Attorney General of New South Wales v Laurie & Ors [2011] HCATrans 31 (11 February 2011)

Last Updated: 18 February 2011

[2011] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S218 of 2010

B e t w e e n -

ATTORNEY GENERAL OF NEW SOUTH WALES

Applicant

and

PATRICIA HELEN LAURIE

First Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Second Respondent

ELECTORAL COMMISSIONER OF NEW SOUTH WALES

Third Respondent

BRIAN DECELIS, RETURNING OFFICER

Fourth Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 12.17 PM

Copyright in the High Court of Australia

__________________

MR M.J. LEEMING, SC: May it please the Court, I appear with my learned friend, MS K. RICHARDSON, for the applicant. (instructed by Crown Solicitor (NSW))

MR J.K. KIRK: May it please the Court, I appear for the second respondent. (instructed by Chalk & Fitzgerald)

FRENCH CJ: I note that there has been no appearance filed on behalf of the first respondent and an affidavit of service has been filed in relation to it. Yes, Mr Leeming.

MR LEEMING: Thank you, your Honour. There is one other procedural matter, this application was filed one day late, although the papers were served in time.

FRENCH CJ: There is no objection to an extension time. I should have added, there is a submitting appearance from the third and fourth respondents.

MR LEEMING: If it please the Court.

FRENCH CJ: Yes, all right.

MR LEEMING: As the Court knows, this is an application which presents no contested facts at all. In fact, the whole of the factual background can be exposed in a paragraph. It is a pure question of principle, we say, or three or four pure questions of principle.

FRENCH CJ: Or a rather messy interaction of two statutes, in particular and peculiar perhaps to New South Wales.

MR LEEMING: We would resist the notion that there - - -

FRENCH CJ: The interaction, I mean.

MR LEEMING: We have embraced the notion that there is a difficult interaction between the two, given also the legislative history of both of them. We would resist the notion that it is solely confined to New South Wales but even so, we say there are general questions of importance throughout New South Wales and, we say, going further that follow from the divided decision of the Court of Appeal if it stands.

FRENCH CJ: The factual position at the moment, Ms Laurie has been re-elected, has she?

MR LEEMING: Yes. I must deal immediately with the practical consequences quite properly at the forefront of my learned friend’s summary in response. Does the Court have the affidavit of Mr McDonnell filed earlier this week, on the 8 February?

FRENCH CJ: Yes.

MR LEEMING: The consequence, of course, of the majority of the Court of Appeal was an election held last December at which Ms Laurie was permitted to stand.

FRENCH CJ: The finding of a casual vacancy on the basis of which she stood and, of course, the five years had passed.

MR LEEMING: It was an election, not a casual vacancy, but, yes, your Honour is quite right. She stood and lost. She came second and there is another candidate, a successful candidate Mr Donnelly, who is serving out the last six or seven months of his term.

FRENCH CJ: I see. I am sorry, I misread.

MR LEEMING: Also there is to be a fresh election this coming August.

BELL J: August, yes.

MR LEEMING: I am at pains to say that whatever happened today and at any subsequent case if special leave be granted, it is very difficult to see any practical consequence descending upon Ms Laurie. My learned friend, in his submissions, disavows any intention to seek to recover the benefits that were paid to her. That can all be put to one side. That is probably to my advantage since Ms Laurie is not here. Also, it is very difficult to see how there could be any practical consequence to Mr Donnelly, the successful candidate at the election last December.

This quite purely and simply, we say, raises important questions of principle, first of all, for every subsequent election for the New South Wales Aboriginal Land Council, something which this Court a couple of years ago remarked was an important body in New South Wales, and perhaps that is why the Court of Appeal’s decision is now reported in [2010] NSWCA 199; 175 LGERA 247, but beyond that, it raises questions in relation to other electoral mechanisms because there is a deal of similarity between what in general terms is a Court of Disputed Returns with a closed window of opportunity at which challenges to the validity of the election they be presented from which there is no appeal.

As the Court has observed, this all turns on questions of construction. To approach whether there are sufficient prospects of ultimate success in my attack on the construction adopted by the whole of the Court of Appeal and, further, by Justice Handley as to part, it is convenient, perhaps, to step back and look at the outcome.

