -
HENRY (NAI LEUNG) SUE
Petitioner
and
HEATHER HILL
First Respondent
THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent
Office of the Registry
Brisbane No B49 of 1998
B e t w e e n -
TERRY PATRICK SHARPLES
Petitioner
and
HEATHER HILL
First Respondent
THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent
Cases stated
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 12 MAY 1999, AT 10.19 AM
(Continued from 11/5/99)
Copyright in the High Court of Australia
MR BENNETT: There are a number of matters I was asked about yesterday, your Honours. I was asked about section 59 of the Constitution. This is something which it is not necessary to decide for the purposes of this case. There are two available views, we would submit, on section 59. The first available view is that the section is spent, that its purpose at the time was to maintain a degree of control in London. That purpose, in the light of the constitutional developments since then, is spent.
KIRBY J: Just like the residual appeals under section 74 to the Privy Council.
MR BENNETT: Precisely, your Honour; that is the analogy I was about to refer to. That is the first view. The alternative view is that, by the process I have described, the section now refers to the Queen on the advice of her Australian advisers, which would have the consequence that it would be open to the Queen's Australian advisers to invoke section 59. That is an alternative view. It is not necessary for your Honours to decide between those views in this case.
The Royal Style and Titles Act 1975 your Honours asked me about is an Act that was reserved for the royal approval. It is an Act passed in 1973 and we would submit it is simply part of the process of a recognition of the role of the Queen in relation to Australia; that role being now reflected in a separate Royal Style and Titles Act.
GAUDRON J: Under what head of legislative power was that enacted?
MR BENNETT: I suppose 51(xxxix), your Honour. It is incidental to the nationhood power.
GAUDRON J: The nationhood power is implied. There is no 51(xl), is there?
MR BENNETT: No, your Honour, there is not.
GAUDRON J: Which states nationhood.
MR BENNETT: It has certainly been assumed that there is an implied power in relation to matters such as the flag, the name of the country, matters of that sort.
KIRBY J: The flag, I suppose.
GAUDRON J: Does 51(xxxix) take you the distance? It is either under the implied nationhood power or it is not, is it not?
MR BENNETT: Yes. Your Honour, section 51(xxxix) can be read, I suppose, as "any power" as including any or all powers.
GUMMOW J: There is the Flags Act, too.
MR BENNETT: Yes. One gets it with national anthems, with flags, with all that area of government. It may be the external affairs to some extent because it is concerned with Australia's position in relation to other countries.
CALLINAN J: Justice Hayne touched on that Act in paragraph [20] of Joosse. Have you seen that?
MR BENNETT: Yes. Justice Hayne's judgment in Joosse, together with cases such as Nolan and the various statements by Justice Jacobs in Western Australia v The Commonwealth, all deal in general terms with this gradual transition.
GAUDRON J: You are not suggesting that by the Royal Style and Titles Act Her Majesty was naturalised, are you?
MR BENNETT: No, your Honour.
CALLINAN J: His Honour did not think that it affected any fundamental constitutional change at any time?
MR BENNETT: No, it recognised a change rather than created one, your Honour.
CALLINAN J: I do not know, his Honour does not go as far as that, I do not think.
MR BENNETT: But his Honour did not need to in that case.
CALLINAN J: No, but his Honour is discussing it generally.
MR BENNETT: Yes.
CALLINAN J: You say it is part of the process, do you?
MR BENNETT: It is a recognition of the continuing process.
CALLINAN J: A recognition of the continuing process?
MR BENNETT: Yes, your Honour. It is a recognition - - -
CALLINAN J: What, you recognise each step, do you, and at some stage you can say "I now recognise and acknowledge that the process is complete"? Is that what you are saying?
MR BENNETT: Yes, your Honour. That is done by the Australia Act. That is what has been said in this Court on prior occasions and, in our respectful submission, reflects reality.
CALLINAN J: What, that that Act is a recognition of some step or part of the process?
MR BENNETT: No, not that, your Honour, but certainly there has been such a process and I put that Act as a recognition of part of it.
KIRBY J: It is more in the nature of evidence or an indication that the process is going on, has been going on, and will continue to go on. It is a matter of the evolution of the nation which the Constitution must serve.
MR BENNETT: And your Honour, I suppose it is an acknowledgment, not only by the Australian Parliament, but also by the Queen herself, in that sense.
KIRBY J: No doubt that was why it was reserved for Her Majesty's pleasure, which she signified.
MR BENNETT: Yes. There is an earlier - - -
GUMMOW J: But it could only be upon advice.
MR BENNETT: Yes, your Honour, and - - -
KIRBY J: This was an Australian Act and, presumably, the advice would have come from Australian Ministers.
MR BENNETT: Presumably so, your Honour, yes.
GUMMOW J: Wait a minute. How does section 58 work in this situation in relation to the Royal Style and Titles Act? Presumably the Governor-General reserved the law. Is that how it would have happened? On what advice would the Governor-General have reserved it?
MR BENNETT: The Governor-General decides on the advice of his Australian Ministers whether he assents in the Queen's name, withholds assent or reserves the law for the Queen's pleasure.
GUMMOW J: Yes.
MR BENNETT: If he reserves it for the Queen's pleasure, then - - -
GAUDRON J: Which it was.
MR BENNETT: - - - which it was - then under section 60 there is a procedure to be gone through, but it would be her pleasure, we would submit - - -
GUMMOW J: On someone's advice.
MR BENNETT: On someone's advice, on the Australian Minister's advice.
GUMMOW J: Yes, it seems an elaborate dance, really.
KIRBY J: I think that there have been some historical revelations that Her Majesty would have preferred to retain her title of Defender of the Faith, which I think I have read she regarded as important to her, but she took the advice of her Australian Ministers and it was deleted from the Royal Style and Titles for Australia, and it is no longer there by the Queen's pleasure and on the advice of her Australian Ministers.
MR BENNETT: Yes.
CALLINAN J: Mr Bennett, any of these steps, if I can call them that, in the evolutionary process, if they all work together to produce the change that you say has occurred, one would feel much more comfortable about them if any of them or all of them had been submitted to the people pursuant to 128. It is almost a contradiction in terms, is it not, to say that they have effected a constitutional change when there has been no referendum in respect of them?
MR BENNETT: It is not a constitutional - - -
CALLINAN J: But it is inescapably a constitutional change, is it not, if it changes the status or the relationship of the Queen, as that appears from the Constitution itself?
MR BENNETT: Well, your Honour, section 128 only applies to amendments, as such, to the text of the Constitution. It does not apply to matters such as the interpretation of the Constitution by this Court - - -
CALLINAN J: But we have implications in the Constitution now. You will not find them in the text of the Constitution.
MR BENNETT: No, your Honour, and - - -
CALLINAN J: How do you change them?
MR BENNETT: Well, your Honour, there are various ways. It depends on the particular implication. One is, to a large extent, what this Court holds the implication to be. If one takes a different view, as this Court has taken on section 92, for instance, that is done without a referendum under section 128.
CALLINAN J: How do the people change? Say that people are not satisfied with the implication that this Court has inferred?
MR BENNETT: They can do a number of things. They can elect a different government which can itself propose constitutional change or argue in this Court for a different view.
CALLINAN J: But ultimately there would have to be a referendum, would there not? It may be a problem about implications, Mr Bennett; it might not even be the time to debate them.
KIRBY J: If a government does not approve of a decision of this Court, it can move the people under section 128. A Bill can go through the Parliament - that happened after the Communist Party Case in 1951 and people decided not to change the Constitution. It is always open to the Parliament to make a proposal and put it to the people to overrule a decision of the Court on the Constitution.
MR BENNETT: That is what I was putting as the answer. But one does not need to answer these questions in this case, I do stress this.
CALLINAN J: But something that is said, or may be said, in this case may have implications for those matters.
MR BENNETT: It may, your Honour, and we would hope that they would not go beyond what is necessary for the case.
GLEESON CJ: Mr Solicitor, there was some discussion yesterday about section 34.
MR BENNETT: Yes, I am going to come to that, your Honour.
GLEESON CJ: I wanted to ask you a question about that that is not related to what was said yesterday. Section 34, on its face, treats members of Parliament as male.
MR BENNETT: Yes.
GLEESON CJ: What is it that produces the consequence that references to the masculine gender in the Australian Constitution include references to the feminine?
MR BENNETT: Your Honour, there was a provision, I think I am correct in saying, in the Imperial and British Interpretation Act 1887, I think it is.
GLEESON CJ: You mean it is a law of the foreign country that produces that result?
GAUDRON J: Alternatively, it may have been that until the Parliament otherwise provided in 1904, or whenever it was, that they were male.
MR BENNETT: It was certainly accepted as a matter of common law and English language, at the time, that references to the male gender included the female gender, except where the contrary appeared by implication and all the cases which said women could not become lawyers and women could not become members of Parliament and so on in the last century were - - -
GAUDRON J: In this century, too.
MR BENNETT: And, some in this century were based on what was thought to be an implication to the contrary. So, the starting point would have been when construing legislation that "he" included "she"; male references included female references. That would follow independently of the Imperial Interpretation Act. It would arise simply from the normal English way, as at 1900, of using male gender - - -
GAUDRON J: They did not even have to be that creative. The word in question, at least in Australia, was "person". A person was held not to include a female, in those cases.
MR BENNETT: Yes, that is so.
GLEESON CJ: It would be a slight embarrassment for your argument, would it not, if that interpretation of the Constitution depends upon a British statute?
MR BENNETT: It does not depend on it, your Honour, and in a sense it would not matter if it did, because historically that is what the Constitution was and minutiae-like, whether one looks as headings, whether one looks at footnotes, whether one gender includes another, whether the singular includes the plural, and so on, are matters of statutory interpretation, as to which it would be relevant to look at grammar at the time, if necessary, to construe a section. One would not apply a modern rule of grammar that was inconsistent with the rule of grammar at the time to produce a different meaning, but that is a different process to the process that is being discussed in this case.
KIRBY J: Counsel for the petitioner yesterday said that the Constitution was an Imperial Act and was to be interpreted by reference to the United Kingdom Acts Interpretation Act, or whatever its equivalent was. Do you accept that? I thought that there had been some decisions of the Court in recent times that had said that is its origin, but its character now must be regarded as the Constitution of the Australian people.
MR BENNETT: There is no doubt of that, your Honour, and I was not asserting the proposition that the Imperial Interpretation Act applied to it; I was simply saying that the question whether it does or does not is a very different question to that involved in this case and involves, really, principles of legal interpretation and one might look at it in the same way one looked at rules of grammar as at 1900. It would be relevant, for example, to produce a book by a professor of English at 1900 which said that, as a matter of English, "he" is frequently used to mean he or she. Now, a book saying that would no doubt have some relevance in construing the Constitution, but, your Honour - - -
KIRBY J: That is one view. The other view is that you just look at the Constitution with today's eyes and see in it the wisdom with which it speaks to the Australian people - made by Australian people, voted on by them at referendum, presented, interpreted by Australian judges and amendable only by the will of the Australian people. It is an Australian Constitution.
MR BENNETT: What I am saying, your Honour, is there is a difference between the wisdom of the Constitution, on the one hand - if one were to use that phrase - and, on the other hand, grammatical matters, matters such as whether you look at headnote, side notes, commas, pronouns and so on; they are different questions.
KIRBY J: Whilst you are looking at section 34, do you remember yesterday Mr Finch conceded that the words "until the Parliament otherwise provides" means provides from time to time. Now, there are a number of provisions in the Constitution about that provision. What is your submission in relation to that phrase? Does it mean once Parliament has provided, that is it, and then the parliamentary provision governs it, or is it from time to time, as was submitted yesterday?
MR BENNETT: One has to look at each provision separately, your Honour, and I will have some specific submissions about section 34 in a few moments. If I could defer answering that question.
KIRBY J: Very well, you take your own time.
MR BENNETT: Your Honours, in relation to the question I was asked about "adult" in section 41, may I simply remind your Honours of the view taken of King's Case by this Court in Reg v Pearson Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254. I will not take your Honours to it.
GUMMOW J: It really was spent.
MR BENNETT: Yes, it was a transitional provision which was spent, and that is one which does not even have those words in it. As I say, it may be the case that section 59 is in the same category.
Your Honour Justice McHugh asked my learned friend yesterday about the situation of citizens of other colonies in 1900. It was certainly accepted at the time of the Constitution that a Canadian, for example, or a subject of the Queen from another dominion, was treated as a subject of the Queen for the purposes of the Constitution and indeed King O'Malley, who was a member of the Australian Parliament for many years, including the first Parliament, justified it by claiming to have been born in Canada - there was always some controversy whether he was - but that was regarded as sufficient for that purpose at the time.
Your Honour Justice Kirby asked me yesterday about the position in Canada in relation to the equivalents of sections 34 and 44. We have provided your Honours with copies of extracts from the British North America Act and your Honours will see that section 23(2) corresponds to 34(ii), and 31(2) corresponds to 44(i) but there is a very big difference between those provisions and ours. If your Honours go to section 23(2) of the British North America Act, which is on page 9 of the extracts, your Honours will see two things which distinguish that provision from section 34. The first is, it is not on its face transitional at all, and the second is that it precisely matches or corresponds to the disqualification provision in section 31(2), whereas in the case of our Constitution the relationship between 34(ii) and 44(i) is far more distant.
It is distant, first, because 34(ii) is transitional and it is distant, more importantly, because there are four possibilities. A person can fall under either, alone and not the other, or both or neither. In that respect, our sections differ significantly from the Canadian equivalents.
GUMMOW J: That was for the Senate, but what about the House of Commons?
MR BENNETT: The provisions in relation to the House of Commons, your Honour - - -
GUMMOW J: They are in section 41, I think.
MR BENNETT: Yes, we have not reproduced them. The provisions in relation to qualifications, which I will come to, in Canada are for a different purpose, or at least were repeated in relation to each of the provinces in the lower House, so it is simply just to look at the Senate.
GUMMOW J: But section 41 says:
Until the Parliament of Canada otherwise provides, all Laws in force in the several Provinces at the Union relative to the following Matters.....shall respectively apply to Elections of Members to serve in the House of Commons -
And the matters included qualifications and disqualifications of persons to be elected or sit or vote. So, it is not - - -
MR BENNETT: That, your Honour, has, of course, no relevance to this question. That is dealing with a different aspect of it and I will come to that when I come to the question of qualifications. One matter we point out in relation to this argument, it is a matter for your Honours as to the weight you give it, but at this stage no leave has been sought by my learned friends to overrule the decision in Nolan, and there may be a question as to - we would submit he needs to obtain such leave before putting the argument which is put.
Finally, on this part of the argument, there is a minor error in our submissions, I will ask your Honours to note. In paragraph 60 of our principal submissions, in the first sentence we said that Re Wood concerned the disqualification of a senator elect. It did not, it concerned the disqualification of a sitting senator, a distinction which may be of importance when I come to the next part of the submissions.
KIRBY J: That was a reference, was it not?
MR BENNETT: Yes, your Honour.
KIRBY J: That fits in with the theory that Justice McHugh was asking questions about yesterday, that disqualification is a matter both under the Act and under practice that is referred, where it is appropriate, to the Court by the public chamber and not the subject of private initiative by the elector.
MR BENNETT: I will be disagreeing with that view, your Honour, in the next section of my submissions which I am now coming to. I have finished now with the subject of section 44 on foreign power, and I come now to the question of whether this Court has jurisdiction under Division 1 to deal with the question of disqualification. May I start with two general propositions and then go to those two in some detail.
The first general proposition is that the Anthony Hordern principle has no application here and the reason for that is this, that the Anthony Hordern principle arises where one has a general and a particular. One only has a general and a particular where the relationship between the two subject matters is one of inclusion where the general includes the particular. Here the relationship is one of intersection. Where one has a relationship of intersection, so that each referent has areas outside the area of intersection, one cannot have a general and a particular and Anthony Hordern simply cannot apply.
KIRBY J: Why is not the so-called invalidity of the election pro tanto raised by the question of qualification? I thought that was what was being argued, that it is part of the question of validity and that way gets into Division 1.
MR BENNETT: No, your Honour. What we say is this: Division 1 is concerned with all matters concerning the validity of an election including qualification.
KIRBY J: Therefore, it is included. Therefore, Anthony Hordern applies.
MR BENNETT: No, your Honour, I have not finished giving the - your Honour stops me halfway through the comparison.
KIRBY J: I shall try to bide my time.
MR BENNETT: Division 2 deals with two subject matters. It deals with qualification at the time of election. It also deals with all matters, including qualification, arising after an election, such as expulsion; such as subsequent disqualification - the member who becomes bankrupt after the election; matters of that sort. So, the area of intersection is qualification at the time of election but each of the divisions has a wider operation. Division 1 also applies to other matters arising in the course of an election. Division 2 relates to all matters arising after the election.
GUMMOW J: What is the distinction, Mr Solicitor, in 353(1), if there is one, between the validity of an election and the validity of a return? Is the election the process and the return the return of the writ under section 283?
MR BENNETT: I have not performed that analysis, your Honour. Might I have leave to answer that - - -
GUMMOW J: I always thought an election was a process, really.
MR BENNETT: Might I have leave to answer that question later in my submission?
GUMMOW J: Yes. Maybe Mr Swan will pick it up.
MR BENNETT: I will have that looked at.
McHUGH J: Mr Bennett, legislation has to be read as a whole. Now, unless you can get some implications out of the heading of Division 1 and Division 2, does not the express enactment of 376 carry with it negative implications?
MR BENNETT: What I propose to show your Honours by reference to second reading speeches of 1902 and 1907 and the convention debates, is that the real purpose of the division between Division 1 and Division 2 and, indeed, the separate wording in the Constitution, and so on, was rather to separate the question of matters occurring later and matters occurring during the election. I think, it was, in effect, a side wind under which the question of qualification got partly caught up in the second, although included in the first, and that is what I will seek to demonstrate. What people's minds were directed to was things at the time of the election went under Division 1 and things that happened later went under Division 2 and, as I say, qualification got straddled between the two for various reasons. That is what seems to have happened.
Now, Justice Dawson in Sykes v Cleary [1992] HCA 32; 107 ALR 577 at 579, said very much what I am putting. I will not read your Honours the paragraph, it is a long paragraph. But it is the paragraph which fills the bottom third of the page on page 579.
GAUDRON J: Yes, it has, in fact, been read to us yesterday.
MR BENNETT: Yes, it has, and that puts, really, what I have put. Now, I was asked yesterday about the analogous situation - or the non-analogous situation in Canada. If I can ask your Honours to return to the British North America Act? It had a totally different regime for the Senate and the Houses.
GUMMOW J: Well, senators were not elected.
MR BENNETT: Yes, that is so. The provision about disputed returns seems to appear separately for each of the provinces. We have given your Honours the ones for Quebec. I have not given your Honours the whole Act, but on page 18, I think the last of the pages of the document your Honours have, section 76 deals with qualification or vacancy and says that is determined in the Legislative Council. Under section 33:
If any Question arises respecting the Qualification of Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate.
There were similar provisions to section 76 in relation to other provinces. There does not seem to be any provision dealing with anything analogous to a Court of Disputed Returns.
GUMMOW J: That is why I referred you to section 41. Is it in the power of the Parliament of Canada to make laws about it. I imagine they have with respect to the House of Commons.
MR BENNETT: Yes, I am sorry, it simply incorporated provincial law.
GUMMOW J: No, until the Parliament provided.
MR BENNETT: Yes:
Until the Parliament of Canada otherwise provides, all Laws in force in the several Provinces.....Qualifications and Disqualifications.....shall respectively apply to Elections of Members -
Then there is a note:
The principal provisions concerning elections are now found in -
various other pieces of legislation. The note may not be in your Honour's copy, but the note at the end of section 41 says:
[Note: The principal provisions concerning elections are now found in the Parliament of Canada Act, Canada Elections Act and Dominion Controverted Elections Act (all three enacted by Canada).
So, the situation there seems to have been that the transitional provision was that it was dealt with by provincial law and then subsequently it was - - -
GUMMOW J: We still do not know if they have a Court of Disputed Returns.
MR BENNETT: No, we do not; we have not followed that through, your Honour. There has been reference made to the position in England in the last century. The only relevance of that is to assist in the distinguishing of Holmes v Angwin but it is significant that the English provision was for a petition which seems to have applied in either case, and there is a passage in Rogers on Elections. I have the 17th Ed 1895, volume 2 at page 180 - your Honours will not have this -which simply says this:
Any matters may be alleged as grounds for a petition, which, if proved, would avoid the election or return. The usual grounds for petitioning are the existence of corrupt or illegal practices committed by a candidate or his agents, the disqualification of a candidate for being elected, or that the petitioner had a majority of lawful votes.
So, disqualification of the candidate is treated as simply along with illegal practices and along with absence of a majority as matters to be dealt with by petition.
