Kelly v Madgwick & Ors [2004] HCATrans 148 (4 May 2004)

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Kelly v Madgwick & Ors [2004] HCATrans 148 (4 May 2004)

Last Updated: 11 May 2004

[2004] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S433 of 2003

B e t w e e n -

NED KELLY

Applicant

and

THE HONOURABLE RODNEY NEVILLE MADGWICK FEDERAL COURT JUDGE

First Respondent

RIGHT REVEREND DR PETER JOHN HOLLINGWORTH GOVERNOR GENERAL OF AUSTRALIA

Second Respondent

PROFESSOR MARIE ROSLYN BASHIR GOVERNOR FOR THE STATE OF NEW SOUTH WALES

Third Respondent

GEORGE CAMPBELL SENATOR FOR NEW SOUTH WALES

Fourth Respondent

HELEN COONAN SENATOR FOR NEW SOUTH WALES

Fifth Respondent

KERRY NETTLE SENATOR FOR NEW SOUTH WALES

Sixth Respondent

MARISE PAYNE SENATOR FOR NEW SOUTH WALES

Seventh Respondent

SANDY MACDONALD SENATOR FOR NEW SOUTH WALES

Eighth Respondent

URSULA STEPHENS SENATOR FOR NEW SOUTH WALES

Ninth Respondent

ANDREW KINGSLEY BECKER AUSTRALIAN ELECTORAL COMMISSIONER

Tenth Respondent

DAVID JOHN FARRELL AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF NEW SOUTH WALES

Eleventh Respondent

WILLIAM PETER SHEPARD AUSTRALIAN ELECTORAL OFFICER FOR THE TERRITORY OF THE NORTHERN TERRITORY

Twelfth Respondent

JEFFREY WILLIAM HOWARTH AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Thirteenth Respondent

AUSTRALIAN ELECTORAL COMMISSION

Fourteenth Respondent

Application for leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 MAY 2004, AT 2.01 PM

Copyright in the High Court of Australia

__________________

MR N. KELLY appeared in person.

MR J. BASTEN, QC: Your Honours, I appear with MS R.M. HENDERSON for the fourteenth respondent, the Australian Electoral Commission. (instructed by Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the first respondent that the first respondent will submit to any order of the Court save as to costs. On 25 February 2003 Justice Gummow dispensed with service on the second to thirteenth respondents in matter No S403 of 2002, from which this application for leave to appeal has been filed. However, the second and fourth respondents have filed submitting appearances and will submit to any order of the Court save as to costs. Yes, Mr Kelly.

MR KELLY: Your Honour, this is a matter that came before Justice Gummow by way of constitutional writ - - -

GLEESON CJ: You are applying for leave to appeal against the decision of Justice Gummow.

MR KELLY: I am. That is correct, your Honour, yes.

GLEESON CJ: Could you come across so that it can be recorded?

MR KELLY: I am sorry.

GLEESON CJ: That is all right.

MR KELLY: Essentially, your Honours, there is challenge to the 2001 general election. There was an initial challenge when I tried to stand as a candidate in the Senate election for the Parliament of the Commonwealth of New South Wales, and that was heard by way of Court of Disputed Returns before Justice Madgwick. I challenged the jurisdiction of Justice Madgwick to have heard that matter pursuant to the Commonwealth Electoral Act, Court of Disputed Returns division. The challenges are fundamentally based upon my view that there was no properly instigated writ for the election that pursued in the year 2000 ending in a poll on 10 November. So I say the writ is bad and, if I am correct in that, the court, by way of being the Court of Disputed Returns, had no authority under law to decide the matter that they purported to decide.

There are three grounds on which I say the election is bad. The first ground is the proclamation that was issued by the Governor-General on 5 October, a copy of which is in the index book. It was done so purportedly pursuant to section 5 of the Constitution. The Governor-General has power, as the Court would well know, under that section, at the request and advice of the Prime Minister, to prorogue the Parliament of the Commonwealth and to dissolve the House in order for a general election to take place.