FRENCH CJ: A core problem, if I have not misunderstood the materials, is the kind of falling between two stools thing. The conviction does not appear to inform qualifications but, rather, your ability to serve as a councillor. They do not seem to kick in at the point of standing for election, as it were.

MR LEEMING: Yes, that is our point. For whatever reason, this scheme does not have a perfect obverse between the two concepts that can be seen from a disqualification from holding office, holding office itself being determined by the declaration of the returning officer and ability to stand. In fact, we would say what flows directly on the face of the statute, and for good reason, there are many and discretionary aspects upon which an elected candidate can be disqualified, including merits review in the Administrate Decisions Tribunal and appeals there from.

FRENCH CJ: Merits review of what? The registrar’s discretion?

MR LEEMING: Yes, your Honour, I think so. Contrast that with the understandably simpler approach of working out whether this field of people, each of them, satisfies requirements to stand for office.

BELL J: Can I just raise this with you. You do not put in issue, do you, the conclusion discussed in Justice Basten’s judgment that - - -

MR LEEMING: No, we embrace that. The casual vacancy?

BELL J: No, it is the question of whether the Land and Environment Court has the jurisdiction to deal with challenges in the nature of quo warranto that otherwise would lie under section 70 of the Supreme Court Act.

MR LEEMING: Positively asserted.

BELL J: So I think it is put against you that the important point that you seek to ventilate has some level of subtlety about it in practical terms.

MR LEEMING: Yes.

BELL J: The issue is, was the first respondent validly elected but from the moment of election not qualified to hold office or was that circumstance, namely, her disqualification, one that affected the validity of her election?

MR LEEMING: Indeed.

BELL J: To the extent that you pray in aid the desirability that there be certainty about elections and, accordingly, the construction that you place on section 125, for practical purposes having regard to the jurisdiction to deal with challenges in the nature of quo warranto, that aspect of certainty does not go, albeit there is not another election. The mechanism is replacement by the regulations.

MR LEEMING: By the Minister pursuant to the regulations running down the list, the next candidate on the list from the returning officer. Yes, indeed, agree with all of that and have to concede that whichever construction be the correct construction of this regime, in a case like the present there will not be certainty throughout the term of the composition of this important body. That is a necessary incident of the nature of the beast where one has scope for disqualification and given the proceedings for review – and while one is there in my learned friend’s bundle of authorities behind tab 1, the extracts from the primary Act, we have not referred to it, but 136 and 137 respond to what your Honour Justice Bell puts to me.

One can see that from the terms of 137, as appears in other places in the State electoral context at least, nothing happens until the appellate process has been resolved. So the capacity for there being uncertainty in terms of composition is there, whatever happens, and I accept that stands against me to an extent. What we dispute, though, is the notion that there is some subtle distinction. We say it is very blunt and very easily stated and once easily stated, easy to see how it is difficult to reconcile with the statutory language because there are three possibilities in the universe.

The rather unmeritorious one, if I may say so, propounded by Ms Laurie herself saying, “You did not find out in time. Now more than five years have gone past and I am in.” That has always been rejected and no one is contending for that. My learned friend’s approach, really that of the Court of Appeal that my learned friend adopted when the Court of Appeal proposed this late cross-appeal, namely, you can declare invalid an election held three years ago that was not challenged in the way expressly contemplated by the Act, and the approach that I contend for which has the consequence of a casual vacancy and so a very different outcome.

Now, just stepping aside for one moment before descending into the detail, it is another odd result that not merely can you challenge the validity of an election three years down the track, but also the consequence of the challenge is that the woman whose conduct caused the invalidity is herself able to stand again at the new election. It may be possible that that is the true construction of the legislation, but we would say that is unlikely. Then when one turns to the legislation itself, and can I do that very briefly, it is difficult, if I may say so with respect, to reconcile the outcome of the Court of Appeal, the majority of the Court of Appeal on this point, with what is seen squarely in section 125 of the Act behind tab 1, importantly, the last three words “and not otherwise”. There is no dispute that that mechanism was not availed of. The Court will note the 28 day period in 125(2).

BELL J: But all the members of the court approached the matter on the basis that conventionally a distinction is drawn between challenges to elections based on the qualifications of the electors or the returns and the quite discrete question of the disqualification going to the candidate.