GUMMOW J: The test Acts would have disqualified Roman Catholics, for example.
MR BENNETT: Yes. The list of people excluded was quite long. It included aliens, infants, lunatics, women, peers, clergy, returning officers, and amongst others, there was a particular disqualification of any person who attended a Scotch Episcopal Church twice in a year where the Royal Family is not prayed for. So, there was a large range of quite peculiar disqualifications in England. The significance of that for present purposes is that there was not a distinction in procedure in England prior to Federation between, on the one hand, qualification and, on the other hand, illegal practices.
What we submit ultimately flows in the reading of the Act, is that really, when one looks at the definition, "illegal practice" is rather like the Holy Roman Empire, neither holy, nor Roman, nor an empire. It is neither illegal nor a practice. It simply means a contravention of this Act, whether a practice or not. One could have contravention in that sense, on one view of it, without a breach of the criminal law.
For example, there are provisions requiring the Chief Electoral Officer, and now the Electoral Commission, to count votes. Suppose there is a fire in an electoral office and the votes are destroyed before they are counted, we would submit there has certainly been no criminal offence, except, perhaps, arson by someone - there may well have been no criminal offence. But, there has been a contravention in the sense which would activate Division 1 in the sense that the votes have not been counted.
A question would arise if some votes were destroyed, and the question was whether the number of votes that were destroyed could have affected the result, and those questions might well arise, and one would either have to say section 362 is not exhaustive as to that sort of matter, or one would say that "illegal practice", as defined, includes the contravention of not counting the votes, even though that contravention, of course, would not involve the breach of the criminal law. So, one could do it in either way.
We put some submissions in detail in our supplementary submissions dealing with this area. I will not take your Honours through them. They deal in some detail with your Honour Justice Gaudron's judgment in Hudson v Lee, and we submit in relation to that - - -
GAUDRON J: You submit it was concerned with illegal practices not more generally.
MR BENNETT: Yes, I will say any more about that. In relation to the overlapping, may I just remind your Honours of a couple of things that were said at the time. In the convention debates - and we have given your Honours the reference to this in the submissions - there are two very short references to the division, if one likes, between the two areas, and might I, to save time while going through these, note the passages which deal with the High Court being the Court of Disputed Returns, which becomes relevant in the third part of the argument.
The first is page 680 of the 1897 convention in Adelaide, and your Honours see that in the second column of that page - page 680 - a clause being debated appears a quarter of the way down the second column:
Clause 20. - Until The Parliament otherwise provides, any question respecting the qualification of a member, or a vacancy in the Senate, or a disputed return, shall be determined by the Senate.
That lumps together, your Honours will notice, "qualification", "vacancy" and "disputed return". There is an immaterial amendment in the middle of the page. Then, Sir Edward Braddon, at the bottom of the page says:
It is almost essential, to my mind, that these questions, more especially the question of disputed returns, should be determined by the Supreme Court, and not by the Senate. We have found out from practical experience the necessity of making this change, and submitting these questions to the Supreme Court, and I hope that in making this great and high departure and forming a Federal Parliament we shall not run into any errors which will necessitate any changes whatever in the early stages of our Federal government. I shall move:-
That the words "High Court" be substituted for "Senate."
Then Mr Barton asked that the amendment not be formally put. It has been discussed in detail, and he says:
There were a good many of us who thought that matters of this kind should be decided by the Judges, instead of what we have found to be a fallacious tribunal, a Committee of the Houses of Parliament. At the same time, it was thought better to leave the matter as it stands in the Constitution, only you must put a proviso in the beginning....."until The Parliament otherwise provides." It seems to me that it is a matter for the Parliament -
et cetera. Then Mr Barton says:
It is quite open to it, and if the Parliament will not undertake the matter itself, it will delegate it to the High Court. But that is a matter of internal arrangement.
Then Mr Reid refers to:
the constant scandals and outrages in the United States over this very question -
and then there is a discussion about England. Mr Wise, at the bottom of the second column says:
there are two questions involved here, which ought to be kept distinct. There is the qualification of a member or the question as to vacancies on the one side, and the question of a disputed return, which is a matter of altogether a different character.
We simply point out qualification of a member, itself involves two questions: it is of qualification at the time of election, and it involves qualification after election. The question of disputed return, we would submit, also includes qualification at the time of election. That is a dispute of the return itself.
So that division has an area internally of intersection it is not three watertight compartments. That is made clear by the next sentence where he runs them together. In the next sentence Mr Wise says:
I apprehend that only questions of disputed returns should be dealt with by the Supreme Court, but that the Senate should have all control over all questions of order or decency over its own body which might lead it to expel a member.
So in that division he seems to assume that qualification at the time of election fits into the disputed returns category, although in the first setting out of the three, he has made the other assumption. That is why I said there seems to have been a little bit of a slide and no one has precisely analysed or suggested that disputed qualification at the time of election falls on one or other of the categories. Then there is some further discussion and the amendment is not made.
There is a minor follow-up at page 1150 in that volume, also in Adelaide, on 22 April 1897 - I am sorry, I should have told your Honours on the previous page, your Honours will see further down column one, there is discussion about the drafting of it and Mr Barton is asked to draw up the clause, he declines, Mr Reid draws it up and then the amendment is agreed to. On page 1150, then, on the second occasion, Mr Barton says at the bottom of the first column:
I have to propose a new clause to follow clause 48 in this form:
Until the Parliament otherwise provides all questions of disputed elections arising in the Senate or House of Representatives shall be determined by a Court exercising federal jurisdiction.
We have not said "the High Court" here, because there is power in the Constitution to invest any court with federal jurisdiction, so that this clause will work in this convenient way that the Court of a State invested with federal jurisdiction may determine such a matter in any States.
Then Mr Kingston asks:
Is it for disputed return only?
Mr BARTON: Yes; vacancies and qualifications are left in both Houses.
Mr SYMON: Is it "disputed returns" or "elections"?
Mr BARTON: "Disputed elections". We consider that the more general term.
KIRBY J: Just pause there. Does not that answer by Mr Barton, "vacancies and qualifications are left in both Houses", bear out the structure of Divisions 1 and 2?
MR BENNETT: Yes, but he is talking about qualifications there. In the sense of vacancies and qualifications the phrase "qualifications" covers the two things, qualifications at the time of the election, qualifications arising later. As discussed earlier, that was something which straddled the two. That is made clear by the following answer where he says "disputed returns" is the more general term because that also covers qualifications at the time of election.
KIRBY J: It would have been so easy for Parliament to have said "qualification of a sitting member or sitting senator", but instead where it speaks of qualification it does so only in Division 2 and provides for relief only in Division 2 in respect of qualification, unless you fit it into the general, which is difficult to reconcile with the express statement in Division 2.
MR BENNETT: Yes, but Division 2 - the problem is the loose thinking arose because people were anxious, as Mr Wise said, to make it clear that disputes arising in relation to sitting members would be dealt with by the Houses.
KIRBY J: Well, you say it is loose thinking, but the other theory is that the question of the process, as Justice Gummow described it, is a matter that ordinary electors can agitate and candidates who lose and so on, and they can have their fights about the ballot papers and the ticks and all that sort of matter, but that once a person has passed that Rubicon and is, prima facie, an elected member, that is a matter that the Parliament keeps to itself. Subject to the point Justice Gummow asked your help on relating to the return, there is a specific reference to the return and that may be enough to get you into Division 1. But subject to that, the structure seems to be on the high matter of the qualification of somebody who is in our ranks, "We will reserve that to ourselves".
MR BENNETT: Your Honour, we would submit that the division in the mind was rather the temporal division and that the question of qualification was seen as one which straddled both areas.
KIRBY J: It does not affect the election, it merely affects the capacity of the person to be elected to take part as a result of the election.
MR BENNETT: It would involve the very evil which was referred to in the constitutional debates of people who may vote on party political lines deciding whether or not to apply disqualification which might affect the balance in the House, a disqualification existing - - -
KIRBY J: You say that, but my experience is that that is not the way the Parliament of Australia approaches these sorts of matters and should not, and does not.
MR BENNETT: Well, your Honour, whether Parliament should or does is not the question. The question is, what was the evil which the founding fathers were concerned to - the mischief they were concerned to avoid, and they have made that very clear and the primary distinction they were concerned with was, not between the high matter of qualification and the low matter of counting votes, but between matters arising afterwards and counting votes and qualification at the time of election, fitted into both categories and no one troubled to define precisely the distinction because they were content for it to sit in both categories. But the main purpose of holding back was, as Mr Wise said, to make it clear that Parliament was concerned with disqualification of its own members.
KIRBY J: I have not expressed very well the thought that I have about the rationale that may lay behind it, but in the United States, for example, it is talked of as Senate courtesy. It is courtesy of a chamber to a member.
MR BENNETT: But if he is a member, your Honour, or if she is a member. If the person is not qualified to be a member, does not pass the test of qualification to be elected in the first place. It rather begs the question to say, that is a matter for the House, whereas, a defect in the election other than that is not a matter for the House.
KIRBY J: It is a matter for the House which the House can refer to the Court, but which, otherwise, it will determine for itself out of courtesy to a person who has been, on the face of things, elected to the chamber.
MR BENNETT: But a person has been, on the face of it, elected, if there is a deficiency in the process, your Honour.
KIRBY J: And that can be dealt with by the chamber or referred to the Court. There is no lacuna. It can be dealt with. It is a question of what is the structure.
MR BENNETT: If there is a dispute about the election or the qualification of a person to be elected, Division 1 deals with it. It is not a matter of deferring to Parliament. Parliament has, pursuant to the Constitution, enacted the Electoral Act and if, on its construction, it has the effect for which I refer, so be it. That overrides the question of what either House might wish to do on its own.
KIRBY J: I will not go on about this, but I just have one last question. If one is left in doubt at the end of it, looking at the Act, is it not a proper process of reasoning to say, "Well, I will resolve the doubt by reference to the background against which it comes to the Court". It comes to the Court against the ancient privileges of Parliament and the fact that they are reserved in our Constitution and that it is provided that Parliament can otherwise provide, but unless it does so clearly, it should be taken by a Court that it has reserved its privileges and kept them to itself.
MR BENNETT: No, your Honour, we would submit, rather, that one simply applies normal canons of construction to the Electoral Act and if it has done it, it has done it, whether it involves the abrogation of an ancient privilege or not.
KIRBY J: This is an Electoral Act with a constitutional flavour.
GUMMOW J: That constitutional flavour includes section 46 in the Common Informers Act. It would seem that if the contrary construction that one only goes to the provision to is correct and these matters cannot be sorted out before the person apparently elected takes his or her seat, what then happens is the common informer, pursuant to parliamentary provision, it may be said, then moves and this person is then, at any stage during the tenure - some malicious person might wait until the end - and then seek $200 for each day this person has been sitting. How much more sensible to sort it out at the beginning so that the person elected is not faced with this hazard?
KIRBY J: It can be sorted out at the beginning by reference to the chamber to the court.
MR BENNETT: Your Honour, it is hardly a courtesy to the chamber or the member to allow the person to sit for the term and then be sued in the Court of Petty Sessions for [sterling]100 a day by a common informer.
McHUGH J: Yes, but it may be that if on the proper construction of 46 and 47, that you can only sue for the penalty after the Parliament has made a declaration under section 47.
MR BENNETT: Well, your Honour, the Parliament has made a declaration or - the wording of section 46 is "any person declared by this Constitution to be incapable", not any person found by a court or determined - - -
McHUGH J: I appreciate that, but then 47 goes on to say who shall determine the question concerning the qualification.
MR BENNETT: Yes, "Until the Parliament otherwise provides".
McHUGH J: Then there is the question of what is a "court of competent jurisdiction"? Does it mean any court that has jurisdiction to recover a penalty?
MR BENNETT: Yes, your Honour.
GUMMOW J: Well, the Parliament has now provided that it is this Court, exclusively.
GAUDRON J: The one thing that does emerge from section 46 is that it was intended that the question of capacity or qualification should be a justiciable question determined in the exercise of the judicial power. I mean, that much is clear about that.
McHUGH J: I am not sure about that. I think 46 certainly shows that if there has been a breach of the Constitution, one can be penalised for it in the courts and, to that extent, it is justiciable, but whether or not the issue of capacity can be determined in the ordinary courts, may be another question.
MR BENNETT: Yes, we are getting into the third area which I am getting close to coming to, but we do point out - - -
KIRBY J: Some support for you might lie in the fact that, quite apart from the Court of Disputed Returns procedure, it would, perhaps, subject to the justiciability point Justice McHugh just mentioned, be open to a party to seek to challenge the Electoral Office's return of the writ under section 75(v) and say under that section, or seek a declaration under that section, that the person was disqualified by the Constitution.
MR BENNETT: There may be a question whether a corporation sole is an officer, so the Electoral Commission - - -
KIRBY J: There would be an officer there, there would be somebody with the return going on his way to the Governor, who would be an officer.
MR BENNETT: Well, there may be a question about that, and there also may be questions as to the extent to which that is overridden by these specific provisions. The only other thing I want to say about this part of the argument before moving to the third part, is to refer your Honours very quickly to the debates in 1902 and 1907. Going to 1902 first, we would submit it is reasonably clear that what Parliament is talking about is the temporal division. Your Honours see that in the second column on page 14680, the first page, where at about a quarter of the way down the page Mr Groom says, in the course of debate:
Suppose a man holds an office of profit under the Crown, that being a ground disqualification. .....at the time of his election, the matter would be one into which the court of disputed returns would have power to inquire..... But if we pass the Bill as it stands it will have this peculiar effect - that supposing a member has been elected for twelve months, and then accepts an office of profit under the Crown, the tribunal.....will not be the court of disputed returns, but a committee of the House itself -
So, he regards that as the distinction.
So, stopping there, we would submit that there is a small clue, and it is a very small clue, in the course of debate, suggesting that it was the temporal division which was primarily activating the minds of Parliament at the time, rather than the sort of division your Honour Justice Kirby was putting to me.
McHUGH J: Do you notice at the bottom of page 14680, and then over the page:
Notwithstanding the existence of a court in England for the purpose of trying disputed elections, questions concerning disqualifications are still tried by select committees -
MR BENNETT: I am sorry; where is your Honour reading from?
McHUGH J: At the bottom of page 14680 and over the page.
MR BENNETT: Yes, but that is in England.
McHUGH J: Yes.
MR BENNETT: But that is talking about disqualifications arising after the election.
McHUGH J: Well, it may be.
MR BENNETT: We would submit it must be, your Honour, in the context and indeed, if one reads a bit further down:
Disputes might also arise where members had entered into contracts with the Crown.
and so on.
A case of that kind has arisen in Queensland. It was alleged against a Member of Parliament that he had entered into a contract with the Crown.....the contract was really held by his wife -
and so on. It is all discussed in the context of the temporal division and, really, qualifications were thought of as being much more likely to arise subsequently, because it is obviously unlikely that a disqualified person would get past the electoral system into Parliament.
McHUGH J: Was Littleton Groom the Attorney-General at the time?
MR BENNETT: It reads as if he was in opposition when one reads the debate.
GUMMOW J: I think Deakin was the Attorney-General.
MR BENNETT: Yes. If one goes to the 1907 document which is further along, your Honours will see there is a section being discussed, which is equivalent of now 376, I think, and Mr Groom says:
That refers to any question regarding the qualification of a member which may arise during his tenure.
And then Mr Chanter says:
It goes further than that. It proposes to repeal a certain portion of the principal Act by declaring that in future -
McHUGH J: Sorry, what page is this, Mr Bennett?
MR BENNETT: This is page 6375 of the 1907 debate. This is where Division 2 is inserted.
McHUGH J: Page 6375?
HAYNE J: It is bound in with the 1902 debates. It is the third and fourth sheet of the bundle about the 1902 debates; we have gone over to 1907 debates.
MR BENNETT: Mr Groom says:
That refers to any question regarding the qualification of a member which may arise during his tenure.
And Mr Chanter says:
It goes further than that. It proposes to repeal a certain portion of the principal Act by declaring that in future all questions respecting the qualifications of members of both Houses of the Parliament shall be referred to the High Court. If the Bill applied only to elections for the Senate, I should be content to allow it to pass without a word of criticism. But I have had some experience of disputed elections -
And then there is a discussion and Mr King O'Malley, who I referred to, takes part in it, and Mr Chanter goes on to say, at the end of the long statement on page 6376, about two-thirds of the way down the long statement:
I am strongly of opinion that if the measure be agreed to in its present form, it will provide that all cases respecting the qualifications of members of this Parliament shall be referred to the High Court. All matters in regard to the qualification of members of Parliament, whether of the House of Representatives or of the Senate, can be and should be, decided by a tribunal appointed by Parliament itself. I do not intend at this stage to offer any lengthy remarks.
So he certainly took a broader view, but they seem to have been discussing a form in which the Act ultimately did not go through, where that is said.
KIRBY J: Who is this man, Mr Chanter?
McHUGH J: He was in Chanter v Blackwood, I suppose, in that early case.
KIRBY J: He is just a member of Parliament, and who is really going to be rummaging around in - - -
MR BENNETT: What I am endeavouring to show, your Honour, is that in general terms, the distinction which Parliament had in mind and which, indeed, the founding fathers had in mind, was a temporal one rather than the one your Honour Justice Kirby refers to. They never say anywhere what your Honour has said. No one ever says, anywhere, "qualification, at the time of election, ought to be decided only by Parliament because it is more important than mere matters of electoral procedure". There is a dearth of anyone saying that.
KIRBY J: It is not the importance, it is the delicacy or the way of dealing with a colleague.
MR BENNETT: The delicacy of dealing with a colleague, your Honour, is temporal. The delicacy is they are concerned with the colleague who becomes disqualified. That is their concern. Their concern is not the colleague who ought not to have been elected.
KIRBY J: I wish they had made that clear in Division 2.
MR BENNETT: If they made it clear, your Honour, we would have a much shorter case.
GAUDRON J: I am wondering if that is strictly correct, Mr Solicitor. What if, as I think is the case in Wood, there is no challenge to the election or the return, but the issue in Wood was nonetheless, I think, whether he had been properly elected. It was a reference, so it is not entirely temporal.
MR BENNETT: No, your Honour.
GAUDRON J: It may, may it not, extend to any case in which the question arises when it has not already been determined by this Court, or some other courts in this Court of Disputed Returns?
MR BENNETT: Your Honour, we say, of course that it falls in both categories, but may I put it this way: there are three types of question, if one likes. There is the whole range of, what we can loosely call "procedural objections to an election". They are subject to a strict time limit dealt with by the Court of Disputed Returns. There is the whole area of subsequent disqualification and expulsion and matters which occur after a person, properly elected, takes his seat. Those matters are dealt with by Parliament unless Parliament chooses to refer them to the Court of Disputed Returns. Then there is the intermediate category - - -
GUMMOW J: There is another category. No one takes the point before the member takes his or her seat. There is a question, though, arises as to disqualification. It may have been one with an anterior existence. It may arise during the tenure whilst a person is sitting. There is no move within the Parliament to refer anything for party political reasons. What is to be done? How is the Constitution to be vindicated? That is why section 46 is there, why the common form is there.
MR BENNETT: That is the further question, your Honour, yes. But - - -
GUMMOW J: But the Court ultimately determines it, one way or another.
MR BENNETT: It does your Honour, as a matter of judicial power.
GUMMOW J: That is the high constitutional principle, that the Constitution should not be flouted and people should not have laws passed by people who should not be there.
MR BENNETT: We accept that, your Honour.
GUMMOW J: It is quite simple.
MR BENNETT: But if I can just finish the tripartite division. The other area is the present area of initially arising disqualification. That can be dealt with either within the time limit under Division 1 or by Parliament, subsequently, under Division 2, as can matters where there is no dispute. It may be that in section 353, Parliament used the words "and not otherwise", it was referring to a disputed election. In the classic case where a person is, like Wood, there was no dispute. No person came to the Court under Division 1. But Parliament was - - -
GAUDRON J: In fact, I have a note to tell me that there was a petition, but it was struck out for failing on the technical grounds.
GUMMOW J: It might be late.
MR BENNETT: Yes.
GAUDRON J: And, later, the Senate referred the question to this Court.
MR BENNETT: Yes. Part of the argument in Wood was whether the time limit prevented the Court looking at it under Division 2, and, of course, it was held that it did not. The time limit only - - -
GUMMOW J: The question is, what would have happened in Wood if the person in question had been a member of a party holding majority power in the relevant chamber?
MR BENNETT: Yes. Or, even more importantly, what would have happened if he was the casting vote or she was the casting vote?
GUMMOW J: Exactly.
MR BENNETT: Your Honours, those are my submissions on the second aspect of the case, the division between the two parts. The final matter concerns constitutional validity.
