Hudson v The Hon Warren Entsch MP [2005] HCATrans 31 (7 February 2005)

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Hudson v The Hon Warren Entsch MP [2005] HCATrans 31 (7 February 2005)

Last Updated: 18 February 2005

[2005] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Brisbane No B71 of 2004

B e t w e e n -

ANTHONY JOSEPH HUDSON

Petitioner

and

THE HON WARREN ENTSCH MP

Respondent

For directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 7 FEBRUARY 2005, AT 12.00 PM

Copyright in the High Court of Australia

MR A.J. HUDSON appeared in person.

MR R.N. ALLDRIDGE: May it please the Court, I appear for Mr Entsch, the respondent to the petition. (instructed by Miller Bou-Samra Lawyers)

MR S.J. GAGELER, SC: If the Court please, I appear for the Australian Electoral Commission, the moving party on the summons filed 2 February. (instructed by Australian Government Solicitor)

GUMMOW J: Yes. Now, the Electoral Commission has the statutory right under section 359 of the Commonwealth Electoral Act, does it not?

MR GAGELER: Subject only to the leave of the Court.

GUMMOW J: Yes, that is what you now seek.

MR GAGELER: That is what I seek.

GUMMOW J: Yes. Is that opposed?

MR HUDSON: Yes, your Honour.

GUMMOW J: Why?

MR HUDSON: The affidavit does not contain a name of the person who was authorised to take the affidavit as required by the rules.

GUMMOW J: We are talking about the application of the Electoral Commissioner?

MR HUDSON: Yes, your Honour.

GUMMOW J: What is the affidavit in support, Mr Gageler?

MR GAGELER: The affidavit of Barry Cosgrove of 2 February 2005, your Honour. It is a purely formal affidavit and, indeed, it is not an affidavit that I felt it necessary to read for the purposes of the present application.

GUMMOW J: Yes. Yes, you have that leave, Mr Gageler.

MR GAGELER: Thank you.

GUMMOW J: You then have a summons, do you?

MR GAGELER: Yes. Your Honour has really granted the first of the orders sought in summons and the second of the orders sought is a referral for trial to the Federal Court, which is an order capable of being made under section 354 of the Commonwealth Electoral Act.

GUMMOW J: Yes. And the order sought, order 2, that:

The petition be referred for trial to the Federal Court of Australia, Queensland District Registry, subject to the following directions:

(1) The proceeding be continued in the Federal Court as if steps already taken in this Court, including the filing of this Summons, have been taken in the Federal Court;

(2) The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and the deposit which has been lodged pursuant to section 356 of the Commonwealth Electoral Act 1918 (Cth).

That is the order sought in paragraph 2 of the summons of the Commonwealth Electoral Commission, filed on 2 February. Is that order opposed?

MR HUDSON: Yes, your Honour.

GUMMOW J: Why?

MR HUDSON: I would ask the Court to remit the questions of fact to the Federal Court, but in regard to the question of law in relation to the freedom of political communication, and whether or not the freedom of political communication is a political right that is protected from interference under section 327 of the Commonwealth Electoral Act, that question is such a serious question for our constitutionally established system of government that its determination is a matter for the High Court, your Honour.

GUMMOW J: It may ultimately - - -

MR HUDSON: Further - - -

GUMMOW J: Yes, go on.

MR HUDSON: The question of law arises due to the AEC’s published admissions that the precise scope of section 327 is not clear. The AEC claimed that there is an unresolved question as to whether 327 protects only enrolment, nominating and voting, whilst excluding from protection campaigning, advertising, debating and criticising. As section 327 prohibits any hindrance with any political right, the question that arises is, is the freedom of political communication a political right covered under section 327?

We would submit, your Honour, that Justice McHugh in Australian Capital Television at section 21 covered that matter. I could read it onto the record for the Court if you wish, your Honour.

GUMMOW J: No, I am familiar with that case. Yes.

MR HUDSON: In that particular section, he said that:

The words “directly chosen by the people” . . . are to be read, therefore, as referring to a process – the process which commences when an election is called, and ends with the declaration of the poll. The process includes all those steps which are directed to the people electing their representatives – nominating, campaigning, advertising, debating, criticizing and voting. In respect of those steps, the people possess the right to participate, the right to associate and the right to communicate.

There is a question of law in regard to the AEC’s interpretation of the constitutional freedom of political communication and its protection under section 327, your Honour.

GUMMOW J: Now, how does 327, Mr Hudson, find its way into Part XXII, which is the disputed returns?

MR HUDSON: I am not sure - - -

GUMMOW J: You have to bring your petition within Part XXII, which starts at section 352. How does a complaint about section 327 connect with the grounds of a petition?