MR LEEMING: Indeed, and we seek to use that against their Honours and my learned friend, with respect, because we say here too, particularly in Justice Handley’s reasons which are adopted by Justice Basten in this respect, there is an uncritical adoption of the 19th century English cases. In the Wood decision in this Court in a completely different constitutional context, because one cannot by statute get over what section 44 says, of course, and in a completely different legislative context. The two In re Wood decisions make it very clear that there were two parts, two divisions, in Part XXII of the Electoral Act. In one the privative clause was effective and the other, not. Here, of course, there is only one.

Added to the context and the terms of 125 and 128, there is the structural matter that is characterised as a typographical error in the legislation. Can I just make that good, because it is a little difficult perhaps to see when one reads it. It is behind tab 2 in the Act and this really picks up what your Honour the Chief Justice said to me about the two regimes. Not merely do I have, I say, the privative clause protection of course to be construed against the rest of the statute in accordance with S157 and QSR v Batterham, but at the level of jurisdiction – and something which is of some importance, of course, in this State because this superior court’s jurisdiction, the Land and Environment Court, subtracts from that of the Supreme Court in a very significant and important way and they are lurking behind all of these questions arising under section 73, none of which have been agitated nor arise on this application, I should say.

If the Court has section 20(2), which is on page 5 of 7, the Court can see that in general terms the 75(v) jurisdiction – the State counterpart of 75(v) administrative law, mandamus, certiorari, injunction, declaration jurisdiction, in respect of things called planning or environmental laws, is conferred upon the Land and Environment Court and subtracted from the Supreme Court. That is the force of section 71. So this is the only place where all of those Acts listed in subsection (3), which are the planning or environmental laws, can be adjudicated where there is claimed to be a breach of duty or a non-performance of function.

The typographical point, of course, is the bracketed words in the first entry under 3(a), the Aboriginal Land Rights Act. Not all of that is planning or environmental law. All of it, except Division 5 of Part 7 and at one stage, although not now – at the moment Division 5 of Part 7 is very hard to see it is ever going to be litigated – but at one stage that was what contained section 125 and section 128. That is picked up in (dd) on the previous page, page 4 of 7, a separate grant of jurisdiction for the Court of Disputed Returns. So I have in my favour, when one approaches the statutory construction argument, not merely the plain words of 125 and 128, but also this jurisdictional, structural selection or discrimination between the whole of the Act, except for the Court of Disputed Returns and the balance.

The only other thing I wanted to say on that is all of the members of the Court of Appeal said the consequence of our reasoning is Ms Laurie was never elected, was never a councillor. That is a statement which, I am at pains to say, is unlikely to have much practical consequence for her given the stance in relation to the benefits that were paid, but it is, with respect, difficult to reconcile with what is said in 124. Section 124 of the Act makes it plain, we would say, and understandably, given the contemplated possibility of ongoing challenges to the Constitution, including in other places such as the Administrative Decisions Tribunal, that makes it plain that there is a.....rule applies – or the indoor management rule applies and what happens pursuant to a purportedly constituted council. Even if there be a subsequent successful challenge, nothing that the person who is the subject of a public declaration under 124(2) subtracts from the efficacy of the conduct.

With respect, it is easy to see why the Court of Appeal, paragraphs 50 and 115, make that statement because if you are going to

declare the election invalid, it is easy to see how that consequence flows. That, we would say, though, flies in the face of 124, especially 124(4), and is, with respect, yet another reason why the statutory construction for which we contend ought be preferred.

Your Honours have our written submissions. The simple point is that the facts are clear. The questions are important. They are pure questions of law. It is a short appeal. If it be erroneous, as we say it is, then it is going to be followed, first of all, one might think whenever the situation arises again in important elections under this regime and it will be used in the way that this Court has already heard this morning, in earlier special leave applications in other contexts, we would say not confined to New South Wales. May it please the Court.

FRENCH CJ: Yes, thank you, Mr Leeming. Yes, Mr Kirk.