HAYNE J: Just before you pass to that, we have been supplied with the second reading speech for the 1907 Act which suggests in terms that the 1907 Act arose directly out of the Vardon episodes. Do you say we gain any or no assistance from that second reading speech?
MR BENNETT: I am not able to assist your Honour as to what the Vardon episode concerned.
HAYNE J: Reg v Governor of the State of South Australia, the two reports in 4 CLR, Blundell v Vardon, Reg v Governor of the State of South Australia and then in 5 CLR Vardon v O'Loghlin. Vardon v O'Loghlin apparently following the 1907 Act.
MR BENNETT: Yes. That concerned a - - -
HAYNE J: The Minister introducing the 1907 Bill seemed, at least on my first quick look at the second reading speech, to suggest that the whole purpose of its introduction was to deal with the problems that the Vardon litigation had revealed.
MR BENNETT: Yes.
HAYNE J: Now, my question is, do you make any submission about whether we gain any help or no help?
MR BENNETT: We gained this help, your Honour, that it would show that dealing with procedural matters where there had been no dispute taken to the Court under Division 1 was nevertheless something which Parliament thought could be dealt with under Division 2, so, that supports my submission in relation to the non-exclusivity of the two parts. The third area then concerns constitutional validity. We have given your Honours detailed submissions on this and most of it has been covered by my learned friend. We would submit that Holmes v Angwin really is a case which does not assist very much in the Commonwealth context. It is a case concerning States, it is a case concerning the history of the division in relation to States and although some provisions are very similar, we would submit, it has very little to say on the present problem.
It is also significant that two of the three Justices, the Chief Justice and Justice Higgins, dealt with judicial power only in the context of whether the Judges were persona designata or personae designatae rather than sitting as the Court. In other words, the process of reasoning of those two Justices was not, "This is not judicial power, therefore section 73 does not apply". Justice Barton followed that line. But the Chief Justice and Justice Higgins rather said, "We look at the nature of the jurisdiction to see whether they are personae designatae or not and really only for that purpose and having done that and having held that they are, that takes it out of section 73 because it is not the Supreme Court. So, only one of the three Justices really supports my friend directly. The others dealt with it indirectly and may well have been using judicial power in a different sense.
Of course, one cannot read Holmes v Angwin in the light of Boilermakers and in the light of current developments on judicial power and one ought not to assume that that type of distinction was present, even to Justice Barton's mind, when he decided the case. To do so, apart from anything else, would be inconsistent with what he said in a different capacity in the convention debates where he referred to the Court of Disputed Returns being the High Court. He very clearly had that in mind and did not regard that as something which he needed to refer to at all in deciding Holmes v Angwin. So, we would submit, it is confined to the states, it involved a different Act which did use different language in its reference to the Court - to reference to judges of the Court and it is simply not of assistance.
We then submit this, that all the indicia as to the nature of this power are that it is judicial. It is not a mere declaration like In re Judiciary and Navigation Acts, it is a determination of status based on fixed criteria, and determining ultimately that a person does or does not have the status. It is a decision which, in that determination, might well affect, or would affect not only proceedings under section 46, but also matters such as entitlement to parliamentary salary, which is justiciable; entitlement to parliamentary entitlements, which are justiciable; the question whether such entitlements have been obtained improperly, which is justiciable; it might be defence if a person were charged with some offence involving parliamentary entitlements to show that he was not a member of Parliament.
McHUGH J: What about enforcement?
MR BENNETT: The question is how it is being enforced. There are, of course, restrictions arising out of the relationships between the three branches of government, the sort of thing discussed in Egan v Willis, which might determine what takes place within the House, and prevent the Court stepping there. But, as a matter of law, the determination of this Court would decide whether the person was or was not a member.
It would certainly arise in relation to privileges. If the person in a defamation case claimed some privilege, it would be an answer for that privilege for the courts to say - - -
GUMMOW J: Section 374 provides for effect, does it not?
MR BENNETT: Yes, precisely, your Honour.
GUMMOW J: Self-executing, and if there was a recalcitrant person then section 46 again comes into play.
MR BENNETT: Yes, precisely, your Honour. We do not have to answer the question, the Egan v Willis question, of what would happen if this Court held someone to be elected and the Senate were to say, "We take the view the person was invalidly elected", and Black Rod is ordered to remove the person from the Senate and the person sues for assault. Your Honours do not need to decide that question; it involves some of the distinctions which were looked at in Egan v Willis, and it might depend on the form of the resolution and various other matters. But, apart from that sensitive area, the question of enforcement is a matter of judicial power.
KIRBY J: But what about section 368, the removal or purported removal of appeals? We are sitting here to answer certain questions asked of us by a Justice sitting as the Court of Disputed Returns. What if we give answers and then that Justice reaches a conclusion that the Full Court would not necessarily agree with? There is a purported exclusion of the appellate structure which is preserved b the Constitution. How can you defend that?
MR BENNETT: I had better come to that. We do it in two ways. We say in the alternative, it is an exception to Chapter III, or if there is any invalidity it would relate solely to that provision. But there are anomalies in relation to rights of appeal. If the Court of Disputed Returns were to sit, constituted by say, five Justices, one could hardly suggest there could be an appeal to the High Court which could be heard by the other two sitting as a Full Court. There would be serious anomalies.
GUMMOW J: It is a question of Cockle v Isaksen, is it not?
GAUDRON J: Section 73 of the Constitution says that the appellate jurisdiction of this Court is subject to:
exceptions and subject to such regulations as the Parliament prescribes - - -
GUMMOW J: Section 118 of the Conciliation and Arbitration Act used to say that election matters, union election disputes, did not go on appeal. That was always treated as valid.
MR BENNETT: Yes.
GUMMOW J: You got it here only by prerogative writ under 75(v), directed to the federal judge.
MR BENNETT: Yes, that is so.
GLEESON CJ: What about section 363A, is that exhortatory?
MR BENNETT: Again, there are a number of provisions like this, and we have gone through them in our submissions. What we say is that there is nothing invalid about an exhortatory provision of that nature. There is a more direct one in relation to time limits in section 367A which requires a decision to be given within three months. But there is nothing inconsistent with judicial power in such a provision as long as it is not unreasonably short, or so unreasonably short as to make the exercise not one of judicial power.
McHUGH J: What about section 364, having regard to the history of this jurisdiction which comes from Parliament?
MR BENNETT: Abbotto's Case (1997) 144 ALR 352 at 357, said that there is nothing inconsistent with judicial power, that there is a determination in accordance with a section like this, because - what that case said, I am sorry, was that a section such as this is not an abandonment of legal norms. It would be ironic, I suppose, if one said that a requirement to "be guided by substantial merits and good conscience" was inconsistent with the exercise of judicial power.
McHUGH J: Why? I would have thought there was a strong argument that it was. What is the legal criterion that you apply to see what is the "substantial merits and good conscience" of a case?
MR BENNETT: Your Honour, they were discussed by Justice Dawson in Abbotto and his Honour said this:
When the section speaks of the "substantial merits" of the case, it means, of course, the substantial legal merits of each case rather than what might be perceived to be the fairness of the law itself.
And we would respectfully adopt that. These words do not import parliamentary justice; they are far narrower than that.
KIRBY J: In answer to my point on section 368, reference was made to section 73 of the Constitution, but that is in relation to appeals Parliament may determine of any Justice or Justices exercising original jurisdiction of the High Court. The Court of Disputed Returns is not doing that. Where is the power going? Justice of the High Court to perform that function, other than as a persona disignata.
MR BENNETT: Your Honour, we submit, it appears from section 354(1):
The High Court shall be the Court of Disputed Returns
McHUGH J: Yes, but how do you reconcile that section with section 373:
All other costs awarded by the Court.....shall be recoverable as if the order of the Court were a judgment of the High Court of Australia -
It seems to draw a distinction between the Court of Disputed Returns and the High Court.
MR BENNETT: Your Honour, we would submit there that the "as if" is inappropriate. It came in because the section was adopted from some State legislation. The section is merely for more abundant caution and cannot be construed so as to govern and force a different construction on the division as a whole, or particularly on the clear words of section 354(1).
McHUGH J: But the fact that section 373 deals specifically with costs, seems to indicate that the ordinary machinery of this Court is not available for the enforcement of other orders.
MR BENNETT: Your Honour, if one goes to section 375, there is provision for "rules of Court" to be made, carrying it "into effect" and "regulating the practice and procedure of the Court" and that has been done in Order 68 rule 2. In a sense, that is why we are here because it is that which incorporates, by reference, Order 35 rule 1, permitting the stated case. So there was no need for section 373. It had appeared in statutes where judges were persona disignata; it was simply taken across and it is not a section which should be construed as overriding the clear words of section 354(1), which is the primary provision in this area.
McHUGH J: But when you look at the history of the jurisdiction, at its origins, the power is confined to making declarations, and that then the order is to be sent off to the Parliament. Do not those factors all point against this being intended as an exercise of judicial power, particularly when you have a section like 364 involved?
MR BENNETT: Your Honour, there is nothing surprising about sending it to Parliament. Parliament is another branch of government affected by the decision and, fairly clearly, there should be a procedure for doing it. It is done by the Registrar, of course, not by the Court.
McHUGH J: I know.
MR BENNETT: There is nothing inconsistent with the judicial power of the Court that the Registrar is required to deliver something. What is important is the provisions of 354(1) combined with the judicial nature of the inquiry, because the inquiry has effect for a large number of areas affecting people's rights and liabilities in the courts.
McHUGH J: But it is more than that. Section 364 allows hearsay evidence to be taken, does it not?
MR BENNETT: That is not inconsistent with judicial power, your Honour.
McHUGH J: Why?
MR BENNETT: It is done under the Evidence Act in some cases.
McHUGH J: I appreciate that, but that itself may raise a question. But, leaving that aside, you get the impression from 364 that the whole matter is at large. The Court is not bound by legal forms or technicalities, it is to have regard to substantial merits and good conscience, and this is a jurisdiction that is exercised by parliamentarians. So, has it been transformed on the journey from the hill to here?
MR BENNETT: Your Honour, two things. First, there is nothing surprising in a power being judicial when exercised by a court, and non-judicial when exercised by someone else. That has been said many times in this Court. So, there is nothing surprising in it being changed as it comes across. But, secondly and more importantly, there are - - -
GUMMOW J: .....without regard to legal forms of technicalities in accordance with the good conscience of the case comes from the jurisdiction of the Court of Requests 400 years ago - Chancery - that is where it comes from.
MR BENNETT: That supports the approach taken by Justice Dawson to those words and no doubt lay behind it. The other aspect, of course, is that the Constitution does have exceptions to the Boilermakers division. The obvious ones are - there were four, I suppose - there is Fitzpatrick and Browne where Parliament has the judicial function of sending people, if necessary, to prison for contempt of Parliament. There is clearly a judicial power but for the fact that Parliament exercises it. There are the cases on court martials - a string of them beginning with Re Tracey, which have held that they are, in effect, an exception to Chapter III because they are implicit in the defence power that they were always court martials. There is the power of Parliament under section 72 in relation to the removal of federal judges where, again, there is a judicial determination of whether there has been a relevant type of misconduct and we say there is the Court of Disputed Returns contemplated by the founding fathers and provided for in section 47.
The other way of looking at it is to say they are simple exceptions but one does not need to do that here because here, we would submit, when one looks at the consequences of the exercise of it, it is classic judicial power. I gave the examples of salaries and pensions. It would also apply to parliamentary privilege. If a person claimed immunity from a subpoena because the person was on the way to exercise a vote in Parliament, it would be an answer to that, judicially determinable, to say, "But the person is not a member", and where that question has been decided by the Court of Disputed Returns, that would determine the question in that Court. So, the Court of Disputed Returns exercises, we would submit, real judicial power and the mere fact that, historically, it may have been one of those exceptions like Fitzpatrick and Browne and the Parliament may have done it, cannot detract from that.
Certainly, there would be a real irony in saying that Chapter III says that only judicial power can be conferred on the Court. Here is something judicial that Parliament used to do. If that is conferred on the Court, it is in breach, and the reason for that is that because Parliament used to do it, it is not judicial even though every indicium suggests that it is. With respect, there is a huge logical gap in taking that approach.
Now, we have referred in our submission to the various sections of the part which might be thought of as indicating the other view. That starts at page 10, paragraph 26 of our submissions and we deal with each of the sections which is said to be an indicium the other way. I will not go through those except to remind your Honours of the additional sections I have referred to and repeat the arguments I have put in relation to them. As I say, we put in the alternative, (a) that it is judicial power, or (b) if it is not, it is an exception like the other three exceptions we have referred to.
That leaves two very, very short matters. The first concerns the form of orders. That will be dealt with by my learned friend, Mr Swan. I only want to say this, that there may be a procedural issue your Honours ought to consider. There has not been, as I understand it - and I say this subject to correction - a formal order that the two petitions be heard together. Of course, one could not make conflicting orders on the two petitions, so submissions in relation to what orders should be made really need to be made in both petitions, so your Honours can determine what order is appropriate. But we adopt what is going to be said by Mr Swan in relation to that subject matter.
The final matter concerns costs. I am in your Honours' hands whether your Honours wish me to deal with costs now or at the end of the argument.
GLEESON CJ: Yes, go ahead now.
MR BENNETT: Yes. What I wish to say about costs is this, that although there is a broad power to order that costs in these proceedings be paid by the Commonwealth, that is a power we would submit that ought not normally to be exercised unless there is some reason for doing it.
GUMMOW J: What section is that, Mr Solicitor?
MR BENNETT: There are two provisions. There is a general provision in section 371.
GAUDRON J: Why would one not think that the purpose of that provision was so that a candidate was not himself or herself liable for costs unless it as a general rule was not to be held liable for his or her costs.
MR BENNETT: Yes, it is section 360(4) which is the relevant one. Your Honour, it is qualified by the words "where the Court considers it appropriate to do so", so if one had, for example, a candidate who was clearly an undischarged bankrupt who stood and there was a proceeding of this type, there would be - - -
GAUDRON J: On the other hand, if the candidate is successful and is subject to, perhaps, a frivolous petition?
MR BENNETT: It has been said, your Honour, where the candidate is successful and there is a petition and the petitioner is impecunious, that is an appropriate matter for the Court to take into account in making an order under this section.
GLEESON CJ: But here the dispute has arisen out of a genuine doubt about the meaning of the Constitution and the meaning of a Commonwealth statute. Is this not a case in which costs should be out of the estate?
MR BENNETT: Your Honour, we would submit there is - first of all, in relation to the constitutional question, that is a matter which the first respondent has chosen to raise and if our arguments on that are rejected, there is no reason why the costs of that question should be imposed on the Commonwealth. It is not the practice of this Court to impose costs on the Commonwealth where a constitutional question arises merely because of the sort of factor your Honour is referring to.
CALLINAN J: You are not suggesting that if the first respondent fails, she should pay the Commonwealth's costs?
MR BENNETT: No, your Honour. I do not seek an order for costs against anyone, I am an intervener.
CALLINAN J: You are urging, however, that there should be no order in favour of the first respondent if she fails against the Commonwealth?
MR BENNETT: That is what I am urging, your Honour.
CALLINAN J: Even after Budget night that strikes me as an extraordinary submission, Mr Bennett, to be made by the Commonwealth.
MR BENNETT: Your Honour, the Court has a discretion and it is a question of whether the Court thinks it is appropriate and the mere fact of having failed is not appropriate. Of course, your Honours have been directed to section 339. There may be a defence under that section and your Honours of course do not determine that, do not need to determine that. But there is a point of view which says this is a matter brought to the candidate's attention and which she chose at her risk to ignore.
CALLINAN J: I understand the submission.
MR BENNETT: Similarly, in relation to the petitioner's costs - - -
GAUDRON J: From my point of view, you should address consideration that it looks as though one half of the argument at least is concerned with matters relating to the effect of the Act - perhaps more than one half.
MR BENNETT: Yes.
GAUDRON J: The qualification is a very small issue in terms of the time that argument has been so far.
MR BENNETT: Yes.
GAUDRON J: Here is an Act, the deficiencies of which have been drawn to the attention of the Commonwealth in litigation for many years. By "deficiencies", I include ambiguities and uncertainties.
MR BENNETT: That has not been a factor which, in normal litigation, has justified this sort of order.
GAUDRON J: No, but in the Court of Disputed Returns - I am saying this has been a matter that has been drawn to the attention of people in the Court of Disputed Returns. I have done it myself and I know others have. It is an Act that people have been content, more or less, to leave as it is with little thought as to how it operates.
MR BENNETT: Your Honour, I do not want to spend a lot of time on the argument. What we submit is that that is not a relevant consideration. The relevant considerations, in the normal case, are: has the Electoral Officer made a mistake, or the Electoral Commission made a mistake, and therefore it is fair the Commonwealth should pay for it? That is the normal reason for making an order under that section and the type of consideration being referred to.
GAUDRON J: But was it not Mr Barton, himself, who pointed out in the 1907 debates that he was opposed to the measure because if it were left with the Parliament, it would not cost the candidates anything like it would cost the candidates if the matter were to come to this Court.
MR BENNETT: Your Honour, if that had been the criterion, the section would have said "the costs shall be paid by the Commonwealth unless the Court makes an order to the contrary". It has not said that and we must act on the words there. In relation to the petitioners' costs, we would submit the position is a fortiori, that those costs should not be paid by the Commonwealth. Again, of course, it may depend to some extent on the result. May it please the Court.
GLEESON CJ: Thank you Mr Solicitor. Yes, Mr Swan.
MR BENNETT: I should just say to your Honour in relation to one matter that I am instructed formally to put this submission, contrary to what I accepted from your Honour Justice Gummow earlier, that a section 46 claim can only succeed if there has been a prior determination by the Court, or by Parliament.
GAUDRON J: You are instructed to put that?
MR BENNETT: Yes, I do not propose to say any more about it, except that.
GUMMOW J: No.
MR BENNETT: If the Court pleases.
GLEESON CJ: Yes, Mr Swan.
MR SWAN: If the Court pleases, the second respondent, the Australian Electoral Commission, adopts the submissions on behalf of the Attorney-General in relation to question (a). We make no submissions on questions (b) and (c). We have put in written submissions in relation to questions (d), (e) and (f). Now, in this particular case, Sue v Hill, as I understand it, as the second respondent understands it, there is no dispute as to the appropriate relief. I submit that the case of In re Wood (1988) 165 CLR - - -
HAYNE J: I think it may be 167, Mr Swan.
MR SWAN: Yes. That is one of the pages to which I will refer, your Honour.
HAYNE J: No, volume 167.
MR SWAN: Volume 167. Yes, it begins at page 145. In that case, the conclusion of the Court was that the appropriate relief was a re-count rather than to direct that another election take place. We submit that that is the appropriate relief in this case, having cited re Wood as the authority for that proposition.
KIRBY J: Yes, but if there were any risk that the wish of the electors of Queensland should be defeated, would that not be a matter in respect of the party to which the first respondent is associated?
MR SWAN: In my submission, your Honour, by conducting a re-count in accordance with the procedure adopted in In re Wood, the will of the people of Queensland, the will of the electorate, will be given effect to according to the law, and that is all that the electors in Queensland can expect.
McHUGH J: Well, that seems to have regard to the legal forms or technicalities. May it not be the case that there would be people who decided to give their first vote to One Nation as a protest and then gave preferences to members of the other political parties, major political parties, and if they had known that Mrs Hill was disqualified, if that turns out to be the case, they would have voted for the next One Nation candidate?
MR SWAN: Your Honour, the answer to that question would depend upon how they decided to lodge their protest vote. If it was a protest vote to vote for One Nation, then the means by which they can do that is to mark a square above the line in accordance with section 239(2) of the Act. If they wish to make the protest by marking the square below the line against Heather Hill's name and putting a 1 there and putting a 2 against Mr Harris's name, then that has the same effect in terms of the procedure which was directed in In re Wood, reflecting the will of the people.
If, however, they chose to make their protest by voting Heather Hill 1 below the line and putting the 2 in a candidate in some group other than One Nation candidate, then, to that extent, a re-count will not necessarily produce exactly the same result in terms of the number of votes which candidates get, but, in my submission - and I will cite the Court some authority from Sykes v Cleary in relation to this - there is a very high degree of probability that a protest vote such as your Honour postulates would be registered either by voting above the line 1 for the One Nation group, or voting 1 below the line for Heather Hill and then following in preferential order, 2, 3, 4, 5, for the other One Nation candidates, and then possibly, if they did not want to follow the One Nation group voting ticket, voting for some other political grouping than that allocated as the next preferences on the group voting ticket for One Nation.
McHUGH J: But everything may depend upon how many votes are the difference. If we are talking about a handful of votes which may make the difference between the seventh or eighth or whatever the candidate is who is elected, then it may make a great deal of difference. I mean, people may be elected who really would not have been elected.