MR HUDSON: Okay. My understanding, your Honour, is that we are entitled to file a petition disputing an election if we believe that illegal conduct under the Electoral Act has been engaged in.

GUMMOW J: Yes.

MR HUDSON: And that as my federal member, the Honourable Warren Entsch, has gone on public television and acknowledged inciting other people to knock my political signage down, that contravenes section 327 of the Electoral Act.

GUMMOW J: Yes. Is there anything else you want to add?

MR HUDSON: Yes, your Honour. In regard to the questions of fact, we submit that the Federal Court is the court to establish the questions of fact, but in regard to the question of law, because that question has already arisen before the High Court, and because the Australian Electoral Commission – I will just find another piece of paper, your Honour.

GUMMOW J: Yes.

MR HUDSON: In Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 Justice Brennan made the comment that:

To sustain a representative democracy embodying - - -

GUMMOW J: Yes, I am familiar with all these cases, Mr Hudson. The question is a very immediate one, though, as to what order I now make. Is there anything you want to say about that?

MR HUDSON: Well, yes, your Honour. I submit to the Court that the question in regard to the relationship between the freedom of political communication and section 327 of the Commonwealth Electoral Act is a matter for the High Court rather than the Federal Court to determine.

GUMMOW J: Thank you. Now, what do you say about this, Mr Alldridge?

MR ALLDRIDGE: The respondent supports the current summons, your Honour, and certainly supports the application in particular for the transfer to the Federal Court. It is trite to say, with respect, that court is as capable of handling questions of law as it is questions of fact, and I support the transfer.

GUMMOW J: Yes. What do you say, Mr Gageler in response?

MR GAGELER: Your Honour, the question of law may or may not arise. There are some formal difficulties with the summons. To some extent, it sets out conflicting evidence rather than attempting to set out the facts as required by section 355(a). That may or may not result in the summons being dismissed on a preliminary application by reason of section 358, but, assuming the summons to survive, then the matter would appropriately go for trial, and the question of law, which I accept is a serious question of law, would ultimately fall to be determined on the facts as found.

GUMMOW J: Yes. How does section 327 connect into Part XXII?

MR GAGELER: If your Honour goes to section 352 - - -

GUMMOW J: Yes.

MR GAGELER: - - - there are two relevant definitions.

GUMMOW J: Undue influence.

MR GAGELER: Undue influence and illegal practice.

GUMMOW J: Yes, and 327 is undue influence.

MR GAGELER: Yes, so it would be illegal practice as well as a particular form of the legal practice being undue influence.

GUMMOW J: Yes.

MR GAGELER: One then goes to section 362, and what your Honour will see is that relief depends in part upon who has engaged in the undue influence. So, under section 362(1), if it was shown that Mr Entsch had engaged in undue influence - - -

GUMMOW J: He being the successful candidate.

MR GAGELER: Yes. The election would be declared void, whereas, under subsection (3), if there were found to be undue influence, a breach of section 327 by someone other than Mr Entsch or someone acting with his knowledge and authority, then there would only be an order invalidating the election if the court were satisfied that the result of the election was likely to be affected.

HIS HONOUR: Yes, thank you.

Having heard what the parties have had to say on the subject, I think an order should be made in terms of order 2 of the summons by the Australian Electoral Commission filed on 2 February and the result is that:

The petition be referred for trial to the Federal Court of Australia, Queensland District Registry, subject to the following directions:

1. The proceeding be continued in the Federal Court as if steps already taken in this Court, including the filing of this Summons, have been taken in the Federal Court;

2. The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and the deposit which has been lodged pursuant to section 356 of the Commonwealth Electoral Act 1918.

The balance of the summons and other outstanding matters then will be for the attention of the Federal Court in the Queensland District Registry and the parties will be aware of the provisions of section 363A of the Commonwealth Electoral Act enjoining the courts to make their decision on a petition as quickly as is reasonable in the circumstances.

MR HUDSON: May I make a further request of the Court, your Honour.

HIS HONOUR: Yes.

MR HUDSON: I believe there is a branch of the Federal Court in Cairns and as all of the witnesses to this matter and the respondent and myself all live in Cairns, would it be possible to have the Federal Court in Cairns conduct this matter?

HIS HONOUR: That may well be possible, Mr Hudson, but I think initially it should go for administrative purposes to the Federal Court in their Queensland District Registry, which is headed in Brisbane, and they may well respond to any application you then make, but I will not direct them at this stage what they do within their own house, as it were.

MR HUDSON: Thank you, your Honour.

HIS HONOUR: Thank you.

AT 12.14 PM THE MATTER WAS CONCLUDED