MR KIRK: Your Honours, may I begin by not making the submission that my learned friend has no prospects of success. I could hardly say he has no prospects of success when he is really putting alternative argument in both courts below. The primary position of the State Land Council was always that she was never validly elected. The secondary position was that if she was, it was for the nanosecond – it became known as the nanosecond argument – but then was immediately disqualified pursuant to section 132. My learned friend, with respect, was a little unfair to say that this came from the Court of Appeal. The Court of Appeal’s point was they wanted the full smorgasbord of arguments available to them where Ms Laurie had appealed and we had not cross-appealed because we had won on the secondary argument not the primary argument. We then cross-appealed to bring the primary argument back into play and it is that argument on which we won. That is the first point.

Secondly, I respectfully embrace what your Honour Justice Bell has said about narrowing down quite what is in dispute between the parties because it is subtle and a very small difference in practical terms. My learned friend does not say that the Land and Environment Court did not have jurisdiction to deal with this. It all turns on reconciling the two issues, two sides of the same coin, about the jurisdiction of the Land and Environment Court to deal with electoral matters and on the other side of the coin, the link or not between notions of qualification and disqualification.

The only point of any merit, I would respectfully put, or potential merit in the special leave application is to say that this has potential broader significance for other elections. It is true that section 125(1) of the Aboriginal Land Rights Act has, let us call it, a privative clause in fairly standard terms which is reflected in all sorts of electoral schemes for Parliaments, local governments and so forth throughout the country. The point we have always put in response to that is to say there are two broad issues at stake here and, indeed, I understood my learned friend to embrace this notion, that on the one hand there are the issues of conduct of elections and on the other there are issues of qualifications and vacancies.

Now, the two can overlap because issues of qualification and vacancy can be raised in Courts of Disputed Returns. The jurisdiction of Courts of Disputed Returns is much, much broader than simple legal questions. It goes, as your Honours well know, to the whole conduct of the election, from how you count the votes to whether there is bribery of candidates or officials to whether misleading how to vote cards have been handed out which might have influenced the result. It is a form of merits review in many ways. That type of review of elections has for some time been subject to this strict limitation period manifest in section 125, but the issue of qualification and vacancy has always been treated separately. By always, I mean for centuries.

That is illustrated in this Court’s decision in In re Wood and the preceding decision in Nile v Wood. Mrs Nile sought to challenge within the Court of Disputed Returns the election of Mr Wood as a New South Wales senator, but her attempt to raise the particular issue was outside the strict 40 day limitation period and so, in Nile v Wood, this Court said you cannot do that. Then, pursuant to the reference power, the Senate referred the question of qualification and vacancy to this Court. Again the jurisdictional argument was raised, much analogous to this one, to say, well, in light of the limitation period, how could this Court deal with the reference when it is outside the 40 days? That argument was rejected by this Court. That reflects that long-established historical difference.

That difference was, with great respect, well explained by your Honour the Chief Justice in Blurton v Minister for Aboriginal Affairs. If I might take your Honours briefly to that. That is at tab 7 of the bundle of materials. Your Honour may recall this was a case of some complication and I will not bog your Honour in the details. It involved an election to ATSIC and actually an ADR challenge to the Minister’s decision not to refer - - -

FRENCH CJ: They had a similar sort of electoral model, as I recall, region.

MR KIRK: Yes. Could I take your Honours first and briefly to page 447 within your Honour’s judgment. This set out two sets of provisions in Schedule 4 of the ATSIC Act. At about point 2, your Honours will see:

Schedule 4 to the Act is entitled “Disputes About Electoral Matters” –

Then subclause (1), “The validity of any election”, et cetera. Now, that is very much the same terms as section 125(1). It is very much the standard model. But if your Honours read on at about point 5 of the page, another point of the Schedule, headed “Qualifications and Vacancies” it said:

“(1) Any question respecting:

(a) the qualifications of a member of a Regional Council; or

(b) a vacancy in a Regional Council;

may be referred to the Court by the Minister.

(2) The [Federal] Court has jurisdiction to hear and determine the question.

