Re Nash [2017] HCATrans 272 (22 December 2017)

Last Updated: 22 December 2017

[2017] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C17 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING THE HON MS FIONA NASH

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 22 DECEMBER 2017, AT 10.14 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: May it please your Honour, I appear with MR M.P. COSTELLO, for the Commonwealth Attorney-General. (instructed by Australian Government Solicitor)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR B.K. LIM, as amicus curiae. (instructed by Australian Government Solicitor)

MR A.R. MOSES, SC: If your Honour please, I appear with my learned friend, MR P.G. SHARP, for Mr Molan and Senator Fierravanti-Wells. (instructed by Harpur Phillips)

HIS HONOUR: Mr Solicitor.

MR DONAGHUE: Your Honour, I hope, has seen that we filed an amended summons on 19 December 2017, seeking a declaration that Jim Molan is duly elected as a senator for the State of New South Wales. My submission is that your Honour should make that order today. The question whether, having done so, anything remains to be dealt with within the reference is, in our submission, a separate question, and if your Honour is persuaded by Mr Kennett that there is a remaining question concerning the length of the terms of Mr Molan or any other senators, then that is a question that could be dealt with at a subsequent date.

If I can briefly develop the reasoning behind those submissions – it will not take me very long, your Honour. In our submission, the starting point is that the Full Court of this Court has already answered two of the questions that were referred to the Court by the Senate: questions (a) and (b). Question (a) was whether there is a vacancy in the place for which Senator Fiona Nash was returned. And question (b) was if there is a vacancy, then by what means and in what manner that vacancy should be filled.

In answering that question as to the means and manner, the Full Court said the vacancy should be filled by a special count of ballot papers. Consistently with that answer your Honour then made orders to bring about that special count. The relevant special count occurred on 22 November 2017, as your Honour will have seen in Mr Austin’s affidavit, affirmed on 22 November 2017.

As we understand the position, there is no dispute that that special count identified Mr Molan as a person who was elected to sit in the Senate and nothing that the amicus now advances casts any doubt on Mr Molan’s entitlement to sit and vote in the Senate. That being so, in our submission, it is in the public interest that Mr Molan be able to take his seat in the Senate and to vote on the business of the Senate thereafter before the Senate next sits, which is due to occur on 5 February.

In order to take his seat in the Senate Mr Molan needs an order that he has been duly elected. Your Honour will recall from other matters that the effect of an order under section 360 of the Commonwealth Electoral Act that a person be declared duly elected is that under section 374(ii) of the Commonwealth Electoral Act the effect of such a declaration is:

the person may take his or her seat accordingly –

So the reference is to the taking of seats. It has got nothing to do with places.

The only order that we seek in our summons is an order that Mr Molan be duly elected, which would intersect with that provision and entitle him to take his seat in the Senate thereafter. And in circumstances where there is no dispute that, as I say, he should be able to sit and vote, in our submission, it is appropriate that the order be made.

Against that, it is said not that the order is inappropriate but that “it is incomplete” seems to be the way the amicus puts it. If they be right about that, then that might mean that something more is required in order to complete the reference. But it is not a reason not to go as far as we ask your Honour to go today and to make the declaration with respect to Mr Molan.

Your Honour will have seen from our written outline that we do contend that nothing would remain to be done thereafter in order to dispose of the reference. The amicus, in making submissions about the filling of places, seem in their written submission to tie that primarily to the wording of question (b) about the means and manner by which the vacancy be filled. But, as I have already indicated, in our submission, that question has been answered. No function remains for the Court in respect of the answer to that question and so much was recognised in Nash (No 2) at paragraph 17. In our submission, therefore, the question is whether, under question (c) of the referred questions, which was:

(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference –

it is appropriate for the Court to embark upon an examination of the length of the terms not just of Mr Molan but also of two other members of the Senate, Senator Fierravanti-Wells and Senator Williams, both of whom, on any view of it, were duly returned, whose places are not vacant and who are not the subject of any reference from the Senate to this Court. And, in our submission, when one looks at question (c) it is quite plainly ancillary in terms of giving effect to the answers given to questions (a) and (b), and we submit that it is a very large proposition to contend that it extends not just to orders about Mr Molan but orders about other senators never referred.

If it be the case that the Senate needs some assistance in identifying the length of the terms of senators following the declaration that Mr Molan is duly elected then, in our submission, there would be no impediment to the Senate referring a question with respect to that matter to the Court under section 376. But, in the absence of a question raising that issue, in our submission, the matter remains within the exclusive cognisance of the Senate under section 47 of the Act.

Now, if your Honour is not persuaded by any of that and you consider that there is a matter that requires determination, even if Mr Molan is duly elected, in our submission there is no impediment to adopting the course proposed, I think, on behalf of Mr Molan of referring whatever questions your Honour considers remains to be determined in the reference to a Full Court to be heard and determined therein.