MR SWAN: Can I refer your Honours to the decision of the Court in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 and the particular passage to which I wish to refer you is at page 102 where the three Judges, Chief Justice Mason and Justices Toohey and McHugh, were comparing the Sykes v Cleary situation, a House of Representatives election, with In re Wood and, in effect, with respect, indicating why they come to a different conclusion in Sykes v Cleary than the orders that were made in In re Wood and about point 2 on page 102 they refer to In re Wood and say:
Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible.
KIRBY J: That is an indication of what the Court thought there on the evidence, and I think it was said at the beginning of argument yesterday that it seemed likely that that would be the result here; the petitioner conceded that that seemed likely. But, speaking for myself, it seems to me, with every respect to you, that the answer that that is what the electors of Queensland, that is the most that they can hope for, that the law take its course, does not defend the democratic principle. That is to say that the electors of Queensland overwhelmingly would have voted for a party. I think that is the common sense that we see reflected in the constitutional amendment of 1977, recognition that people do vote for groupings, and that if, in fact, there is a risk, a significant risk, that they may be frustrated in their will, that is to say the electors of Queensland, then that would be a very relevant consideration for the exercise of this Court's discretion as to what should then follow.
I recognise, of course, that it is extremely inconvenient, not so inconvenient in a House seat - extremely inconvenient and very expensive, and disruptive of the political process and the functioning of the Parliament in the Senate, but it is absolutely integral to the integrity of the Parliament that it should reflect the will of the people, and that today means ordinarily in the political parties.
MR SWAN: I submit, your Honour, with respect, that it is absolutely essential that the composition of the Parliament should reflect the will of the people. What their Honours appeared to be saying in that passage in Sykes v Cleary, was - and they were not making this pronouncement on evidence that was before them in the Sykes v Cleary Case, they were making it on the basis of the principles set out in In re Wood.
McHUGH J: I know, but we distinguished re Wood, and we made an order which is the contrary to what you want us to do in this particular case. May it not be more appropriate to determine the substantive issues in this case, and if it turns out that Mrs Hill is not eligible, then evidence can be put on as to what the result of a re-count was likely to be so that the Court could be better informed as to what would be the appropriate decision. If it is a clear case, then - - -
MR SWAN: Could I just clarify what your Honour is suggesting. Are you suggesting that the Court make a finding about the eligibility of the candidate and then adjourn, having given a direction to the Electoral Commission to conduct a re-count to find out what the result is?
McHUGH J: That may be, yes; or to put on evidence as to what the likely outcome is likely to be.
MR SWAN: I suppose that could be done, your Honour.
HAYNE J: I wonder if we can examine the utility of it in this way: the problem emerges if, but only if, the vote is close. Is that proposition acceptable?
MR SWAN: I certainly see the sense in that proposition, your Honour.
HAYNE J: If the vote is close, on what basis can anyone assume that party, or absence of party, was the motivating force for the, by hypothesis, relatively few people whose votes make the difference? Is it not exactly that kind of inquiry that would bring this Court into the middle of a peculiarly and particularly political dispute rather than the application of the rule of law?
MR SWAN: Your Honour, with respect, all I can offer in response to that is that the particular details of the voting in the election In re Wood did not appear to play any part in the reasoning of the Court in that case and that factor is certainly not adverted to by the passage which I have read from Sykes v Cleary. The three Judges whose statement I read were making that statement in order to distinguish the House of Representatives election which they were then dealing with from the position with the Senate election and they considered that it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of this group and there is nothing about the case of Heather Hill which makes that any different.
All that one can say is that there is a high degree of probability that the voters would have voted the same way if Mrs Hill had not had her name on the ballot paper.
GAUDRON J: But why do we not just work on the assumption that in a system such as which operates if a vote for one person does not count, the vote for number 2 does? Is that not all you have got to do? Is that not what it is all about?
MR SWAN: With respect, your Honour, I agree.
KIRBY J: I realise that views can differ on this and I have every respect for the contrary view but the other view is that the integrity of the political process entered Australia as it is practised, should take into account the party alignments of candidates. I mean, it is reflected in the Constitution, now, by the amendments of 1977 and, therefore, if we are looking at the consequences of setting aside this election, it is at least relevant to my exercise of discretion that it should be set aside on a basis that does not frustrate the will of the electors of Queensland reflected in their vote.
MR SWAN: Yes, your Honour. In respect of that amendment to section 15 - that is the one I understand your Honour is referring to - section 15 of the Constitution, that amendment was made 11 years before the decision In re Wood and the Court In re Wood particularly adverted to the mechanism under section 15 as one of the possible means that had been put forward of resolving the issue and they decided that it was inappropriate because the position had not become vacant, in terms of section 15, because it had not been filled because the election had not been completed.
KIRBY J: I see how the problem arises but the theory behind the amendment in 1977 is to recognise the realities of politics. We can put our blinkers on and forget about those realities, if we want to, but if we are looking at the realities which the people agreed to in the amendment of 1977 that a very large percentage of people vote for parties - I mean, it was reflected in the recent New South Wales election, for example - and, that if that is the case then if the result of setting aside the election of Mrs Hill were that a re-count would result in the election of a person from a different party then that would frustrate the will of the electors of Queensland, at least in my view.
MR SWAN: Your Honour, could I pick up a couple of points arising out of what you have said? Firstly, the best approximation that the people of Queensland will get to the will they expressed on 3 October is what is recorded on the ballot papers on 3 October 1998. That is the best approximation you will get and the best approximation out of that information that you will get is is the procedure directed In re Wood, that is, ignore Heather Hill's name on the ballot paper and go to the preferences marked 2 on the ballot papers where Heather Hill had one against her name, including the group voting ticket votes above the line.
KIRBY J: Do we know what percentage were group voting tickets? Is that known? Is that within the data that the Court has?
MR SWAN: In the case stated book in Sue v Hill, that information is not there in a form that can be - - -
GUMMOW J: Well, we cannot receive evidence, can we? This is the same case.
GLEESON CJ: Would there be capacity in the Court to answer one of these questions by saying, "Before we answer this question, we would like to know what the practical result is going to be of the answer that we give"? The Court could answer a question "inconvenient to answer", or "not appropriate to answer", but it could hardly answer a question, "This question will be answered after some further evidence has been put on it to tell us what the political consequences of the answer will be".
MR SWAN: As a matter of history, your Honour, the case In re Wood was dealt with in various stages but the order that was given, and the directions that were given, came at what I understand to have been the second stage, but that was after the direction had been given to conduct the particular process directed in that case. The third stage was simply the Electoral Commission reporting back as to the result of the re-count that had already been directed on the basis that Mr Wood had been declared not duly elected. So, in that case, the decision that the candidate was not duly elected was made before a decision was made as to how to remedy the situation.
GLEESON CJ: If it were thought that there was a discretion to be exercised, which should be exercised on the basis of further information or evidence of the kind that is mentioned, then that would be a discretion in the Court of Disputed Returns, not in this Court, would it not?
MR SWAN: With respect, I submit your Honour is correct.
KIRBY J: Would there be an appeal to this Court from that decision?
MR SWAN: In terms of the relief? I have not prepared an answer on that question, your Honour. If you would give me leave to - - -
KIRBY J: By the Act, there would not be and that is a question as to whether that is a valid provision, at least it is a question in my mind.
MR SWAN: I understand. The second point arising out of what your Honour said earlier, was the question of the integrity of the process and that is a matter which my client is particularly concerned about. The submission is that any re-count conducted for any purpose arising out of these proceedings, must be seen to be properly conducted, a transparent process in the presence of scrutineers and fully accountable, as with the original election.
KIRBY J: The question is not the technical counting, the question is whether or not the outcome of that would frustrate the expressed will of the electors of Queensland, at least in a very large proportion, that they were voting for the One Nation party, candidate number 1, and it happened to be Mrs Hill.
MR SWAN: The direction in which I perceive your Honour is attempting to direct me, have all my attention, is to have a look at the results of the election and see what can be gained from that. Am I correct in that understanding?
GAUDRON J: Really, a case has been stated. We have to deal with the questions on the basis of the case stated.
MR SWAN: Yes, there is - - -
GAUDRON J: There may be evidentiary dispute of matters outside the case stated.
GLEESON CJ: Yes, all these facts in the case stated were, in fact, agreed facts.
MR SWAN: That is correct, yes.
GLEESON CJ: That is how they got in to the case stated. There has never been any hearing or examination of evidence in this matter.
MR SWAN: Your Honour, I think, in terms of what is in the case stated, there are two things I would submit. Firstly, annexure "D" on page 26 of the case stated book sets out "Result of the Transfer and Distribution of Preferences" up to and as at count 4, and there are figures in that which can give some idea - it is not an entirely accurate idea on this document - as to the strength of second preferences going from Heather Hill to the next One Nation candidate, and that appears in the column titled "Votes Transfd".
McHUGH J: What page is that, Mr Swan?
MR SWAN: Page 26, your Honour.
KIRBY J: It is very hard for a non-statistician to understand that page.
MR SWAN: There are only two figures to which I wish to draw your attention. There is the figure of -9,658 in the line in which on the left Heather Hill's name is. That, in effect, is the surplus that she achieved above the quota, and you can verify that by - the quota appears at the top right of that sheet, 286,245, and in the column "First Preference Votes" to the left shows 295,903, the surplus being 9,658.
From that figure a transfer value, pursuant to the appropriate subsection of section 273, is calculated by using that figure and the quota, and from that you establish a transfer value. That is a matter of the provisions of section 273. That transfer value is applied to the number of ballot papers on which Hill was marked 1 and Harris, the second One Nation candidate, was marked 2. Multiply the transfer value by the number of ballot papers in that form, gives votes transferred from Hill to Harris of 9,577, which is approximately 99 per cent of the ballot papers marked "1 Hill, 2 Harris". Most of those are above the line votes where the group ticket voting operated. Now, the detail of that is more easily gained from the case stated book in Sharples v Hill.
GLEESON CJ: But what are you telling us, what is the information you are imparting?
MR SWAN: That that 99 per cent which I mentioned is a reasonably reliable indication of the strength of the flow of preferences from Heather Hill to the next One Nation candidate.
GLEESON CJ: Are you telling us that, on the available information in that document, it looks as though 99 per cent of people who voted 1 for Heather Hill voted 2 for the second person on the One Nation ticket?
MR SWAN: Yes, your Honour. I submit that that shows that there is a high degree of probability that that is what happened. There are some complications which may arise out of how the below the line votes were exactly marked, and I deal with this in our written submissions. For example, if below the line someone marked a vote 1 Hill, 2 Harris, and then 2 for someone else, that is a valid vote pursuant to the Act for Heather Hill, if she were eligible. But if you adopt the directions in In re Wood, there would then be, against Harris and some other candidate, the figures 2, which should be treated as 1 which makes it an informal vote, and that is why complete reliance cannot be placed on those figures there. However, the degree of probability is more easier ascertained by referring to the figures in the case stated in Sharples v Hill.
But the point which I submit should be borne in mind as a very important point is this, that the only way of being certain how many votes Mr Harris would get if the directions in In re Wood were applied, is to conduct a re-count, and that re-count, as I submitted before, should be scrutinised in the appropriate way, totally transparent and totally accountable.
GLEESON CJ: Your proposition, as I understand it - correct me if I am wrong - is that the inference drawn in Sykes v Cleary and referred to on page 102 to which you referred us earlier, is borne out by the information appearing on the document to which you have just referred us.
MR SWAN: Precisely, your Honour, yes. There is, in this case, a very high degree of probability that what your Honours referred to there will occur.
KIRBY J: Well thank you very much for that, that does help me.
McHUGH J: In addition, you can rely on the passage at page 166 in In re Wood where, in the last sentence in the first paragraph on that page, their Honours say it is:
the true legal intent of the voters.....can be ascertained.
And the context makes it clear that their intent is to be ascertained in accordance with the way they vote; that is, 1, 2 and 3, et cetera. The fact they may have had reservations or may have voted in a different way is beside the point.
MR SWAN: Yes, that is my submission, your Honour, yes.
GLEESON CJ: Yes.
MR SWAN: Your Honour, just to drive the point home, I could, with your permission, refer to the Sharples v Hill case stated book, where there are more detailed figures.
GLEESON CJ: Just give us the page reference.
MR SWAN: Yes, your Honour. It is in paragraph 15(b) of the case stated.
GLEESON CJ: Thank you very much.
MR SWAN: I have no further submissions, your Honours.
GLEESON CJ: Thank you, Mr Swan. Yes, Mr Ellicott. Mr Ellicott, could I ask you a question about time, just so that we can work out where we are heading?MR ELLICOTT: Yes, your Honour. I was going to ask your Honour a question.
GLEESON CJ: Well it may have an effect on tomorrow's listing, that is all. How long do you expect to be?
MR ELLICOTT: I was going to try and finish today, but the first question I was - - -
GUMMOW J: Well, there are a number of issues, Mr Ellicott.
MR ELLICOTT: The first question I was going to ask your Honour was whether today was all I had, because that was our - - -
GLEESON CJ: No, that is not correct. We will sit on this case tomorrow, if necessary.
MR ELLICOTT: If your Honour please.
GLEESON CJ: We will have a look ourselves at lunchtime about what, if anything, we will do about the next case in the list.
MR ELLICOTT: If your Honour pleases. I would think, with that indication, that the argument that I would deliver will go into tomorrow, and I would have thought this matter ought to finish, say by lunchtime tomorrow, if not - - -
GLEESON CJ: Yes, well let us try and head for that situation.
MR ELLICOTT: If your Honour pleases. Your Honours, if I can just address that last question, whilst it is in your Honours' minds. We, in answering question (d), your Honours will notice we said, in the light of In re Wood it would appear that the question must be answered "No". It is a rather guarded statement. We would submit that if the Court is in any doubt, any real doubt, that is, about whether or not there should be another election, it being a very significant and costly matter, the appropriate course would be, not to answer that question (d) "No", but to, at this stage, indicate that the matter should be the subject of further evidence, however the Court might see it.
Now, as your Honour the Chief Justice has indicated, there has been no evidence, of such. There has been a statement of facts, and I suppose it could be said the parties have been content to let the matter come here on that basis. But it probably also raises another question which, I must say, I do not think it probably matters in the long run, but I do not quite, in my own mind, know what the answer is and that is, "Am I addressing the High Court of Australia" full stop, or "Am I addressing the High Court of Australia sitting as a Court of Disputed Returns"?
Now, if one looks at the statute, one might think that the Court of Disputed Returns is self-contained; you cannot go outside it, there can be no appeal, and that therefore the Court, as the Court of Disputed Returns, must determine the matter finally, exclusively. Now, that does not mean, however, that the Court, as a Court of Disputed Returns, cannot change its numbers and therefore sit together or sit as one and, on that basis, one might conclude that this Court is sitting now as the Court of Disputed Returns. That means, of course, that there could be no - - -
GAUDRON J: What do you mean exactly by that expression, Mr Ellicott? Do you mean that we are a separate tribunal?
MR ELLICOTT: Yes, and that you - - -
GAUDRON J: To which we have no commissions?
MR ELLICOTT: No, I do not mean that. I mean this, that the jurisdiction - and I have to put submissions in relation to it -is one that is conferred on the High Court as a Court of Disputed Returns. That is what the section, I think, says. It thereafter speaks of the Court as the Court of Disputed Returns, and when a matter comes - query whether it is a matter - but when a question comes before the Court of Disputed Returns, then the Court will consider whether or not it has jurisdiction to deal with the petition, it can consider questions of judicial power and it can ask the question, if it has the power to do so: is the person concerned a citizen of a foreign power? But it decides those questions and that is the end of it, and there is no appeal, and then the matter goes back to the Parliament, probably in this case the Senate.
KIRBY J: I notice that the petition is intituled "in the High Court of Australia sitting as the Court of Disputed Returns".
MR ELLICOTT: Yes.
KIRBY J: The case stated is similarly intituled and it states that "Pursuant to section 18 of the Judiciary Act, the following facts are stated and questions reserved for the consideration of the Full Court".
MR ELLICOTT: Yes.
KIRBY J: That appears to be the consideration of the Full Court of the High Court of Australia and the title, at least on my documentation, makes no reference today to the Court of Disputed Returns.
MR ELLICOTT: No. I do not, if I may say so, think it matters because it may affect your Honours' sense of dignity that you are not sitting as the High Court, but you are sitting as the High Court in the form of the Court of Disputed Returns, but it is important perhaps to decide one way or the other what the seven Justices of the High Court are exercising today. Now - - -
GUMMOW J: I just wonder if this - is there any submission that this Court of Disputed Returns is a court created under section 72? Surely not.
MR ELLICOTT: No. I will be submitting that it is outside power - and I will come to this in order - but I will be submitting that the Parliament cannot take hold of this Court and give it another name, in effect, and give it this sort of jurisdiction. It just cannot do that. It cannot do it under section 76(ii). It can confer original jurisdiction in the High Court but the High Court has to be the master of its own procedure, and it must be able to exercise all the powers, statutory and inherent, that the High Court can exercise. But to take the High Court, the supreme body, the one that determines the Constitution, and call it the Court of Disputed Returns, I would submit is outside the power of Parliament. I take that point at the beginning perhaps to underscore that. It is not just a question of judicial power as such conferred on the High Court. It is a question of whether the Parliament can take the Court and call it something else and then give it what would otherwise be quite clearly, historically, a jurisdiction which was exercised by Parliament since time immemorial as part of the Westminster system.
That being so - and I will develop it a little later - one has to ask the question - I am sort of forced to ask it even though it does not matter in terms of, if I can call it, numbers, or the capacity of the Court, or the authority of what your Honours say, it is important, in a sense, to the argument, for your Honours to consider, "Why are we here? What are we doing? What is our function?". Does it come out of the Constitution or is it derived out of this Division 1 of the Electoral Act?
CALLINAN J: Mr Ellicott, do you say that the jurisdiction could have been conferred upon some non-judicial tribunal established by the Parliament?
MR ELLICOTT: Your Honour, when one comes to ask and answer questions like question (d), then there is very good reason - I do not mean any offence - but from time to time, people who have been sitting in Parliament do sit on the Bench of this Court, and that, some people have thought was a good thing; others have thought it was a bad thing. But, one would have thought the best body to deal with questions about disputed elections, parliaments having thought, as Sir Edmund Barton said, that this jurisdiction ought to be exercised by people who are impartial and not by politicians in committee, because they involve party matters, that the appropriate course would be to select out people - and again I mean no offence - who have had some knowledge of the Electoral Act and the running of the political system, and who are able to deal with these matters. Question (d) could be such a matter. I do not know this but, for instance, if my client had not been No 1 on the ticket, would Mr Harris have been? What is the effect of being able to vote 1 in the box instead of, as first occurred, I think, in 1975, having old ladies kneeling down in the electoral booths putting 1 to 73, I think it was, against the names of all these people.
KIRBY J: Old men, too, no doubt.
MR ELLICOTT: I felt for the old ladies, even though they were voting for me. Those questions that can arise under (d), we would submit, and the questions that arise in the course of a disputed election claim, are peculiar to a particular knowledge and background, and therefore, we would say, a tribunal is the apt body. Crass political matters ought to be kept out of any tribunal. But a knowledge of the political process; the effect in a particular situation, be it party or independent, those are matters which do have a certain degree of, I will call it expertise, around them.
CALLINAN J: Mr Ellicott, the case of Webb v Hanlon in Queensland which, of course, was decided in the first instance by a judge of the Supreme Court sitting as an election tribunal, had enormous ramifications and was the cause of great difficulties to the judiciary in Queensland for 20, 30 years. Indeed, some people say that its effects remain. It does highlight the undesirability of judicial involvement in this process.
MR ELLICOTT: That is always a possibility, that some matter might come to this Court which does raise a question in relation to some figure, that is a matter of great controversy.
KIRBY J: But as against that, this Court has been exercising this jurisdiction for a century, and has been resolving these matters, and in a sense is thereby in a relationship to Parliament as a Court of Disputed Returns, being the supreme judicial body being there to resolve disputes concerning the supreme parliamentary body. So that that, historically, has been what we have done in Australia for a century.
MR ELLICOTT: Yes, your Honour. I cannot say that there has been any great scandal that has emerged out of any decision of this Court sitting as a Court of Disputed Returns or any great debate - - -
McHUGH J: There was, you will remember, Mr Ellicott, rightly or wrongly, considerable criticism in a decision In re Webster.
MR ELLICOTT: Yes. I do remember. That is an indication of one matter which admittedly did cause controversy and political comment and still does when people want to raise it.
GLEESON CJ: I think it was decided by a member of the Court with political experience.