The actual issue there was that the Minister had declined to refer a question. Now, your Honour the Chief Justice, starting at page 451, set out a little of the history here which, of course, goes back a long way. As your Honour noted at page 451 at about point 7 under the heading the:

The words of s 17 of Sch 4 to the ATSIC Act have some albeit a tenuous historical connection –

to the House of Commons where traditionally the House of Commons had its own power to determine things, but then referred what might be called the disputed returns jurisdiction to superior courts, but then at about point 8:

as T E May pointed out, even the Representation of the People Act did not supersede the power of the Houses of Parliament in Great Britain to determine questions affecting the seats of their own members not arising out of controverted elections.

Over the page, page 452 at about point 3, your Honour noted that:

The distinction between questions respecting qualifications or vacancies on the one hand and disputed elections on the other was apparent in the provisions of the Constitutions of Canada and the United States . . . It was a distinction clearly in the minds of those who participated in the Convention Debates –

in Australia. I will not take your Honour through the rest of that. In the end, the distinction was not manifest in the Constitution. As your Honour notes towards the end of the page, right back at the beginning of the Federation, the Commonwealth Parliament in the 1902 Act gave a disputed returns jurisdiction to this Court, but did not give the qualification and vacancy jurisdiction until sometime later. All this illustrates this, in a Parliamentary sense, was always a matter for the Houses that we have had the kind of two steps where these things have been treated separately. Your Honour goes on to note at page 453, just under the quotation at about point 6, beginning of the third line:

If a person, qualified when elected, is alleged to have fallen into one of the classes of disqualification under s 102 of the Act, then if that allegation is disputed it may be referred under s 17 of the Schedule. It enables questions of qualification and vacancies arising independently of the electoral process to be determined by a court. That is not to say that there will not be cases in which there will be an overlap between the petition and referral processes where a controverted election throws up a question of qualification.

That makes good what I said in the beginning, that the two issues overlap, as discussed in Blurton, as illustrated in the Wood litigation, but the fact that there is a very strict limitation period on the disputed returns jurisdiction does not speak to the qualification or vacancy jurisdiction and, to be frank, it would be very surprising if it did. If the disqualification is of an ongoing nature, it would be very odd if a purported privative clause in an Act said, well, although the person is disqualified and although it still speaks to them, that cannot be litigated in a court. That is why we say these decisions are perfectly orthodox.

Can I then deal with the issue that my learned friend says – this is, as I say, my learned friend’s best special leave point – is to say this has great significance for other statutory schemes. It will always turn on the particular terms of the statute, both as to the grants of jurisdiction and as to the qualification/disqualification issue. Can I illustrate that by reference to the New South Wales parliamentary position. If your Honours turn first to tab 3, your Honour will find extracts from the New South Wales Constitution Act 1902 and turning to section 13, this deals, in a sense, first with a qualification or disqualification issue. In section 13(1) your Honours will see that this is the pecuniary benefit clause and your Honours will note the fifth line:

shall be incapable of being elected or of sitting or voting as a Member of the Legislative Council or Legislative Assembly –

The terms of our statute the Aboriginal Land Rights Act is holding office. That is, in a sense, a more mandatory sense. You cannot be elected or sit or vote. So any dispute about that will turn on those terms. Similarly, sub (2). Section 13A, over the page, your Honours will also note:

(1) If a Member of either House of Parliament –

does various things, your Honours might note (e):

(e) is convicted of an infamous crime . . .

his seat as a Member of that House shall thereby become vacant.

Again, any dispute about that will turn on what those words mean which are quite different from our statutory words. If your Honours then turn over the tab to tab 4, your Honours will see the Parliamentary Electorates and Elections Act 1912. My learned friend referred to section 155 in his written submissions which is the standard kind of privative clause directing all electoral petitions into the Court of Disputed Returns and there is a strict limitation period on time, although I am not quite sure where it emerges from. If your Honours then turn to page 5 of the printout, your Honours will find section 175B:

Any question respecting the qualification . . . may be referred by resolution of the Legislative Assembly to the Court of Disputed Returns –

Quite different from our scheme here. Let me postulate the sort of case which my friend is, in a sense – the sort of spectre my friend is trying to invoke. The sort of spectre my friend is implicitly trying to invoke will be a very interesting case where there is a candidate who was perhaps disqualified when elected for some reason, perhaps its citizenship. No one finds out until after the limitation period has expired. The House declines to refer the question, perhaps for political reasons, to the Supreme Court. Can that person then challenge in the Supreme Court? My friend would say, well, this authority says yes. But that question, interesting as it will be, will turn upon particular words of the statute first, secondly, whether the English traditional practice about deference to the House on these matters survives in the Australian constitutional context.