My submission in relation to this is not that the proclamation was wrong; it is the mechanics required by law for the proclamation to become effective at law never actually occurred. Essentially, the problem there is that section 17(j) of the Acts Interpretation Act (Cth) required the publication of the proclamation. If one looks at the evidence that is in the index book, particularly the evidence of Mr Dean Horne, who was an employee of the company who contracts to the government printer, that proclamation was not put into a Gazette and delivered to the information office of Canberra until well after the purported date of its effect.

GLEESON CJ: Now, just let me get clear what you are applying for. If you look at page 181 of the application book, at the conclusion of the submissions for the fourteenth respondent, they refer to a number of applications. You are applying for leave to appeal against the decision of Justice Gummow - - -

MR KELLY: That is correct.

GLEESON CJ: - - - and you are also applying for other relief in respect of which you need an extension of time, is that right?

MR KELLY: I am not sure whether I do need an extension of time, but if I do I apply for it.

GLEESON CJ: Well, you just tell us comprehensively what your applications are.

MR KELLY: The applications are that I challenge the jurisdiction of the Court of Disputed Returns, which Justice Gummow - - -

GLEESON CJ: I am sorry, perhaps I am not making myself clear. You are applying for leave to appeal against the decision of Justice Gummow?

MR KELLY: Yes, that is correct.

GLEESON CJ: Is there anything else you are applying for?

MR KELLY: No, I do not think so.

GLEESON CJ: Thank you. Go ahead.

MR KELLY: Justice Gummow dealt with the matter in his judgment. He was of the view that the challenge that I raised before him concerning the general election outside the election of New South Wales was beyond my ability to bring, pursuant to the constitutional writ that I brought. In so much as that is the case, I challenge that view, and if leave is needed for that, then I certainly apply for it. There is certain relief that may need leave, I suppose, in the sense of the amended document that I have filed, being the draft order nisi in respect of orders of mandamus and so forth, and perhaps I misunderstood what your Honour was asking me earlier.

GLEESON CJ: Let me make the question again clear. You are applying for leave to appeal against the decision of Justice Gummow. What else are you applying for? I need to know the answer to that question, so that we can make appropriate orders. Are you also applying for constitutional writs?

MR KELLY: Yes, your Honour.

GLEESON CJ: Do you seek an extension of time in any respect in relation to that application?

MR KELLY: In respect of those constitutional writs that require an extension of time, I do, yes.

GLEESON CJ: Thank you.

MR KELLY: I am sorry to have confused that point. Essentially, then, the first leg of the argument of challenge is based on the failure of the proclamation, which I say occurred based on the evidence of Dean Horne’s affidavit, that the required publication of that document did not take place before the hour of its effect and, therefore, the proclamation that was issued by the Governor-General at law is simply null and void. My submission is that is the starting trigger for any general election; it is also the starting trigger for advice that is given to the State Governors by the Governor-General requesting that they issue similar writs in their jurisdiction.

The second challenge is in respect of the times and the dates that were applied to both or all of the writs that were issued in that election. This is probably one of the nubs of the essential argument. I say that Justice Gummow, in interpreting both the New South Wales senators’ election statute, the Senators’ Election Act 1903 (NSW), so far it was applicable to my challenge in respect of the New South Wales election and so far as his Honour’s interpretation of the relevant sections of the Commonwealth Electoral Act purporting to the days required between the issue of the writ and the close of nominations, and the close of nominations and the day of the poll, are incorrect.

The third leg of the argument goes to the New South Wales election. I say the writ that was purportedly issued by the New South Wales Governor in respect of that election failed at law. It failed pursuant to the Constitution to appoint a place, as is required by the Governor of the State, and it failed in the sense that it was also not published until 12 October, whereupon it purported to take effect on 8 October. That became an issue of some debate in both the matters that occurred before Justice Madgwick of the Federal Court and his Honour Justice Gummow.