MR ELLICOTT: Yes, that is right. Now, your Honours, can I get back on what I call the track in the sense that can I now deal with the issues as they arise, or the questions, as they arise. In relation to the petition, we say that a petition under Division 1 in this case is not the appropriate vehicle to raise questions of qualifications. Now, your Honours have been through all the arguments, more or less, and I probably will not add any more but to collect them, although I do hope to put them in the way in which we would see those matters arise.
The origin is section 47. We have to go to that. In a sense, that is an overarching provision. It is overarching when we come to look at the Electoral Act itself because the Electoral Act picks up its words and uses them. It has three matters: qualification, vacancy and disputed election. They are three, we would say, disparate matters and they find their origin or their content, perhaps is a better word, in other provisions of the Constitution. For instance, 16, which is the qualification of senators and picks up section 34, 43, 44, and I have to go back to 15 because 15 raises a question of qualification as well as mode of appointment or choice. When we come to section 353 some of your Honours have noted that section 15 is picked up and that has to be dealt with but 15, as your Honours will recall, was designed to ensure that if somebody died or resigned, et cetera, that the person chosen in that person's place would come from the same political party.
Now, there are issues of qualification in section 15 and we say that is another provision of the Constitution that fits into the question of qualification. Vacancy relates to section 45. My friend, the learned Solicitor-General, referred to the word "suspension" and I do not know whether he intended that to come within the bounds of section 47. If he did, I would submit that it does not, it is to be dealt with under 49, "The powers, privileges, and immunities" et cetera, "of Parliament". That is where suspension comes in and that is where the Parliament traditionally has dealt with that issue, but nothing turns on that in this case. They are three, we say, disparate matters. Disputed elections relates to the provisions of the Constitution and the parliamentary provisions which govern the electoral process.
GLEESON CJ: That is the question, is it not? It is put against you by the Solicitor-General for the Commonwealth that whilst questions respecting qualifications might arise outside the context of a disputed election, they can also arise in the context of a disputed election.
MR ELLICOTT: Yes, and we say, in answer to that, first of all, "disputed election" relates to matters affecting the conduct of the election which have, as a matter of history, I think you will find, been described as "illegal practices". Now, in order to determine whether or not matters of qualification have been sought to be put by this Act into the area of disputed election, then one has to look at the Act. One has to determine first what "disputed election" means - - -
GUMMOW J: What does the word "return" add to it, and what is the content of the word "validity"? That is what I do not understand at the moment, in 353(1). Section 353(1) says:
The validity of any election or return may be disputed -
How does one ascertain the criterion for validity or invalidity?
MR ELLICOTT: Section 283:
In elections for the Senate, the Australian Electoral Officer shall, as soon as conveniently may be after the result.....
(a) at the place of nomination, or at another place determined.....declare the result of the election and the names of the candidates elected;
(b) by a signed indorsement on the writ certify the names of the candidates -
That is the return of the writ - - -
KIRBY J: What section was that?
MR ELLICOTT: That is 283.
GUMMOW J: That picks up the last words of section 7 of the Constitution.
MR ELLICOTT: Section 7 of the Constitution, and the Governor certifies who the senators are and they are persons, we would submit, having regard to something Justice Hayne said yesterday, they are the persons who are amongst those who can be considered to see whether or not they are qualified. In other words, when they knock on the door of the Senate and want to sit, the Senate is entitled, after a period - no doubt, they would be sworn in - and then a question would arise in the Senate with a senator.
GUMMOW J: But what is the content of the word "validity" in section 353(1)? That is what is being disputed.
MR ELLICOTT: It is "The validity of an election or return", well, if - - -
GUMMOW J: Validity by what criteria?
MR ELLICOTT: By reference to the conduct of an illegal practice - "the commission", I think the word is, of an illegal practice.
GUMMOW J: And nothing else?
MR ELLICOTT: And nothing else, and that is what her Honour decided in Hudson v Lee, as we read Hudson v Lee.
GAUDRON J: Yes, but I was dealing only with legal practices, was I not? The case was only concerned with alleged illegal practices.
MR ELLICOTT: Yes, but the effect of, we would submit, with respect, your Honour's decision in that case was to say that section 362 was self-contained. That is to say that it circumscribed the matters which could be raised under Division 1 - - -
GUMMOW J: That would leave very little work to do, treating section 15 as involving an election, if one is looking simply at - - -
MR ELLICOTT: Very little work to do, but there is some work to do.
GAUDRON J: And it would be inconsistent with Sykes v Cleary and in In re Wood?
MR ELLICOTT: I understand that I have to confront the decision of Justice Dawson in Sykes v Cleary but not the decision in In re Wood, except some words which were, we would submit, I will not say a throwaway line, but were obiter because the Court really did not have to decide it, which said that they are not mutually exclusive. If you look at the passage, and I will take your Honours to the passage later, your Honours will see where they said that, in effect, in 1902 the Parliament had reserved to itself questions of qualifications and vacancy and it was not until 1907 that those questions were referred.
But so far as the validity of any election or return is concerned, then we would submit that that is to be determined in accordance with the other sections. In other words, the words are not at large, and the other sections I will come to, but they would include section 362. What is very important about 353(1) are the words "and not otherwise":
The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
If qualifications can come within the term "the validity of any election or return.....and not otherwise", if it can, then we would submit that that would be completely and utterly out of step with Division 2.
KIRBY J: But is not that phrase designed to say you can dispute it in the Court of Disputed Returns, but you cannot dispute it in a Supreme Court or some other court?
MR ELLICOTT: "The validity may be disputed by petition and not otherwise", and we would submit that those words "and not otherwise", they may play the part that your Honour has put to me, but I would submit they are also stressing something about the relationship between Division 1 and Division 2.
Something was said about section 46. Indeed, something was said by the Solicitor-General in relation to section 46 and withdrawn. I do not know whether they saw the light but we would submit that the Constitution ought to be interpreted as clear. Your Honours may not think it is, but I would submit that when you have a provision like 47 that commits to the Parliament these questions - not to the High Court, but until Parliament otherwise provides to the Parliament - then it would be inconsistent to think that some Court of Petty Sessions at Paddington could decide whether or not a senator was qualified. In other words, when it says:
any person declared by this Constitution to be incapable of sitting -
those words pick up section 47, and they mean, "When, in accordance with this Constitution, a person is declared to be incapable, then the person can be sued".
GAUDRON J: Contrary of that, comes though, from the self-executing nature of section 45, and the absolute embargo in section 44.
MR ELLICOTT: Yes, but the question still has to be decided whether he is, for instance, bankrupt, and that may be a matter that does not have to be referred, say, to the Court of Disputed Returns, be it the High Court or otherwise. That is a matter that the Parliament or the Senate might decide for itself, and say, "It is pretty clear, Mr X, you are bankrupt, and your seat has thereupon become vacant". In that way the Senate would decide it. Thereafter, somebody could sue if he was intransigent, or if he was not escorted out of the Senate every time he attempted to sit. But, so far as 46 is concerned, although 45 in a sense is self-operating, 47 still commits to the Senate, or the House, the question as to whether a vacancy has occurred. It would obviously be odd if somebody was sued, who was a senator, who had crossed one of those provisions in 45, and the Senate, itself, had not dealt with it. So that we would submit that 46 does not start to operate until the question has arisen and been determined in accordance with 47, which could be by a Court of Disputed Returns.
Your Honours, I think will know, that the Common Informers (Parliamentary Disqualifications) Act was passed, and is now the basis upon which section 46 operates, that is, "Until the Parliament otherwise provides".
GUMMOW J: Yes, section 3 of that Act does not seem to be limited so that it operates only consequent upon a jurisdictional fact, namely, a determination by the chamber in question that this individual, within the meaning of the Constitution, should not be there.
MR ELLICOTT: Your Honour, I have stressed what we say is the purpose, or certainly one of the purposes, of the words "and not otherwise" in section 353. Can I take your Honours to section 353(2)?
KIRBY J: Just before you go past (1), why is not a fair reading of it that you do have to give weight to the word "return"; that therefore the Court of Disputed Returns has jurisdiction in respect of the validity of a return; that a return is rendered invalid if the candidate is disqualified and that determining that at the quickest possible moment, even perhaps before the candidate takes a seat, is very important for the integrity of the chamber and that any elector should have the right to move the Court of Disputed Returns in order to have that matter of the validity of the return determined, but that is a high constitutional purpose.
MR ELLICOTT: Yes. The act of the return, that is, return of the writ, was really the Electoral Commissioner's authority or verification, and we would say no more - and I think there may be one in the stated case - is no more than his verification, which is most important, of course, that there has been an election and that this is the result. Now, if you want to attack that, you have to show some illegal practice in relation to the conduct of the election, but Parliament obviously had in mind that you could not leave the return, as it were, out of the line of fire, if you were attacking the election, because anything that struck down the election must necessarily affect the return, and the use of that phrase "return" in section 353 is no more than a reflection of whatever invalidity there was in the election itself.
KIRBY J: But it is a usual cannon of construction if Parliament uses two words, each has to have work to do, and different work to do, and therefore the return is doing work different from just the election.
MR ELLICOTT: Your Honour would appreciate that under section 7, in relation to the Senate:
The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
Now ordinarily, you might think, this process is finished by the time a petition comes about and therefore it has gone right through to the Senate and these are the persons elected - it has gone right through to the Governor-General, I mean, and these are the persons thought to be duly elected. Now the question of the validity of the return, which goes to the Governor-General, the validity of that, might be thought to be self-operating, if the question of the validity of the election alone was dealt with. In other words, that there might be some issue, such as you have set aside the election, but how can you set aside the return of the writ to the Governor-General? And the purpose of this is simply to make sure that the invalidity, or the control of the Court, over the process, goes right through to the point of the Governor-General. That is our submission in relation to that.
KIRBY J: Your submission does infer that the theory of the Act is that the disqualified candidate who is disqualified by the Constitution, not by anything else, can take his or her place in the chamber must do so, must be sworn, must in the nature of things have the opportunity to take votes in measures that come before the chamber, before the chamber can get around to deciding the issue of disqualification.
MR ELLICOTT: Not must. If an issue arises, then obviously the Senate is going to take, the Senate being what it is - of course in other days it may have been more leisurely - it is going to take note of every number that walks through the door, and therefore the question is going to arise very quickly and some arrangement is going to be made with that person as to whether or not he or she should assume the rights of a senator whilst that matter is over his or her head. If that person is not qualified or thought to be not qualified, then no doubt some arrangement will be made. It may be an arrangement, it may be a political arrangement, but it is not for the Court to - this is the difficulty of the jurisdiction. You cannot assume what would happen inside the Senate door, it is a political issue and it is one which will be determined by the political process. But whether the person votes may not matter in some cases, but - - -
KIRBY J: In the current situation it would matter.
MR ELLICOTT: It would matter and that is a reason why the political forces would find an answer but, with respect, it is not possible for any of your Honours to determine what the answer would be. But it does not - - -
KIRBY J: Yes, but we have to work on the assumption that a sworn senator could say, "Well, I don't care what you say, I am sworn to the office and I will discharge the office until I am removed from office".
MR ELLICOTT: The Senate can thereupon refer a question to this Court at that point, to the Court of Disputed Returns.
KIRBY J: That might take months.
MR ELLICOTT: It might, but section 46 comes along and it imposes a penalty and section 46 actually assumes that disqualified people will continue to sit and exercise their votes and if it becomes apparent that a person has voted in a particular matter which is a sensitive matter, well, the political process has to take hold of that and they will know that from the beginning and they will take whatever course they think is appropriate to deal with it. Section 46 presumes that something is going to happen like that because these people have done it in the past and it is not until a determination is made that they can be actually excluded from the process of Parliament.
GLEESON CJ: Is that a convenient time, Mr Ellicott?
MR ELLICOTT: May it please, your Honour.
GLEESON CJ: We will adjourn until 2 pm.
AT 1.00 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, I have dealt with 353. Could I take your Honours to 360 and 379 respectively? In relation to 360, I draw attention to subsection (1)(v) to (vii). Then, going to 379, "On the hearing of any reference", et cetera, the Court:
shall have the powers conferred by section 360 so far as they are applicable, and in addition thereto shall have power:
(a) to declare that any person was not qualified -
et cetera, declare "a vacancy". Now, that, we say, is a powerful indication that the two divisions are mutually exclusive and that any question that if it was intended that under Division 1 the question of qualification could be considered by the Court of Disputed Returns, then it would, indubitably, have had (a) to (c) in 379. It does not have it. The argument has only got to be stated to be made and we would submit that that is a powerful reason why the two divisions should be read as being mutually exclusive.
I thought I should deal with section 360(3) because it does have a discretion in it.
Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
Now, obviously, others might argue that that indicates that it may be exercised on some other ground. We would submit that subsection (3) is merely making the emphasis that those are the grounds upon which those particular matters may be exercised and on none other when you go to 360(2) but, if it had intended that it was a reference to more extended grounds, it would have said, we would submit, "without limiting the grounds conferred under this Act or in this Division", et cetera. It says:
Without limiting the powers conferred by this section - - -
GLEESON CJ: Do these provisions all go back to 1902?
MR ELLICOTT: I do not think that does, your Honour, but I will have that checked.
KIRBY J: We were promised a bundle of papers which would set out the progress of the relevant provisions of the Electoral Act 1902 , but I do not think they have arrived. I asked about them earlier and I was told earlier they were not there. I think that was Mr Finch who was going to supply those.
MR ELLICOTT: I see, yes. Well, your Honour, we do have a volume that does contain all the legislation. I will just have that issue checked and also the question whether those have arrived. So that section 360(3) is only an empowering provision. Section 362: this is the section which, on analysis, I think it is fair to say, led Justice Gaudron to say that the provisions of Division 1 are confined to matters of illegal practices, but just to get how that comes about:
(1) If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.
That is the end of it.
(2) No finding.....shall bar or prejudice any prosecution for any illegal practice.
(3) The Court.....shall not declare that any person returned as elected was not duly elected, or declare any election void:
(a) on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or
(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
Your Honours, clearly enough it would be odd if that were not an exclusive definition of the grounds, because one would have expected that if there were other grounds, similar provisions would have been contained. That is to say, probably, that the "election" shall not be "declared void", or a candidate declared not to have been "duly elected" unless the particular matter that was relied upon had affected the result of the election.
On that basis, we submit, and we submit it is the view expressed by Justice Gaudron, that in order to have a successful petition, one has to point to an illegal practice.
In answer to the question you asked, Chief Justice, 197 of the 1902 Act:
The Court of Disputed Returns shall sit as an open Court -
and those provisions were contained:
To declare that any person -
et cetera, in subparagraphs (iv), (v) and (vi). There had been added to 360, (iii), which is:
To grant to any party to a petition leave to inspect -
so, it was there, as were a number of other provisions which are contained in Division 1.
When one goes to 376, clearly enough, as has already been pointed out, the exact words of section 47 are used:
any question respecting the qualification of a senator or.....respecting a vacancy -
There is room for an argument that if section 47 is to be construed as it is, of course, then each of those matters in 47 are intended to cover different circumstances; that is to say they are mutually exclusive in themselves. We would say that is a reasonable and proper interpretation of 47.
If Division 1 does purport to deal with questions of qualification or vacancy, then that would be outside, we would submit, the meaning of the words "disputed election" in section 47. To put it another way, if Division 1 is there to deal with questions of the disputed election, then they should take their meaning from section 47. But so far as section 376 is concerned, then we would submit that they just pick up the words "qualification of a senator or of a member.....or respecting a vacancy in either House" out of section 47, and are intended to give effect to what Parliament considered appropriate.
It is important that it leaves a discretion in the Senate or the House in relation to matters of qualification. That is important in a political context. It is not only a matter of courtesy, no doubt - and politicians might want to explain it that way - but it is also a matter of politics in the sense that it would enable a discretion to be exercised, even on a question of qualification.
GLEESON CJ: Which is the section that confers the discretion or leaves the discretion there?
MR ELLICOTT: That is this section because it says it "may be referred".
GLEESON CJ: Of section 376?
MR ELLICOTT: Yes, "may be referred", so the Parliament has - - -
GLEESON CJ: That is a discretion to refer or not to refer.
MR ELLICOTT: Which means that that part of 47 is still operative.
GLEESON CJ: But what if the answer to the question is clear, so that there is no point in referring it to a Court of Disputed Returns. Does Parliament have a discretion to do nothing about it?
MR ELLICOTT: If the question is clear, Parliament has a discretion. This Court cannot touch the Parliament if it does not do anything about it. Now - - -
GLEESON CJ: Suppose, to use an example given earlier, Mrs O'Malley had had a press conference and said, "That child was born in the United States of America". Could Parliament have said, "We do not disbelieve Mrs O'Malley, but we do not choose to do anything about that"?
MR ELLICOTT: I would answer yes to that because there is nothing actually shocking about that, because section 47 is a constitutional provision and, just as the other organs of government are entrusted with powers and responsibilities, the Parliament is, and no doubt the Constitution assumes that the Parliament or the several Houses will act responsibly.
HAYNE J: But in the circumstances posited, does it also follow from your earlier submissions that section 46 could not bite because Parliament had not declared?
MR ELLICOTT: That is right, that is clear on the basis of our submission. That in itself again - one has to assume in a democratically based Constitution that the organs are going to act responsibly and not irresponsibly. What particular matters will govern the exercise of some vote or decision in Parliament, they are not necessarily crass political matters. They may be sensitive matters. It may be that, for all one knows - and I do not want to go beyond the statement - but it may be, for instance, that people have sat in Parliament who have dual citizenship. It may be, and Parliament has chosen to do nothing about it. That may be because Parliament has had a view about what section 44 means. One does not know, but at the end of the day there is a discretion which is not just exercised by reference to matters that courts would think ought to govern the situation.
CALLINAN J: Mr Ellicott, the reference might be of a very narrow question, it may not be a reference of the question or the issue which would conclusively decide the matter because it is any question respecting the qualifications of a senator. It might be a question much less than the ultimate question of disqualification itself.
MR ELLICOTT: Yes. Your Honour, I would anticipate that usually it would be the whole question but the section leaves it open to refer aspects of it. There may be, for instance, a straight - if they think the Court has judicial power, contrary to our submissions, that they will just refer a simple question of law.
CALLINAN J: Or a question of fact, even, to determine the facts.
MR ELLICOTT: Yes. But, the underlying importance is that what this does is leave the questions of qualification and vacancy to the several Houses of Parliament and that, in itself, against the background and the history of the Westminster system, is most important and my client, for instance, is not taking a mere point of procedure here. My client, if it should be the fact or the law that section 44 has somehow been offended, contrary to our submissions, then she is entitled to have that matter dealt with by the Senate and not by petition. That discretion is not unimportant.
HAYNE J: On the construction of sections 46 and 47 that you advance, what is the purpose of section 46 if it depends upon prior declaration by the relevant House?
MR ELLICOTT: Section 46 is there, we would submit, to make it clear to anybody who sits - and, of course, parliaments will decide this from time to time - that anybody who sits when they are disqualified but about whom a declaration has not yet been made or anybody who sits in defiance of a decision that they are disqualified will suffer a penalty. Now, in the latter case it is likely that they would be ejected from the particular House and they would not, therefore, have the opportunity to run up whatever it is per day, but, until the decision is made then it is a deterrent to them to try and exercise any of their rights, if hey had the rights, as a senator or a member. That is the purpose.
If Parliament found that were recalcitrant people who were always sitting when they were disqualified I have no doubt they would pass a law to provide that such people should pay $10,000 a day, or whatever it may be, in order to bring them into line, but it has, I suspect, never been a great problem. I think one common informer action was taken at some stage. In the last 30 years I just cannot recall it but I do recall a case arising.
GAUDRON J: Mr Ellicott, can I take you back to what I think you might have said in relation to 376? Do you suggest that under 376 the Senate, for example, could refer the question simply whether Ms Hill had taken reasonable steps to renounce her British citizenship and leave it as that, or are you suggesting the question has to be referred?
MR ELLICOTT: I am saying that normally the question would be referred. The section is open to the construction that a particular aspect of the question could be referred. That would be a question of fact, the question that your Honour just put to me.
GAUDRON J: What would you say as to that? Would that be a matter?
MR ELLICOTT: That would not be a matter but that is for another reason and that is because, we would submit,of Division 2, in any event, but it will not come up. We would submit that Division 2, consistent with the other submissions I am going to advance, but perhaps a stronger case of it is not a grant or not a conferral of judicial power. It is very close to In re Judiciary Act, or whatever it was, the one that sought an advisory opinion. This is very much along those lines. I was going to develop that argument a little later but that is what we would say about that.
KIRBY J: Your theory posits that, although a person might be plainly disqualified, eg, there may be an order from the Federal Court which makes it clear that the person is bankrupt, that the Senate in the face of that could simply decide not to do anything about it.
MR ELLICOTT: But if it was plain that it was, they could decide not to refer the question and to pass a resolution, and here one assumes they are going to act responsibly, that that person is disqualified and is no longer entitled to sit in the House or the Senate.