Thirdly, how you reconcile that with what this Court has said in the Communist Party Case, S157, Bodruddaza about time periods, and Kirk. It will be a fascinating case. I hope I get a brief. This decision of the Court of Appeal will be at best a footnote because it will turn on history, purpose, context and the words of the statute and not on what the Court of Appeal has said about the Aboriginal Land Rights Act. It is relatively plain, in my respectful submission, that it does turn very much on the terms of the statute, as all these disputes do. The result achieved by the Court of

Appeal’s decision is perfectly practical, it is perfectly reasonable. As with many questions of statutory construction, you can reasonably take a different view.

This is an acceptable, practical result. It is not of great precedential value. It is true, it matters for the State Land Council. I am not going to say that is not an important thing. The State Land Council accepts it is a practical result and if it proves impractical, it is a New South Wales statute which can be amended relatively readily. For those reasons we submit special leave should not be granted. If your Honours were inclined to grant special leave, I would seek to be heard separately on costs.

FRENCH CJ: Yes, thank you, Mr Kirk. Yes, Mr Leeming.

MR LEEMING: If it please the Court. Three points. First of all, we recognise that important to this Court’s discretion is the wider, as we say, applicability of this decision. My learned friend, taking up that challenge took the Court to tab 4, the Parliamentary Electorates and Elections Act 1912. The time period, which is strict, that he did not give the Court a reference to is at the first page. It is 157(e). It is 40 days instead of 28 days, nothing turns on that.

We say the structure that can be seen by 155 and 157(e) is exactly the structure that can be seen in 124, 125 and 128 of this Act. That is a structure that is, with respect, difficult to reconcile with the order by majority of the Court that outside time there can be not merely a decision that someone is not qualified, but a declaration that the election is invalid. As I understood my learned friend, none of his submissions sought to grapple with how it can be said that the Court of Appeal’s majority decision on that point can be reconciled with the statutory regime.

Secondly, he took the Court to In re Wood. Can I give your Honours, please, a reference at 162 behind tab 6 at about point 9 of the page. The joint judgment of this Court emphasised, seven lines up from the bottom:

The constitutional requirement is not satisfied by a de facto election –

It is in that context then that the early English cases are discussed. That makes it absolutely plain, we would say, that one has to be careful in uncritically applying In re Wood in the State regime. Lastly, on subtlety. My learned friend, it is a tribute to him that he can put in that inimitable style that this is really how many angels are dancing on the end of a pin. It is true that, of course, the questions of construction are fine and precise, but the outcome, as your Honour Justice Bell said, is radically different.

One only has to look to Mr McDonnell’s second affidavit. Had Ms Laurie got an extra 12 votes the force of the radical difference in the outcome of statutory construction between what the Attorney contends for, casual vacancy, and the re-election, which is what – is far from subtle. It is as blunt as you can get. It affects decisively the outcome. It is as simple as this. We say she could never be elected.....says she had a chance to stand again and she almost did get elected for the balance of the term. May it please the Court.

FRENCH CJ: Thanks, Mr Leeming.

The application throws up questions of statutory construction under the Aboriginal Land Rights Act and the Land and Environment Court Act relating to the qualifications of persons to be elected to the New South Wales Aboriginal Land Council, the qualifications of persons to hold office in the New South Wales Aboriginal Land Council and disqualifications therefrom, and the jurisdiction of the Land and Environment Court as a court of disputed returns under section 125 of the Aboriginal Land Rights Act and its interaction with the general jurisdiction of the court under section 20 of the Land and Environment Court Act.

In our opinion, the questions of construction presented relate to the interaction of two New South Wales statutes which are complicated by deficiencies in the statutory scheme so far as it applies to elections to the New South Wales Aboriginal Land Council. The approach taken by the Court of Appeal in this case, in our view, reflected a construction of the relevant provisions that was reasonably open and is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs.

We will now adjourn until 2.15 pm.

AT 12.52 PM THE MATTER WAS CONCLUDED