The argument that is used by counsel for the Electoral Commission is essentially that the problems that I bring can be overridden by sections of the Commonwealth Electoral Act. Now, for that to take place, the court has to find that the State power, which I say is exclusive under section 5, can, in fact, be overridden by the power of the Commonwealth in the second sentence of section 5. I dispute that. I have done consistently since the Court of Disputed Returns.

The fourth problem, to my mind, in respect of the Court of Disputed Returns matter, beyond the failure of the writ and failure of the election which I say therefore would not lead to any jurisdiction of that court, I also challenge the right of a judge sitting as a Court of Disputed Returns to decide constitutional issues that I believe should be decided by the High Court. There were constitutional issues involved in Justice Madgwick’s judgment, particularly section 5, if not sections 9 and 12 of the Constitution.

The last challenge to the jurisdiction of the Court of Disputed Returns is essentially that, whilst this Court in Sue v Hill found that the provisions of the Court of Disputed Returns sections of the Commonwealth legislation were not such that it prevented a court from acting judicially, I say the problem with this is that a court, particularly the High Court and the Federal Court as well, there is a breach of the separation of powers, which is a fundamental matter of constitutional law. I have always felt, since Sue v Hill, that that was missed, and I challenge jurisdiction on that basis.

KIRBY J: I think I indicated some concern on that score, but the majority of the Court did not take that view in Sue v Hill. So the matter, I think, has to be taken as settled by the majority of the Court.

MR KELLY: Yes. I read that, your Honour. I understood it to be a matter that did not come before the Court.

KIRBY J: Well, there was some question in Sue v Hill. It was not finally decided by me, but I think I indicated some concern about the issue of the powers of the Court of Disputed Returns.

MR KELLY: Yes, you did, your Honour. I have misread Sue v Hill if it has gone as far as to decide the issue of the separations of powers. I understood it to decide the issue of the attack upon the provisions.

KIRBY J: It is pretty hard to reconcile the decision and outcome and orders of the Court in Sue v Hill with a view that they did not have jurisdiction.

MR KELLY: I suppose it depends on the challenge that is brought. In any case, I make that statement. I was never comfortable with the concept of the separation of powers – when I re-read Sue v Hill, it allowed jurisdiction and I challenge it now. If your Honours could be directed to the index in respect of page 138, there is a copy of the New South Wales ballot paper exhibited. Now, what occurred in the New South Wales election is that I attempted to register an above-the-line group nomination with myself and a co-candidate.

GLEESON CJ: What was the name of your group?

MR KELLY: We did not have a name. We were an ungrouped, above-the-line candidacy. One has to be a political party for the Act to allow you to have a name above the line, so we were ungrouped. In any event, the application – the nomination was rejected by the Australian Electoral Officer of New South Wales and, indeed, it was not on the ballot paper, as is evidenced by that photocopy. If you then go, if you would, to the document that was given to me when I sought to find out the relevant rules that apply to lodging a group nomination. That document is a publication by the Electoral Commission. It has been done by their Queensland office. It starts at page 119 and goes through to 136. The most important section starts at page 126, and it deals with nominations and the sorts of things that a Senate nomination candidate needs to be aware of.

The point I would like to make with this, your Honours, is that nowhere in that document, particularly not on that page, do they inform candidates that they have options such as faxing in their nominations, that they inform candidates that they can organise an agent, if they live outside of Sydney, to pay their nomination deposit, and other relevant matters that are particularly important for candidates in a pre-election period to know, so that they can effect their nomination within the relevant time period. It was that failure, in effect, along with the other failures that I mentioned in terms of the counting of the days, that led to my disqualification or the failure to accept our nomination. I say that is unconstitutional.