KIRBY J: But your theory is that they can also decide that they will simply ignore that fact, even though it is a constitutional prohibition and that there is nothing that an elector of the Commonwealth can do to require that the rule of law, which is the other foundation of our constitutional arrangement, as well as a democracy, will be obeyed. That seems an odd result.
MR ELLICOTT: The rule of law is the rule of law in the Constitution and, if the Constitution has left it to the wisdom of the Parliament to determine the matter, that is the rule of law, and that is the end of it. There are, no doubt, discretions which are imposed in this Court which are not susceptible to any higher body, but the Court is left to exercise those discretions responsibly and judicially, et cetera. It is no different with Parliament. It is rather a case of assuming that the Parliament is going to act responsibly than to be aghast at the possibility that they may act irresponsibly, because that is not the history of our Parliament. There is no history of irresponsibility, I would suggest, in relation to this matter, and therefore it should not be a matter of concern. Should it become so, then obviously that is a matter for people like electors and the press and others to be troubled about, but I am really saying that it is not amenable to this Court.
I should take your Honours to another set of provisions. It is 374 and 381. This may be more to do with the judicial power aspect than the matter I am on. Your Honours have already read 374. Section 381 says:
The provisions of -
inter alia section 374:
shall apply so far as applicable to proceedings on a reference to the Court of Disputed Returns under this Part.
The effect given under 374:
Effect shall be given to any decision of the court as follows:
(i) If any person returned is declared -
et cetera. Those declarations would be made but it is to be noticed that 381 only picks up (i) to (iii) in 374. It does not pick up declarations on the matters set out in 379(a) to (c).
It is not a necessary argument for us, but I point out the disparity between them. It is open to the argument that the Senate has, in relation to the question of vacancy and qualification, a power to make its decision in the light of whatever is reported to it in accordance with a reference under Division 2. But an answer to that could be that the Parliament thought it was sufficient to have 374(i) to (iii) because the result of a disqualification might be expressed in terms of "had not been duly elected". Now, in In re Wood the words "mutually exclusive" appear and I have to deal with those.
GAUDRON J: Mr Ellicott, if you were to persuade us that Division 2 should fall, which you might, what would be the - - -
MR ELLICOTT: Your Honour means in addition to Division 1?
GAUDRON J: No. For the moment, if Division 2 were to fall only, would that have any consequences? It is severable, is it not?
MR ELLICOTT: Yes, it is severable but it may reflect - I suppose I am answering your Honour by reference to my other submissions, and that is that I would use the fact that Division 2 is very suspect as a reason for saying that Division 1 itself is not only equally suspect but is invalid, but that is not an answer for your Honour's question.
GAUDRON J: I am just wondering would it then be permissible to construe Division 1 on the basis that Division 2 is not there?
MR ELLICOTT: No, your Honour.
GLEESON CJ: But there is another reason, is there not, for construing Division 1 on the basis that Division 2 is not there, and that is that Division 1 got there before Division 2 - about five years.
MR ELLICOTT: That is what I was going to point out.
GLEESON CJ: It did not change its meaning, presumably, when Division 2 was inserted.
MR ELLICOTT: No, your Honour. That is exactly what was said in In re Wood 167 CLR 159 in recounting the historical background of this part and I refer to. Most of this has been read but I wanted to emphasise a portion at the top of page 159:
The jurisdiction of the respective Houses of the Parliament to determine questions respecting the qualifications of their own members or respecting a vacancy in the particular House was not then conferred on the Court of Disputed Returns. That jurisdiction remained vested in the respective Houses of the Parliament and it might have been exercised by either House in the same way as the House of Commons had exercised a like jurisdiction after the passage of The Parliamentary Elections Act. The jurisdiction was acknowledged in the judgment of the High Court in R v Governor of South Australia.....after the election of Mr Vardon -
et cetera. Then, further down, the portion at the foot of the page has been read, as has the rest of it, but I just wanted to go back to the passage at the top of page 60, which is the one I have to confront:
Being conferred in the language of s 47 of the Constitution, there is no reason to think that the jurisdiction of the Court when a question is referred to it under Div 2 is more limited than the jurisdiction which might have been exercised by a House of the Parliament if it were determining the question referred under s 376 of the Act.
With that, obviously, we would agree and, of course, with great respect, because it is there -
The jurisdiction conferred on the Court of Disputed Returns by Div 2 is not restricted by the grant of jurisdiction contained in Div 1.
Well, we would agree with that -
The categories of questions mentioned in s 47 of the Constitution (and reproduced in ss 353.....) are not mutually exclusive, as history shows.
Now, we would submit, with respect, that that does not - first of all, it was not necessary to the decision itself. It was sufficient to say that Division 2 enabled a decision to be made on the qualifications of Mr Wood. But to go on and say that they "are not mutually exclusive, as history shows" leaves the matter, first of all, unresolved in terms of argument. They say "as history shows", but there is no explanation of that except perhaps the history of the House of Commons, reference to which is made on page 158.
But that is against the background - and Rogers on Elections has been quoted - of matters being referred to parliamentary committees on all these issues but in a context where there is no written Constitution. Now, that, of course, is a different situation to the one we are confronted with here, where the knife has to be taken out and the words "qualifications", "vacancy" and "disputed election" have to be considered and construed.
We would submit, with great respect, that that is not an ultimate decision which ought to be adopted by this Court. If it is felt to be essential to the decision - we would submit it is not - if it means that it stands in our way, then we would submit that it should not be followed.
GLEESON CJ: An argument that is put against you, as I understand it, is that when in 1902 the Parliament enacted a provision corresponding to section 353(1), it did that against the historical background, referred to in this case, and a relevantly recent historically background, in England, under which the expression "disputes as to elections and returns" was understood to comprehend disputes of about qualification.
MR ELLICOTT: That question is taken up in Rogers and there is, admittedly, a reference there that matters of qualification were dealt with under that provision. The bit of history that is omitted that could not apply in England was the existence of the Constitution, and it is that that makes the difference, in our submission, and that is our answer to that, that what the Constitution does is require the Electoral Act to be construed against the background of the Constitution, which did make a difference, did make a distinction, and gave Parliament power, a power which it could exercise fully or not, or repeal or not, as the case may be, and to deal with one of those matters, or all of them or two of them, as it saw fit, and a power which therefore had to be seen and construed against the background of the Constitution, not merely against a very important background, the parliamentary history in England, and that is our answer to that, your Honour.
HAYNE J: Do you accept that in section 47, questions respecting qualification and questions respecting a vacancy, are questions that may overlap?
MR ELLICOTT: I do not, your Honour, no. They overlap in this sense, that section 45(i) says:
becomes subject to any of the disabilities mentioned in the last preceding section -
and therefore they involve the consideration of similar matters, but I would submit that they do not - I am not sure that my answer is essential to our argument, but I would submit the preferred view is that "qualifications" is related to those matters and under those sections I earlier referred to, and "vacancies" is a separate matter and picks up section 45.
HAYNE J: And that they are mutually exclusive? That is, do you go so far, as I understood you to go, to say that in In re Wood, so far as it says section 47 categories are not mutually exclusive, is wholly wrong?
MR ELLICOTT: Yes. Your Honours, the passage in Nolan 20th Ed: "Any matters may be alleged as grounds for a petition, which if proved would avoid the election or return." That is at page 165. "The usual grounds for petitioning are those which are declared by various Acts of Parliament to invalidate an election as, examples: the existence of corrupt or illegal practices, committed by a candidate or his agents; the disqualification of a candidate for being elected; the employment as canvasses as agents", and reference is made to the Parliamentary Elections Act 1868 And it goes on: "or that the petitioner had a majority of lawful votes".
So section 44 of the Parliamentary Elections Act 1868 apparently made the disqualification of a candidate as a ground for a petition. So there they had an express - it would appear, and I must say I have not looked it up - section, which enabled disqualification to be taken into account. So it did not come into the heading of a phrase like "invalid election" with a history of common law decisions, or practice, which enabled one to say that an invalid election included as a phrase the disqualification of a candidate.
HAYNE J: How then do the provisions deal with the case of a candidate who, at the time of nomination, was eligible, not disqualified, but who, between nomination and election, for example, becomes bankrupt?
MR ELLICOTT: Section 44, I thought, would pick that up:
Any person who:
(iii) is an undischarged bankrupt or insolvent.....
shall be incapable of being chosen or of sitting - - -
HAYNE J: Thus, how do the provisions for a Court of Disputed Returns apply to such a case? Is that a Division 1 or a Division 2 case or is it neither?
MR ELLICOTT: That is a Division 2 case and the decision as to whether that person can sit is a matter for the House or the Senate and if either House wishes, should it be a complex matter of undischarged bankruptcy, be referred to the Court of Disputed Returns.
KIRBY J: Your earlier argument is that the procedure of reference is itself invalid if it is a reference to this Court or a Federal Court.
MR ELLICOTT: Yes.
KIRBY J: So that the notion of referring is not one which could work out in practice, but is it your argument that if, for example, Parliament enacted a law which said that you could refer to the Court of Disputed Returns being the Federal Court, say, the question of whether or not a person was an undischarged bankrupt, that that would be valid, or is that still going to be constitutionally impermissible as attempting to confer non-judicial power on a Federal Court?
MR ELLICOTT: If there was a discrete matter whether X fulfilled a particular category of disqualification, if it could not be done by referral, I would think that it would be within the powers of Parliamentary Council to make a provision for Parliament to pass which set up a matter. Now, when questions of privilege come to the Court, they must come as a matter and when they arise in Parliament, they will come as a matter. It may be because a person is given the right to bring the matter of privilege to this Court to have it determined or it could be in relation to this qualification. A right would be given to the person against whom some action is threatened to bring it to this Court to have it decided as a discrete matter, but it would have to be discrete and it would have to be justiciable. Now, that is a different aspect of parliamentary power than the broader section 47 question that we are considering. The mere fact that it could happen that way does not mean that what has been done is valid. Now, that fringes on the second part of my argument but I will come to that shortly.
I have dealt with In re Wood. I wanted to take your Honours to the question of nomination itself, to section 163, and 163 says:
A person who.....
is qualified to be elected -
and it is a matter obviously of meeting those issues, those statements and qualifications. Section 170 then comes into play:
(1) a nomination is not valid unless, in the nomination paper, the person nominated:
(a) consents to act if elected; and
(b) declares that:
(i) the person is qualified under the Constitution -
et cetera. Your Honours have read that. If we can go across to 172, so a nomination is not valid unless, and we come to 172:
(1) Subject to subsection (2), a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of -
those sections, including 170:
have not been complied with in relation to the nomination.
That is "subject to (2)":
(2) No nomination shall be rejected by reason of any formal defect or error in the nomination if the officer to whom the nomination is made is satisfied that the provisions of sections 166, 167, 170 and 171 have been substantially complied with.
(3) A request under this Part is not ineffective because of any formal defect or error -
et cetera. What is the effect of that? We would submit the effect of that is that it is a valid nomination to go forward for electoral purposes. There is no inquiry other than the statement "if the provisions of section 170 have not been complied with". So he has to satisfy himself that those provisions have been complied with and that involves the making of a declaration. So that the officer is not - - -
GAUDRON J: Could there not be prohibition of the electoral officer if it were known in advance that the person was not qualified under the Constitution?
MR ELLICOTT: We would submit, not, your Honour.
GAUDRON J: Could there not be prohibition to prevent his or her acceptance of the nomination?
MR ELLICOTT: No, your Honour.
GAUDRON J: Why not?
MR ELLICOTT: Because the election process is one that is discreet and people get the right to nominate if they satisfy the qualifications in 163 and if they make a declaration under 170(1). If that is done, that is all that by law they have to do, and all of this has to be read against the background of section 47 which says, in effect, that the question of qualifications of a person to be chosen or to sit should be determined by the House. No issue, we say - - -
GAUDRON J: Who determines the qualification of a person to be chosen, which is one of the questions addressed by section 44?
MR ELLICOTT: That is a question of qualification - - -
GAUDRON J: To be chosen.
MR ELLICOTT: Picked up by section 47.
GAUDRON J: But it only picks up one half of it, does it not? Section 44 is concerned with the qualification to be chosen or to sit.
MR ELLICOTT: Any question respecting the qualification of a senator or of a member of the House.
GAUDRON J: May that not presuppose that the person has been validly chosen?
MR ELLICOTT: With respect, not, because had it intended to do so, it would have made a distinction which one finds in section 34(i), namely, it would have said "the qualification of a senator or member to sit", but it does not say that. It says "the qualifications of a member" and that is a qualification which involves both choice and the right to sit. Therefore, we would submit that it is caught up in section 47 and the Commonwealth Electoral Act 1994 has to be seen against that background. I am not saying they do not have any rights, but people outside the electoral process, the member of the public, does not have any right in relation to this, in effect at all, we would say, because Division 1 does not give them any such right. It is Parliament to whom the question is committed and, if it chooses to give it to a Court of Disputed Returns, then somebody might have a right.
GLEESON CJ: Mr Ellicott, it may be that there is some provision here prescribing the form of nomination, but what is it that entitles whoever is responsible for conducting an election to require a candidate to certify or declare that he or she is not disqualified?
GUMMOW J: It is 166, is it not?
MR ELLICOTT: It is only 170 that does it, your Honour.
GLEESON CJ: No, 170 does not talk about matters of disqualification at all, does it?
MR ELLICOTT: No. Well, it says they have to declare positively that they are qualified and if no such declaration is received then, obviously, the provisions of section 170 have not been complied with and so the nomination is then rejected by the officer. He is entitled to reject it. Otherwise it goes forward in the electoral process.
GUMMOW J: The forms are specified by 166, are they not, and it is a form specified in 166 which is annexed to the case stated book.
MR ELLICOTT: Yes. I was just looking for it, your Honour.
GLEESON CJ: It is in the schedule.
HAYNE J: Form CA, Form CB.
GLEESON CJ: It seems to be common ground that the content of a declaration that the person is qualified involves, first of all, declaring that you comply with section 163 and in addition that you do not fall foul of section 44.
MR ELLICOTT: Yes, your Honour. Going forward to 339 which was put against the argument, subsection (3):
A person must not: (a) make a statement in his or her nomination paper that is false or misleading -
et cetera, and then in a prosecution there were certain defences. We would submit, obviously, but perhaps your Honours may not agree with that, if that is an illegal practice then the whole question is going to be determined and it is a matter that would arise after an election when it was found that there were grounds for saying that a person had made a false or misleading statement.
It is that illegal practice, if it is one - I just wanted to point out - that it would first of all surely involve a consideration of whether the person had a defence, that is, did not know and could not reasonably be expected to have known. We would say that that was clearly illustrated on the face of the facts in this case in relation to Mrs Hill but if it was decided that the person who had made the misleading statement had a defence then, of course, there would be no offence, no illegal practice, and, therefore, nothing upon which the petition could bite.
GLEESON CJ: But take a case where a person deliberately conceals a matter of disqualification such as that he is an undischarged bankrupt. This section indicates, does it not, that the question of whether the person is an undischarged bankrupt is a justiciable issue or, to be more accurate, the question of whether the person made a false statement in declaring that he was not disqualified or that he was qualified is a justiciable issue and, presumably, that person cannot end up in prison without some court determining that issue, even though Parliament may not have passed upon it. Well, then, that section demonstrates, does it not, that questions of qualification must be justiciable issues.
MR ELLICOTT: It might depend upon what the word "statement" means. Assuming that involves a statement of - - -
GLEESON CJ: We had better look at the prescribed form which may have a bearing on this. Perhaps the simplest way to do it is just go to the stated case.
MR ELLICOTT: At page 20:
and I declare that:
I am qualified under the Constitution - - -
GLEESON CJ: Yes. Suppose a person was prosecuted under section 339 for making a false declaration or for making a false statement to that effect.
MR ELLICOTT: If it is a statement and not just an assertion - if it is a statement then that is a question which could arise. That is clear. But, my point is this, that that arises - I use the expression, by a side wind. Not by enabling the petition under Division 1 to determine a matter of qualifications or vacancy. It does not.
GLEESON CJ: But the very fact that it is capable of arising in a court at all makes it impossible to argue that only Parliament or a House of Parliament can determine whether a person is qualified.
MR ELLICOTT: It may be that there is an argument that the question of qualification can only be determined by Parliament and that, therefore, a prosecution under section 339(3) could only occur after a decision had been made that the person had made a misleading statement in relation to his or her qualifications under the Constitution. But I would submit that on analysis a so-called illegal practice, if it is an illegal practice, is obviously not there to enable the question of qualifications to be determined under Division 1. But, at some stage a court might be confronted with an issue as to whether or not that statement, "I am qualified" et cetera , if it was a statement, was false or not. We would submit it would have to be guided by a decision, either of the House or of this Court as a Court of Disputed Returns, or of a Court of Disputed Returns properly established.
That leaves me simply to go to - I do not think I will need to take your Honours to Hudson v Lee. As to Sykes, and I say that with respect to her Honour, I think I have explained how her Honour arrived at her decision. We rely on that because if one says that the provisions are mutually exclusive, we say that the exclusiveness in relation to a disputed election is that there must be an illegal practice shown in relation to it, and that that lies outside the questions of qualifications and vacancy. I am not trying to insist that her Honour has found that qualifications and vacancy cannot be decided under Division 1 in that decision.
The matter was discussed in Sykes v Cleary and determined. I should take your Honours to that. That is in [1992] HCA 32; 107 ALR 577.
GLEESON CJ: You say this decision is wrong.
MR ELLICOTT: I say the decision is wrong, yes, your Honour. Obviously, we would submit that at page 579, his Honour, from lines 33 onwards has, with great respect, fallen into error. He says, at line 41:
But there is nothing in s 47 to suggest that the three categories.....referred to are mutually exclusive.
There is nothing express there.
Obviously a question of qualifications may arise in a context other than that of a disputed election.
Now, that is not explained -
Conversely, a disputed election may involve a question of the qualification of a person to be chosen as a senator or member. Similarly, while in some circumstances the question of a vacancy may arise in connection with a disputed election, in other circumstances it may arise independently of such an election.
Now, if you ask that question, apart from a constitutional provision, then that would be correct. If one is influenced - and we would say his Honour was over influenced by the Parliamentary history that he refers to at page 580 - if you ask it in the broad, then you could say those things but we would submit, with respect, that once you bring section 47 in, it does enable three disparate matters to be dealt with and that they are, as I have already submitted, mutually exclusive. His Honour relies, of course, on the statement in In re Wood and we have already submitted that that goes too far and it was not necessary to the decision in that case.
I should refer your Honours to Robertson v Australian Electoral Commission [1993] HCA 50; 67 ALJR 818. It was a matter before Justice Toohey and at page 819 in the right-hand column, his Honour having referred to Sykes says:
In Hudson v Lee Gaudron J held that s 362 contains an exhaustive statement of the grounds on which the Court of Disputed Returns may avoid an election. That confines the Court to cases of bribery or corruption, undue influence and illegal practice, the latter term being defined.....to mean "a contravention.....". While her Honour's reasons are persuasive, it is unnecessary for me to express a concluded view on the matter because, whether or not s 362 is exhaustive of the grounds on which the Court of Disputed Returns may declare an election void, the petitioner has not adduced any facts which would justify such a course in the present case.
In a subsequent decision by her Honour which is Webster v Deahm [1993] HCA 38; 116 ALR 223 - - -
GAUDRON J: Perhaps at 225, about line 23.
MR ELLICOTT: At page 234 at line 10:
On that basis, the allegation raises no question of illegal practice, undue influence or bribery or corruption and, as they are the only matters on which the court can act under section 362 of the Act, it raises no matter on which the court could invalidate the election or return.
GAUDRON J: Yes, but I think you also need to read what the Senate - page 225 says:
the very minimum assertion necessary to constitute a fact which will "invalidate [an] election or return" for the purposes of section 355(a) -
et cetera, is one:
by which "the election was likely to be affected". In general terms, and leaving aside the situation in which a person was prevented from voting or in which a candidate was not eligible to stand (neither of which is claimed in this case) - - -
MR ELLICOTT: Yes. Well, that only indicates your Honour was reserving the issue that we are debating today. At pages 236 to 237 there is another passage that we rely on. Now, another separate matter is this, that, try as one might, one cannot find in this petition any ground that an illegal practice has been committed under section 339(3). It is a division - - -
GAUDRON J: Is it not implicit though, in this sense? Is it not implicit that if this respondent is disqualified by virtue of the Constitution, does it not entail an illegal practice in the sense of a contravention of the Act, unless the possible defence has to be taken into account?
MR ELLICOTT: Well, it is clear enough under the sections and the divisions, on the view that your Honour is putting to me and on the assumption that the petition can raise a question of qualification, that a difference is drawn between the words "qualification" and "illegal practice" and the petition here, which has to be construed very strictly under section 355(aa):
subject to subsection 358(2) -
it shall -
set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief -
And at section 358(2):
The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with paragraph 355(aa).
(3) The Court shall not grant relief under subsection (2) unless it is satisfied that:
(a) in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies; and
(b) the grant of relief would not unreasonably prejudice the interests of another party to the petition.
Now, both those have to be satisfied. Does it sufficiently identify the matter? It does not say anything about whether or not something is an "illegal practice". The "illegal practice" is making a declaration that is false and misleading under section 339(3). It does not say that and nothing in it would enable one to glean that from anything that is said in it and therefore, we would say, the Court would not grant any relief to widen it under section 358.
GAUDRON J: But you do accept, do you, Mr Ellicott, that if that had been asserted, the question of qualification would necessarily have to be decided by the Court of Disputed Returns?
MR ELLICOTT: No, no I do not accept that. I do not accept that.
GAUDRON J: How do you distinguish that? Do you say "illegal practice" means any illegal practice other than one relating to qualifications?
MR ELLICOTT: I would say that under the Constitution, the question whether or not a person had become disqualified from being chosen was a matter that was committed to the Parliament under section 47 and had to be decided in accordance with section 47, and that that meant when we go to the Electoral Act that it had to be decided under a reference, or might have to be decided under a reference if it occurred under Division 2, but I would submit that, in other words, that - - -
GAUDRON J: You seek to read down the definition of "illegal practice", do you, in section 352(1).
MR ELLICOTT: No, I simply seek to apply to section 339(3) when it picks up a declaration for the purposes of a nomination as to whether or not a statement that I am qualified under the Constitution. When it picks that statement up, that question as to qualification is a matter which, under the Constitution, is committed to Parliament and that means that an illegal practice of that description would never come up under a petition. It would come up after a decision had been made and a person could then be charged with an offence for swearing a false declaration.
GLEESON CJ: That might mean a person could be sentenced to imprisonment on the basis of an error of law made by Parliament.
MR ELLICOTT: It means that a person might be - - -
GLEESON CJ: I mean, suppose Parliament ruled adversely to a person, would Parliament's adverse ruling be conclusive in a prosecution under section 339?
MR ELLICOTT: I would submit so.
GAUDRON J: There is also - - -
McHUGH J: The person would have a defence under subsection (4).
MR ELLICOTT: Yes.
GAUDRON J: You say the prosecution can only be commenced after Parliament has determined?
MR ELLICOTT: Yes.
GAUDRON J: Now, let us assume that there are a bunch of bogus candidates out there: they are genuinely bogus candidates. They are disruptive, they are anarchists, they do not want to be elected and they decide that the best thing to do will be to stand themselves for Parliament and they will make sure that they can get as many of them as possible who would not be qualified and they make the false declaration. Can they not be prosecuted? They never are returned. They have as much fun as they can without actually getting elected, although they would not mind having a bit more fun by getting elected. But can they not be prosecuted?
KIRBY J: This actually happened in the Netherlands, a group called "The Kabouters, "The Dwarves", got elected and they did some very good work in Parliament, actually.
MR ELLICOTT: Your Honour, it is an unusual example that you your Honour gives, but I would submit no. If they stand and they nominate and their nomination is put in, they go to election, they are declared elected. The question comes up and, really, this is the only issue. After they are elected the issue comes, "Has there been a disputed election?" or "Has there been a matter relating to a qualification or a vacancy?" and the question is determined by one process or the other. One assumes that if it is one, the Court of Disputed Returns, if it falls within that Division, that court is going to deal with the matter responsibly. One assumes that if it goes to Parliament, Parliament is going to act responsibly.
GLEESON CJ: But I thought the example that was being put to you was an example of a case where a person makes a false statement in a nomination paper, but never gets elected. How could that person be prosecuted? I am assuming the first statement related to qualification.
MR ELLICOTT: If it is made in a - your Honour is positing the case of - - -
GLEESON CJ: I suppose an undischarged bankrupt falsely states in a nomination paper that he is qualified but he is not elected so no question of Parliament passing on his qualifications ever arises.
MR ELLICOTT: That is right.
GLEESON CJ: Can he be prosecuted under section 339?
MR ELLICOTT: That can be decided because the person has not been elected. If the person has been elected - and this is the point I am seeking to make - then the issue must go to Parliament and that is the distinction that I draw and that would relate, if there were a multiplicity of people who were saying they were Australian citizens and happened to be British subjects who decided that having had the right to stand for Parliament up until 1981 thought, "Well, we are going to protest at this", if they were not elected, those people, and they had made a declaration that they were qualified, well, I suppose in those circumstances those poor unfortunate people could be attacked and made the subject of a prosecution but, again, it is, we would submit, a fanciful position, but in any event, not one that is likely to arise because we would ask your Honours, later, not to say that a British subject is a subject or a citizen of a foreign power.
That, I think, concludes our submissions in relation to the relationship between Division 1 and Division 2 and I only end by emphasising again that it is important to our client. She is entitled to the discretion of the Senate, whatever that may entail. If she were unsuccessful, in the sense of the Court disagreed with our arguments but successful on that matter, well, she would await what you might call the pleasure of the Senate, or if it was the displeasure, it will either come by way of reference or some other way.
GLEESON CJ: I do not think there is any disagreement about this matter but I presume that your submission is that if we answer question (a) "No", we should not go on to answer any of the other questions?
MR ELLICOTT: That is right, yes. So, if your Honours were able at this point of time to say "No", then you could tell me to sit down.
GLEESON CJ: We could stop you, yes. Well, good luck.
MR ELLICOTT: I have done that once in this Court and succeeded, your Honour. Now, your Honours, we would submit that Division 1 confers non-judicial power on the Court and is invalid. The very first step in this exercise - of course, my friends wanted to do it the other way because it suited them. They wanted to meander through the cases and not see the whole thing in context, that is all these provisions together that make up Division 1, but to select a judgment here and a judgment there to say that, "Well, in Peacock v Newton Marrickville it was decided that this sort of provision such as 364, I think it is, was all right, it was in the national security regulations in the height of the war and therefore might be thought to have something to do with the defence of the Commonwealth", but they rely on it and then they will pick up other provisions and say, "Well, those have been satisfied in some other decisions" and they will say, "Oh, well, it all depends upon whether it is on a court or on an administrative tribunal".
Now, basic to this case, we would submit, is to have an understanding of what the power is before those issues are looked at because if one looks at the history and sees that the power is basically an adjunct to the parliamentary and legislative power and then goes to the Act, you can readily see that the various provisions are intended to assist not a judicial power at all but as an adjunct not merely by a judicial method but as an adjunct or as part of the legislative power or the parliamentary power.
It does not mean that Parliament can never confer a power on a court to determine a matter relevant to Parliament, I am not submitting that. That, I have already conceded could happen. But, when you find, as I have already submitted, that the Court, itself, is picked up and given a name - the Court of Disputed Returns - and then given certain powers, and those powers are extremely wide and it has duties to report, to do things quickly, that is all to be considered against the background of the power that is involved.
Can I take your Honours again to Holmes v Angwin to submit this, that Holmes v Angwin did not depend on persona designata - - -
KIRBY J: Could I just ask you to pause before we get into the powers. Would it have been permissible for the Parliament to provide that certain things could be done by this Court which shall, when doing them, be called the Court of Disputed Returns. In other words, nothing was changed. It was still the High Court; we had all of our powers to do everything that the Constitution permits, and it came to us in a justiciable way by process which was appropriate to the High Court, but we were just called the Court of Disputed Returns? If that was all.
MR ELLICOTT: Can I answer your Honour by reference to section 76(ii):
The Parliament may make laws conferring original jurisdiction on the High Court in any matter.....arising under any laws made by the Parliament;
So, they make a law relating to parliamentary elections, the Commonwealth Electoral Act, and they provide for a disparate matter somehow to be referred to the Court. The answer is - depending on the nature of that matter, but assuming it is an isolated issue, or some capacity to refer questions of law to the Court in some way that is seen to be raising a matter, then, yes, the answer is "yes". But when it gives it to the Court, the Court takes it as the Court. It cannot take it as something called something else unless that is all it says.
What I mean by that is this: yes, we will give this jurisdiction to the High Court and just for the purpose of this particular proceeding, we will call it the High Court sitting as X. That may not be offensive; it may sound offensive to the Court, but it is harmless as a provision. But if it goes on and says, as this piece of legislation does, and gives the appearance that it is carving out of the Court's original jurisdiction certain powers, for instance, the power of enforcement is gone. There is no power in the Court to enforce anything. The power to commit for contempt is gone. The non-performance of any declaration that the Court makes, or any order that may flow from it, just happens to operate by a parliamentary provision. A judgment as to costs is not the judgment that operates automatically. It has to be registered in the register and operate as a judgment as of the High Court. Then in the process, it says that the jurisdiction should be operated according to very broad standards. That is why I submit that at the end of the day, if you do that, that is an invalid investing of jurisdiction under section 76(ii).
CALLINAN J: Mr Ellicott, why would somebody not be in contempt of this Court if an order were disobeyed?
MR ELLICOTT: If the Court makes a declaration, the statute picks it up and says at 374:
Effect shall be given to any decision of the Court as follows:
(i) If any person returned is declared not to have been duly elected, the person shall cease to be a Senator or Member -
and that is it.
HAYNE J: What other form of enforcement or process could there be than that?
GAUDRON J: Perhaps you want better form.
HAYNE J: In the nature of things, what more could be done?
MR ELLICOTT: But it is not the order of the Court. For instance, if the person purported to sit -
(ii) If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly;
(iii) If any election is declared absolutely void a new election shall be held.
The third one may well be a matter of doubt if a new election is not held. The High Court would - - -
HAYNE J: Why would not mandamus lie to the appropriate Commonwealth officer to set the wheels in motion to have the election?
MR ELLICOTT: Because it would probably involve some intervention in the parliamentary process and, if that was so, that provision would not be there. So that section 374 itself does not answer the question whether or not the power to take steps in relation to contempt are there. There is a contempt power and that is - - -
HAYNE J: Just before you come to contempt, what further or other better form of enforcement might have been given but was not?
MR ELLICOTT: The only power a court has usually is to act for contempt.
CALLINAN J: Mr Ellicott, there might be a distinction to be drawn perhaps between 373 and 374, because an order for costs can be entered as a judgment of the Court and enforced accordingly. So there is specific provision there for enforcement. There is no such specific provision in 374. It may not be a complete answer - indeed, I do not think it is to what his Honour Justice Hayne put to you - but it may be a partial answer.
MR ELLICOTT: There is no doubt that, apart from the limited power given in 360(1)(x):
To punish any contempt of its authority by fine or imprisonment.
CALLINAN J: Mr Ellicott, say a person ignored the declaration and attempted in some way to exercise or take advantage of the privileges of being a senator. Why would that not be an act of contempt punishable by this Court?
MR ELLICOTT: Because that particular Act is an Act which is in defiance of a statutory provision and not an order of the Court. The Court makes no order.
GAUDRON J: Does your argument not presuppose that Division 1 excludes the various powers conferred on this Court under the Judiciary Act? If it does, then we are not here, I imagine. If it does not, then your argument lacks its basic premise, does it not?
MR ELLICOTT: I was suggesting when I opened that your Honours were not here as the High Court. You were here as the Court of Disputed Returns.
GAUDRON J: For this part of your argument, do you not need to establish that first?
MR ELLICOTT: Whether first, I certainly will deal with it and I do not mind dealing with it now. When this says that powers are given to the Court, it says:
The Court of Disputed Returns shall sit as an open Court and its powers shall include the following -
and they are set out.
GAUDRON J: You see, does not that suggest that there are other powers?
MR ELLICOTT: Well, where do we find them?
GAUDRON J: In the Judiciary Act, one would have thought.
MR ELLICOTT: Well, I would submit not. I would submit they are not in the Judiciary Act because this division shows an intent to deal with the whole matter - 375:
The Justices.....may make Rules of Court.....for carrying.....into effect -
this part - - -
GAUDRON J: They are the Justices of the High Court?
MR ELLICOTT: They are the Justices of the High Court, yes.
GAUDRON J: They are not the Justices of the Court of Disputed Returns?
MR ELLICOTT: They are the High Court as the Court of Disputed Returns.
GAUDRON J: It does not say that in 375.
MR ELLICOTT: No, it does not, but I would submit that that is what it is saying, that it is - - -
GAUDRON J: Do I have any immunity if I am sitting here as part of the Court of Disputed Returns?
MR ELLICOTT: I would suspect you did.
GAUDRON J: Where does that come from? Where is that other than in the Judiciary Act?
MR ELLICOTT: Maybe your Honour is at risk, but my submission is that - - -
GUMMOW J: We may be too.
GAUDRON J: I am not the only one in that position if you are right, Mr Ellicott.
MR ELLICOTT: Would your Honours like to leave now? If I can develop this argument, I wanted to go to section 368:
All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.
I would submit that the effect of that, read with 354, and the limited nature of the jurisdiction - I do not want to read the whole of the provisions but this is how we put it - that the High Court as the Court of Disputed Returns can make no decisions about the matters that are - I am not using "matter" in a constitutional sense - about the issues that are raised in a petition unless they do so in what we might call, conveniently, original jurisdiction. But I am not referring to the original jurisdiction of the Court necessarily, I am just referring to Judges acting, and that jurisdiction may be exercised by a single Judge or by the whole Court but the decisions have to be made by the Court sitting as a Court of Disputed Returns.
If any questions arise, then they must be decided by the Court sitting as the Court of Disputed Returns, so that, for instance, the questions that you are considering here these days are questions which could be asked by any tribunal perhaps within the scope of their purported jurisdiction. That is to say: "Is this assuming Division 1 applies? Is this person truly disqualified? There is a question of law we have to answer there". Well, the Court of Disputed Returns determines it. This is the way in which they determine it.
CALLINAN J: Mr Ellicott, assuming that the Court sat as one Justice of this Court but sitting as the Court of Disputed Returns, is there any conflict then between 368 and section 73(i) of the Constitution?
MR ELLICOTT: Only because it, we would submit, is not judicial power. In other words, the - - -
HAYNE J: You do not seek to say that there cannot be an exception or regulation that would forbid appeal? You do not - - -
MR ELLICOTT: I thought his Honour referred to section 71.
CALLINAN J: No, 73(i), an appeal from a single Justice of this Court.
MR ELLICOTT: That is another question. The question of exceptions seems to have been resolved this way, for instance, in relation to taxation matters. There has been, I think, a decision of the Court which limits the appeal from the Board of Review to the Court in its original jurisdiction and there is no appeal to the appellate jurisdiction of the Court, and that has been upheld as valid.
KIRBY J: Yes, but that is from outside the Court. Is there a single case where an appeal within the Court from a Justice of the Court has been forbidden to the Full Court? Could it stand with section 73(i)?
MR ELLICOTT: I know of no such case, except that that is a case - what I have just put. Where the original jurisdiction is being exercised in a taxation matter, not now but previously, by the Court - I mean the appeal from the Board of Review being into the original jurisdiction of the Court - that appeal could be validly taken away as an exception.
CALLINAN J: You would well remember the breadth that the expression of the word "exception" is given. You argued Carson, I think, did you not, and - - -
MR ELLICOTT: I think I did, your Honours.
GLEESON CJ: Could Parliament enact a law that said, "In refugee cases, applications under section 75(v) will be heard by a single Justice and there will be no appeal to the Full Court"?
MR ELLICOTT: According to earlier decisions of this Court in relation to the taxation cases and in relation to cases where there are appeals from the Supreme Court, I think it was, to the Commonwealth Conciliation and Arbitration Court, in those cases it was held - and Cockle v Isaksen, I think is the case I have got in mind. In that case it was held that a provision which prevented appeals from the Commonwealth Conciliation and Arbitration Court to the High Court was valid as an exception. Now, what is initially - I must say, it occurred to me that this was not valid for that reason, but those cases do on consideration perhaps lead one to the view that this Court has already decided that, but there is no case, to answer your Honours, that I am aware of where a jurisdiction has been conferred on this Court and no appeal has been allowed. That is unusual and there are reasons, I would submit, for taking the view that where the original jurisdiction comes to this Court purportedly as a matter and that is then deprived of appellate process, that that is not a conferral of jurisdiction on the Court.
The difficulty with that argument is that section 76(ii) talks about "conferral of original jurisdiction" and section 73 talks about "exceptions" in relation to appeals from a single Justice of the High Court, and if those cases which have already been decided, like Cockle v Isaksen, are to apply, it is difficult to put an argument that these provisions are invalid, for that reason. That does not mean that this particular section, section 368, is not to be weighed into the balance in determining whether it is truly a conferral of original jurisdiction on this Court within section 76(ii). We would say that that is a pointer away from it. On the question Justice Gaudron asked me, what are your Honours doing here, well, we would submit - - -
GAUDRON J: Am I here?
MR ELLICOTT: Yes, you are here; you are here, in our submission, as a Court of Disputed Returns, and my client, if your Honours find against us as a Court of Disputed Returns, has got no recourse - of course it is academic and therefore does not matter - to the High Court as such; that is, into its appellate process.
GAUDRON J: One of the difficulties with your argument though is surely the terms of section 354 itself in subsection (3):
The High Court may refer -
not the Court of Disputed Returns. Subsection (4):
Subject to any directions by the High Court -
not the Court of Disputed Returns. Then again reference to the High Court in subsection (5):
The High Court -
this, I would have thought, was quite critical -
may have regard to the findings of the other court in dealing with the petition and may in its discretion receive further evidence on questions of fact.
"Single Justice" or "single Judge" seems to be a reference to a single Justice of this Court or a single judge of another court. And then the rule-making power is on the High Court, not the Court of Disputed Returns.
MR ELLICOTT: Yes. Well, what are those rule making powers for in aid of a jurisdiction to act as what is called a Court of Disputed Returns but if you go to 360, "Powers of the court" it is called "The Court of Disputed Returns". Now, is one to draw a distinction between what is called the High Court when it is in 354 which has said, "shall be the Court of Disputed Returns" and, "The Court of Disputed Returns" in 360. We would submit not but to make sense of this legislation it is talking about the High Court sitting as the Court of Disputed Returns.
KIRBY J: Is there any other instance in which an attempt has been made to constitute this Court, the constitutional Court, the High Court, as a statutory court? It springs to mind the Colonial Courts of Admiralty Act might be an attempt but even the Nauru appeals took the Court as a High Court. The territory appeals take the Court as the High Court but are there any other instances, save for the Electoral Act, that attempt to make the High Court a special court with different and special powers?
MR ELLICOTT: Your Honour, I do not recollect any, but I must say we have not done that research.
McHUGH J: What about in the early days of the Court of Conciliation and Arbitration when Justice Higgins' powers, and Starke, all sat but it was a set up as a separate court, was it not, I think?
MR ELLICOTT: I think so, your Honour.
KIRBY J: They just had separate commissions.
MR ELLICOTT: That occurred to me as one example but I do not think it was. I think it was a case of dual commissions but that is not this case.
McHUGH J: Yes.
MR ELLICOTT: I just wanted to point out, Justice Gaudron, that those provisions, (3), (4), (5) and (6) came in, in 1995, was it?
GAUDRON J: Recently.
MR ELLICOTT: or 1995.
GAUDRON J: Recently, yes. They are quite recent.
MR ELLICOTT: Yes. Until then it is said:
The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial - - -
GAUDRON J: No, it did not. I think (1) was amended, then (2). I think it used to say, "The High Court shall be the Court of Disputed Returns" and perhaps said, "and shall have jurisdiction to try the petition".
MR ELLICOTT: Yes. There has been a changing situation so far as the conferring of powers on the Court but the question of whether it is the Court, that is the High Court that is sitting here, or the High Court sitting as a Court of Disputed Returns, I would submit, can only be answered by saying it is sitting as the Court of Disputed Returns because - - -
GAUDRON J: But, what exactly does that mean? Does that mean that there is a separate statutory court created by this Act, or a tribunal? Let us assume it is not a court.
MR ELLICOTT: No. I have as much trouble as your Honour does with the notion but if it means that a court has got original jurisdiction to sit as if it were a Court of Disputed Returns or for the purposes of determining disputed returns - - -
GUMMOW J:
or to refer it for trial to the Federal Court of Australia or to the Supreme Court, of a State or Territory -
that is what 354(1) says.
MR ELLICOTT: To refer to them. They are to have "the powers and functions of the Court of Disputed Returns". That is what (4)(b) says:
the other court has, in respect of the petition, the powers and functions of the Court of Disputed Returns -
so it - - -
KIRBY J: But you started your argument today by asking in what capacity are we here, but the Chief Justice and Justice Callinan have both referred questions, essentially questions of law, into this Court as Justices pursuant to section 18 of the Judiciary Act 1915 .