I say, in particular, that it breaches my rights under international documents and under laws in Australia, particularly Article 25(a) of the International Covenant on Civil and Political Rights, which, I understand, is part of our domestic law. There is a fundamental right – if one has to vote, there is a fundamental right to have the opportunity to stand and be represented - - -

KIRBY J: I do not think it is part of our domestic law. It is a treaty to which Australia has subscribed, but it is not part of our domestic law.

MR KELLY: I understood it was a schedule to the Human Rights Act.

KIRBY J: It has not been incorporated. Various attempts have been made, but it has not been incorporated in federal law.

MR KELLY: Then I would say the same principle is embodied in our Constitution, in any event. We have a representative document that is the fundamental of our society in terms of the rights of people to have representative government. We led the world in respect of that when our Constitution was implemented and it is embodied in various sections of our Constitution, or peppered right throughout various sections of our Constitution, that we are a representative democracy. Inasmuch as we require people to vote on a compulsory basis, there must also be a principle in there of the right to stand and the right to be governed by a government that is elected according to the Constitution and the laws of this country.

There must be an absolutely fundamental breach when the whim of certain electoral officers can have candidates stood aside for no real reason. If that is going to continue, then our democracy, as we call it, which is basically run through the political party system, will have nowhere to go because there will be no other input possible to be made. The Senate gives us – when I say “us”, I suppose I say people outside the political party system, people who do not want to vote for the political party system and want candidates to run – to express their views, the Senate gives us the only practical opportunity to do that, and if we allow this to be whittled away even further, then we will not have a voice at all.

If I could just go then to the central argument of statutory interpretation which Justice Gummow dealt with in his judgment, effectively, it would appear that Justice Gummow took the view, as Justice Madgwick did, that, indeed, the Commonwealth Electoral Act did have precedence over the Senators’ Election Act. In any event, he dealt with the counting of the days, and his Honour takes the view that the time after the writ counted to the time of nomination, that day one after the date of the writ was day one and day 10 after the date of writ is day 10, which turned out to be 10 October. My basic submission is that that flies in the face of the Commonwealth precedents which I have put before the Court in terms of the counting of days for purposes such as statute interpretation. The effect of that, as Justice Madgwick, if I am correct, noted, that the nomination had closed one day early and essential in this definition is - - -

KIRBY J: Was there not an additional issue, and that is that unless you could show that the outcome would have been different and it affected you, that your endeavour now, after such a long time, to set aside the outcome of a Federal Senate election would not lead to any relief?

MR KELLY: Well, that argument has many matters to it. I mean, essential to get to that point one has to get over the problems with the writ. I mean, my attack is basically against the writ and against the proclamation.

KIRBY J: I appreciate that, but just assume everything – all the issues are decided in your favour, that lies in wait as a trap at the end, because that is a fundamental principle of election law, quite apart from the Act, that you do not set aside elections, and especially, one might say, national elections and especially after so many years, unless it would lead somewhere.

MR KELLY: Well, your Honour, I challenged this prior to the nomination even taking place. I have not been slow in trying to challenge these issues. I have just not been successful. But the issue that you raise, can I say this to it. I can demonstrate on the evidence, beyond doubt, that my group’s nomination would have made a difference to the last position of the Senate, when we come to that. What I say to the Court on that respect is this, that how can anyone plead the effect of a nomination that should have lawfully been accepted not being accepted? I mean, I pleaded that. It was not accepted. I pleaded that my group was not on the ballot paper.

GLEESON CJ: Yes, thank you, Mr Kelly. We do not need to hear you, Mr Basten.

The material before the Court shows no sufficient reason to doubt the correctness of the decision of Justice Gummow to warrant a grant of leave to appeal and no basis in fact or law for the issue of constitutional writs sought. Accordingly:

1.	Leave to appeal from the decision of Justice Gummow is refused;
2.	The extension of time sought in relation to the application for constitutional writs is refused;
3.	The application for constitutional writs is dismissed; and
4.	The applicant must pay the respondent’s costs of the applications.

AT 2.24 PM THE MATTER WAS CONCLUDED