MR ELLICOTT: Yes.
KIRBY J: Now, that simply says, "Any Justice....may state any case", direct a matter "to be argued before a Full Court", and the "Full Court" that is there referred to is not the Court of Disputed Returns, it is the Full Court of the High Court of Australia. So, I do not think there is any real doubt, is there, that we are sitting here as the Full Court of the High Court of Australia into which Justices have referred questions. I would certainly feel more comfortable if I am sitting here as part of the Full Court of the High Court of Australia, and that seem to be what has been done. Otherwise there is no validity in the reference, because it is purported to be and in form is under section 18 of the Judiciary Act.
MR ELLICOTT: Yes, your Honour. It practical terms it may not matter, but in terms of analysing what the function is that is being conferred on the Court, then I would submit that as there can be no appeal from the Court of Disputed Returns and as it, therefore, has to operate in original jurisdiction, that when decisions are made which affect its operation, they must be made by it as the Court of Disputed Returns. Now, if the Court can exercise its jurisdictions granted to it and powers granted to it by the Judiciary Act, then it is perfectly all right to take hold of section 18 and make use of it.
GLEESON CJ: There is a corresponding court in all States, is there not? I think there is in New South Wales.
MR ELLICOTT: Yes. Yes, there is.
CALLINAN J: There is in Queensland constituted by one Supreme Court judge from whom no appeal lies, as here.
MR ELLICOTT: He should be regarded as personae designata, I assume. Now, there is a real issue as to whether your Honours are purportedly conferred jurisdiction as personae designatae, but the cases in this Court would suggest that where jurisdiction is conferred on the Court, albeit to be called the Court of Disputed Returns, then that is not a case of personae designatae. That is a case where the Court has either been given appropriate judicial power or has not been given judicial power and so this case is really about the nature of the power, it does not raise the question of personae designatae.
GLEESON CJ: Have you taken us to the authorities you wanted to take us to on this leg of your argument?
MR ELLICOTT: No, your Honour. Now, I wanted to go to Holmes v Angwin because my initial submission was that the only way one can fully appreciate and determine the issue as to the nature of this Court's jurisdiction is to have a knowledge, an understanding of the background of the powers that are being conferred. Now, Holmes v Angwin 4 CLR your Honours have been referred to, my friends have sought to distinguish it on the grounds that they picked up the issue of personae designatae and that that was the ground upon which they, that is the Justices of the Court, then determined the matter as they did. In our submission, the true reading of this case is that they regarded the Court, the single Judge, as a persona designata because of the nature of the power. That is really the reason, because they were thinking, "this sort of power is not judicial power". That is what lies behind these decisions.
I do not want to read the whole of the judgment, but can I take your Honours to - the relevant passages start at 304 in the judgment of the Chief Justice. At 305, just towards the bottom:
By sec. 163 it is enacted that the Court shall be constituted by "a Judge sitting in open Court," who shall have power to declare that any person who was returned as elected was not duly elected; to declare -
and so on. Indeed, if your Honours would compare the provisions under this law of Western Australia and this Act, they are substantially the same:
The Court is required by sec. 164 to inquire whether or not the requisites of sec. 160 have been observed, and to inquire into the identity of persons, and whether their votes were improperly admitted or rejected; but the Court is not to have power to inquire into the correctness of any roll.
That is in this Act:
Sec. 165 directs that the Court shall be guided by the substantial merits and good conscience of each case.....This provision of itself suggests that it was not intended that an appeal should lie to a Court bound by legal rules. Then we come to sec. 167, which says: "All decisions of the Court shall be final and conclusive.....Sec. 168 directs that the Master of the Supreme Court shall forthwith, after the filing of the petition, forward to the Clerk of the House -
We have that provision.
Costs may be awarded, and the order certified by the Court may be entered as a judgment of the Supreme Court and enforced accordingly. Sec. 171 provides that if any person returned is declared by the Court not to have been duly elected he shall cease to be a member of the council or Assembly; and if any person not returned is declared to have been duly elected -
and so on in terms of 374, and this is important to his Honour:
The necessary steps for that purpose are taken, not by the Supreme Court as incident to the execution of its judgment, but by the House to which the result of the investigation is certified. Upon consideration of the whole of these sections it appears to me that the inquiry directed to be held by a Judge of the Supreme Court is an inquiry merely incidental to and for the purpose of the determination of the right of a particular person to sit in the House of Parliament. It is an inquiry and determination for the information of that House, and effect is given to it by the House as it was before, but not until after it is informed of the result of the inquiry made by the Judge. I think, therefore, that, although sec. 159 says that the Supreme Court shall have jurisdiction, yet in substance, it is not the Supreme Court, in the sense in which that term is used in the Constitution, that has jurisdiction, but that the real tribunal is a new tribunal consisting of a Judge of the Supreme Court as a persona designata, to whose arbitrament the necessary questions of fact are to be referred for the assistance of the House of Parliament.
These, of course, were Judges who had long experience in parliamentary matters and, therefore, this decision has been repeated and respected since it was given.
KIRBY J: But there is a difference in the text. It does talk of "the Supreme Court constituted by a single Judge." If you put that in square brackets, you do not have the usual Supreme Court, whereas here the jurisdiction is conferred on this Court as the High Court sitting.
MR ELLICOTT: That is right.
KIRBY J: It is the whole court. It is the whole court.
MR ELLICOTT: It is the whole Court, yes.
KIRBY J: Whereas in the Western Australian case the legislation....a peculiar beast. It is not the Court, it is the Court constituted by a single Justice.
MR ELLICOTT: The peculiar beast, if I may say so, with respect, is not the judge of the Supreme Court, the peculiar beast is the power that is conferred on that judge. That is to say, the power that is described by his Honour, and that Sir Edmund Barton goes on to describe at the foot of page 307:
The validity of elections, and kindred questions, such as that of membership, were, until the passing of recent statutory law, within the exclusive privilege of elective Houses of legislature. They had the right to determine, by their own domestic tribunals, questions of that kind as they arose, and had always asserted that right, so far as the House of Commons was concerned, and the legislative bodies of Australian and other Colonies were in fact given power -
They go on to deal with that. He goes on to deal with those matters. In the middle of the page:
It was found, no doubt -
and this is an important aspect of understanding why Parliament does it:
It was found, no doubt, that the feeling of partisanship which necessarily arose from such a method of determination tinged that method with disadvantages outweighing the advantage of keeping in the hands of Parliament the right of determining these questions. Parliament has therefore in many instances and, as one instance, in this State), transferred the right -
and this, of course, is after 1902, when he would have been the Prime Minister when the 1902 Act was passed:
transferred the right to a separate tribunal, not on the ground that it wished to deal with these questions as matters of litigation; but, as I judge -
It is in exactly the same form, in substance, that is, the Act -
but, as I judge, on the ground that it wished to remit such matters to men of experience and known fairness of mind -
Your Honours, obviously, would all qualify for that.
GLEESON CJ: Not all of us.
MR ELLICOTT: Except Justice Gaudron.
GAUDRON J: Well known for my unfairness of mind.
MR ELLICOTT: As a woman of experience and known fairness of mind.
GAUDRON J: I do not think that sounds very good, either, Mr Ellicott.
HAYNE J: Never explain; never resign, Mr Ellicott.
MR ELLICOTT: I continue:
who should merely declare their findings upon the questions involved, and any enforcement of such decision by the substituted tribunal itself was, in the absence of clear legislative authority, quite out of the question. Thus the Act of this State makes provisions as to the effect to be given to the decision of the Court, but it does not make the decision of the Court enforceable in the ordinary way as a judgment. There is a provision in sec 170.....but there is a striking difference between that section and the remaining sections of the Act with respect to the enforcement of the determination of the Court on the merits.
The whole tenor of this is not about persona designata, this is about the nature of the power and the discretions, et cetera, that are conferred on the tribunal, be it a judge of the Supreme Court. It is a reason why they say this is not within the appellate power because it is not truly judicial. That lies behind this. Over the page it goes on, at the top of page 309:
The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants.
It is not X versus Y:
It is that domestic jurisdiction which in this State has been transferred first to the Court of Disputed Returns, afterwards to the Supreme Court, but in the latter case with the retention of provisions which of themselves show that the character of the tribunal and the method of procedure are such as did not characterise the ordinary tribunals of justice.
GAUDRON J: Can I interrupt you there? Were section 47 not in the Constitution, this power would, by virtue of the words of Chapter III, would it not - be seen to be judicial power?
MR ELLICOTT: No, your Honour.
GAUDRON J: Let us assume 47 were not in the Constitution. Would there not be rights in issue arising under a law made by Parliament?
MR ELLICOTT: If your Honour means if section 47 was not there, the whole history of Parliaments in relation to these matters did not exist, yes, but - - -
GUMMOW J: They were Parliaments for one thing without a written Constitution.
GAUDRON J: Yes, we have to talk in the context of the Australian Constitution, which is very different from what happens in Westminster.
MR ELLICOTT: Well, not very different, your Honour - section 49 does not think so, but section 47 is consistent with the whole of parliamentary practice beforehand.
GAUDRON J: But, equally, section 47 is consistent with steps being taken to negate its effect.
MR ELLICOTT: Well, it is consistent with Parliament making a law about the subject, that is true, but whether it can negate its effect is another matter, because what it does - - -
GAUDRON J: It can negate so much of section 47 as says these matters "shall be determined by the House in which" they arise.
MR ELLICOTT: What you cannot negate in section 47 is the fact that the Constitution said, prima facie, these are matters which are traditionally left to Parliament and we are going to repose them in Parliament, and that is what those debates show. We will leave them with the Parliament until the Parliament otherwise decides. These are matters peculiar to the province of Parliament and not otherwise, but Parliament can otherwise provide. That just leaves the matter to be determined in accordance with notions of judicial power or notions of non-judicial power. It just happens that the power to determine disputed elections has traditionally been regarded as an adjunct to the parliamentary power.
That is what Holmes v Angwin is asserting. I do not want to read Justice Higgins but he is even more forceful than the other judges and I would submit that Holmes v Angwin is an authority which - I cannot say binding on the Court, but it is a decision which this Court should be very loath to depart from in view of the history of it.
HAYNE J: The immediate question in Holmes v Angwin was, was it not, whether there was a judgment, decree, order or sentence of a Supreme Court?
MR ELLICOTT: Yes.
HAYNE J: Do you say that their Honours went off on the point of there being no judgment, decree, order or sentence, or rather on the point that the order was not an order of a Supreme Court?
MR ELLICOTT: They went off on the question that it was not an order of the Supreme Court.
HAYNE J: Was what moved their Honours to that conclusion the historical fact that it had been the practice of Houses of Parliament, at least in England, to decide qualifications of members for themselves?
MR ELLICOTT: What moved them to it was partly that but, to give content to that, what moved them to it was the fact or the proposition in law that what those courts were doing, or those tribunals were doing, was exercising a function which was an adjunct to parliamentary power and was not judicial - - -
HAYNE J: That is to say, as delegate of or representative of or agent for the House?
MR ELLICOTT: Yes, and was not judicial in nature. That is, essentially, what Sir Edmund Barton said and that is what Justice Higgins said. That is why it is so important to go back to the nature of the functional power that is being conferred, indeed having in mind section 47, because 47 is saying, "This is Parliament's power to determine this and if we give it to somebody else, a court or a tribunal, well, they are doing it because we want them to do it".
GAUDRON J: Want them to do it in what capacity, though? Not wanting them to do it as an agent of the Parliament, surely, or as an adjunct to the Parliament?
MR ELLICOTT: I am sorry, I did not catch the first part.
GAUDRON J: Yes. You said if we give this to a court to do it we are giving it to them because we want them to do it, but the next question must be for your submissions: in what capacity do we want a court to do it? Do we want them as our delegate or agent or as an adjunct of the Parliament or do we want them in their capacity as a court?
MR ELLICOTT: Yes. What they are doing, their Honours say, they are doing it under an Act which in substance is identical with this Act. They are doing it as an adjunct of Parliament and that, we say, is a strong basis upon which to say this is not judicial power. Now, Holmes v Angwin, as your Honours know, was dealt with in Webb v Hanlon and there are some passages in Webb v Hanlon which endorse Holmes v Angwin and although again it lies within that area of appellate power and whether the Full Supreme Court had delivered a judgment which was the subject of appeal to the High Court, nevertheless, much of what their Honours say is based on a similar view as in Holmes v Angwin. May I take, for example, Justice Starke at 323:
The Elections Acts to 1936 of Queensland provided for an Elections Tribunal.....It has authority to inquiry -
et cetera. Very similar terms except it is not "the Court", it is a judge appointed.
The decision of this court in Holmes v Angwin is decisive that such a determination is not a judgment, decree, order or sentence appealable.....sec 118 of the Act provides that an appeal shall lie to the Full Court -
He sets out some provisions:
It is contended that the determination of the question of law by the Full Court is nevertheless a judgment, decree, order.....It is not the form that should be examined but the substance -
At the foot:
The provisions are all part of the electoral machinery and have nothing to do with the ordinary rights of parties who are litigants -
Not dealing with the persona designata matter.
They give jurisdiction to an independent and impartial tribunal to determine questions that once were determined by the legislature itself. And Holmes v Angwin is, in my mind, decisive that the legislature can designate its courts or judiciary for this special purpose without involving the consequence that its determinations are subject to the review of this court. It would be surprising if such determinations came under the review -
So he strongly approves of Holmes v Angwin, not just on the decision itself, but on the basis of it, resting on the nature of the power. Justice Dixon, in the middle of page 325:
In my opinion the appeal is incompetent, not only because the order appealed against is interlocutory, but because it is not of a description in respect of which an appeal lies without special leave.
Now, at page 327 at the foot:
On the footing that his appeal as of right might be incompetent, the appellant applied for special leave to appeal. The decision of this court in Holmes v Angwin puts the Elections Tribunal outside the category of courts from whose judgments, decrees, orders, or sentences an appeal lies to this court; at all events, it establishes that the decision of that tribunal is not an order of the Supreme Court. But the order from which special leave is sought was not made by the Elections Tribunal -
it is the Full Court -
It is evident that the jurisdiction or authority given by this provision is exercisable as an incident of the power to adjudicate upon disputed elections conferred in the first instance upon the judge of the Supreme Court.....If the Full Court, as the Supreme Court, is invested with a statutory jurisdiction to correct by judicial order the decisions upon questions of law.....presumably we are not prevented by Holmes v Angwin.....Whether section 118 confers a jurisdiction of this character upon the Supreme Court as such is a question of interpretation. But, assuming that question were decided in the affirmative, I think that only in an exceptional case ought we to grant special leave -
So he has gone across in the leave and exercising a discretion and what affects his Honour's mind and decision is the character of the power. He says:
thought fit to confer upon what, ex hypothesi, is the Supreme Court as an incident of the transfer from the Assembly itself of one of its own powers or privileges to a special tribunal, the Elections Tribunal-
Justice Evatt, at page 330, in the middle:
In each case the provision gives emphasis to the administrative as distinct from the judicial character of the special tribunal.
As the emphasis. Justice McTiernan, likewise, he takes a strong view, and he refers back to Holmes v Angwin.
Now, we would submit that Holmes v Angwin, on that point, that is to say, on the nature of the power as distinct from the question of persona disignata, stands and it stood unchallenged really since it was delivered in 1904. There is a case - your Honours have a copy of it - Patterson v Solomon (1960) AC at page 580:
The appellant, a registered elector of Trinidad and Tobago, sought an injunction to restrain the respondent, who was an elected member of the legislative Council of the colony, a member of the Executive Council.....from claiming to be or in any way acting as the holder of those offices on the ground that his seat had become vacant under certain provisions.....
Held, (1) that section 40 of the Order in council of 1950, as amended, contemplated a reference to the Supreme Court by the Legislative Council itself, and that the appellant could not competently maintain the proceedings in any form.
At page 589, Viscount Simonds, delivering the decision of the Privy Council, said, about a third of the way down:
This objection can conveniently be examined upon the footing that the appellant's claim had been maintained in its entirety. Upon this footing it appears to their Lordships that it must be sustained. Adapting the words of Lord Cairns L.C. in Theberge v Laudry, they are of opinion that, upon a fair construction of the Order in council, it does not provide for the decision by the Supreme Court of mere ordinary civil rights, but creates an entirely new jurisdiction in a particular court of the colony for the purpose of taking out of the legislative council with its own consent and vesting in that court the very peculiar jurisdiction which had existed in the Council itself of determining the status of those who claim to be members of the council. If so, it follows that the determination of that court is final and that from it no appeal lies. Nor does this rest on the validity of the assumption -
et cetera.
Your Honours have the copy of the page from the judgment of Justice Menzies in Adelaide Fruit and Produce Exchange Co Ltd v Adelaide Corporation [1960] HCA 61; 105 CLR 428 and at page 434, the words at the bottom:
It was argued by reference to Holmes v Angwin and Webb v Hanlon that notwithstanding the fact that the powers of determination are given tot he Supreme Court by name, nevertheless because such proceedings do not constitute part of the Court's ordinary jurisdiction, any ensuing order is not a judgment or order of the Supreme Court for the purposes of s. 73 of the Commonwealth Constitution. It is not, I think, necessary to consider the election cases here, because of the special footing upon which they stand -
and he refers to Patterson v Solomon. That is not an authority for the proposition that this is a traditional jurisdiction exercise by the Court, that is giving an endorsement to Holmes v Angwin. In fact not that this has any authority at all, but I note that in the Boilermakers' Case Mr Menzies, as he then was, referred to Holmes v Angwin as an example, I think, of the exercise of the vestiture of non-judicial power, but the Court itself did not in its judgment take that up, but - - -
KIRBY J: On the contrary, the Court has continued for as long as Holmes v Angwin has been around to exercise that power.
MR ELLICOTT: Yes.
KIRBY J: Holmes v Angwin is ancient, so is the exercise by this Court of the powers of the Court of Disputed Returns.
MR ELLICOTT: Your Honour, that is an argument, but it is only in the area persuasion. The Court has to go back to the nature of the power, and if you allow the accretion of time, the sands of time to - - -
KIRBY J: It is also perhaps fair to say that it arose in the State sphere, and although the point has been raised, it is only now that we have taken out the microscope and we are looking very narrowly and carefully at it in the federal sphere, where the constitutional regime is different.
McHUGH J: Mr Ellicott, do you place any reliance on section 361 of the Act, and is there any authority as to whether or not the power of inquiry over that section can be used by the Court of its own motion?
MR ELLICOTT: Your Honour, I am now coming to the provisions, and that will be my argument on this particular aspect. I was going to rely on that as it indicating that it was part of an inquisitorial jurisdiction that was attempting to be conferred on the High Court. That was going to be my argument which I was going to take up tomorrow, your Honour. Your Honour asked me a more precise question.
McHUGH J: Yes, as to whether there was any authority, as to whether or not the Court could exercise that power of its own motion without there being any issue raised in the petition, in effect.
MR ELLICOTT: It would not be consistent with the nature of judicial power as exercised by this Court that it would.
McHUGH J: I appreciate that, but, for example, the Court is required to inquire whether the petition is duly signed, whether or not any party raises the point, and then it is given a power to make inquiries into the identity of persons, whether their votes were improperly admitted or rejected, and so on. One of the cases on the old sections 140, 141 of the Conciliation and Arbitration Act where it was held as non-judicial powers conferred on the Court because, I think the recollection, they were entitled to exercise a power of their own motion. I think it might have been the AEU Case or one of those - it is one of the Spicer Cases.
MR ELLICOTT: Where it was held to be invalid?
McHUGH J: Yes.
MR ELLICOTT: Your Honour, can we have a look at that overnight?
McHUGH J: Yes.
GLEESON CJ: Mr Ellicott, in terms of time, how long - you are coming to the end of your argument on paragraph A, as I understand it. How long will you be on the remaining paragraphs?
MR ELLICOTT: I should finish by around about half past eleven or quarter to twelve, your Honour.
GLEESON CJ: Mr Sharples, you have heard the argument advanced on both sides, or you have heard all of the argument advanced on one side and a large part of the argument advanced on the other side. In Mr Sue's petition, how long do you expect you will want to put whatever additional matters you want to put in relation to your case?
MR SHARPLES: It is a layman's estimate, your Honour. I would not think more than an hour and a half.
GLEESON CJ: We would not expect to hear from you repetition of any of the matters that we have heard in argument from other people.
MR SHARPLES: I would not be trying to repeat them.
GLEESON CJ: You have given us, have you, a written outline of your argument?
MR SHARPLES: I have, your Honour.
GLEESON CJ: Thank you, Mr Sharples. Having regard to those estimates of time and because we are anxious to finish this matter if we can by lunchtime tomorrow, we will sit at 9.30 in the morning. Court will adjourn until then.
AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 13 MAY 1999
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