One difficulty, we submit, that arises in relation to assessing whether that is an appropriate course is that, at the moment, the amicus has floated a number of constitutional questions without actually committing themselves to whether or not there is a particular argument to be advanced. So that, for example, in relation to section 13 of the Constitution, in the latest submissions that the amicus has filed, it is said at paragraph 7 that there is, at least, a doubt about whether the Court can what is said to be compel the Senate and, more relevantly, the second sentence:

There is also doubt as to the source of power for the Senate so to act.

In paragraph 9, it is said:

There are also difficulties with a construction of s 13 -

What appears to being floated is a possible argument that the Senate cannot re-exercise its power under section 13, having already exercised it once. But if this matter is to go forward to a Full Court, in my submission, the amicus needs to nail their colours to the mast. Are they advancing that submission or are they not? Because if that argument is not actually being put, then the whole exercise will have a somewhat advisory character rather than there being a clear controversy.

The same might be said about section 47. In paragraph 10 of the amicus’s submissions it is said on the fifth line that it is arguable that there is “no further operation” for section 47, the proposition apparently being

that the enactment of section 376 has otherwise provided such as to exclude any residual role for the provision.

Again, if that is being put, it needs to be put squarely. Section 78B notices would need to be issued, specifically identifying those issues. But if those issues are being raised, we would accept that it would be appropriate for them to be addressed by a Full Court, in the event that your Honour is persuaded that they fall within the reference, otherwise of course nothing more would remain to be done.

So, your Honour, that is really all I think that I seek to put in support of the amended summons unless the Court has any questions. If the matter is to go forward, there might be some timetabling issues that need to be addressed.

HIS HONOUR: Well, when you refer to the matter going forward, your primary submission remains that I should make the declaration sought in the amended summons today on the basis of Mr Austin’s affidavit of 22 November, is that so?

MR DONAGHUE: That is correct. That is right.

HIS HONOUR: All right.

MR DONAGHUE: My primary submission is that there is nothing else that your Honour needs to do, so when I say going forward, I mean only if your Honour is persuaded that there is something else that remains and then - that is what I was referring to when I was indicating there would be timetabling issues.

HIS HONOUR: Yes, thank you.

MR DONAGHUE: If the Court pleases.

MR MOSES: Your Honour, could I provide the Court with a copy of draft orders which we have circulated to our friends? Your Honour, there is no real contest amongst the parties and the amicus to the references to whether Mr Molan should be elected as a senator for the State of New South Wales, leaving aside any further question as to the place or class in the Senate he should assume and, absent such a contest, there is no basis for further delaying the making of the declaration in respect of Mr Molan sought by the Attorney-General in the amended summons filed on 19 December. The Court’s power to make the declaration of course, your Honour, is provided in section 360(1)(vi) of the Commonwealth Electoral Act.

Your Honour, in relation to the position, there is no dispute between Mr Molan and Senator Fierravanti-Wells that Mr Molan is entitled to the three-year term and Senator Fierravanti-Wells is entitled to a six-year term on the basis of the special count which this Court ordered in Canavan pursuant to the order made at paragraph 145 of the judgment. There is a dispute between the Attorney-General and the amicus as to whether this Court should make a declaration which gives effect to what place Mr Molan and Senator Fierravanti-Wells will take, or whether there is something that will be dealt with by the Senate pursuant to section 13 of the Constitution.

Either way, Mr Molan does not wish to be caught in the crossfire between the Attorney-General and the amicus which would further delay him taking on his rightful position in the Senate in order to represent the people of New South Wales from 5 February next year, your Honour. So those are our submissions. We are of the view, your Honour, that the position of the amicus is adequately protected by the orders that we proposed because the Court, if it so determines, would be able to deal with the questions which the amicus is raising for consideration. If it please the Court.

HIS HONOUR: Thank you, Mr Moses. Yes, Mr Kennett.

MR KENNETT: Your Honour, the course that is proposed on behalf of Mr Molan has its attractions, certainly procedurally, because it would allow the issues which we have flagged to be – would allow Mr Molan to take his seat and the issues which we have flagged to be disposed of in a more orderly way and with less time pressure.

The problem, or the possible problem, is this. With proposed order 1 having been made, the Attorney’s amended summons would be spent. Now, true it is that there may still be a question as to whether, for the purposes of question (c) in the reference, any further order is made, but the plan really casts me then as the moving party - - -

HIS HONOUR: It does.

MR KENNETT: - - - responsible for raising these matters. Your Honour might take the view that there needs to be a piece of paper.

HIS HONOUR: Yes, I would.

MR KENNETT: A summons raising them. That sits, although this is not irremediable, awkwardly with my current role as a contradictor, and that is really I think the problem from my point of view and it reflects itself in the observations that the Solicitor-General made about the manner in which our submissions had, as he put it, floated possible arguments.

Now, those submissions were put in response to the amended summons which, as we read it, proposed the order as a complete disposal of the reference and we sought to indicate reasons why there would be difficulties in treating it that way and, in so doing, we were responding to the Attorney’s arguments which, with respect, were somewhat unclear as to how it was being put that the Senate could or might deal with remaining issues itself. That is, I suppose, water under the bridge, but there remains a task of clarifying and crystallising the questions that are proposed to be stated. That needs to be done somehow procedurally and I have some reservations about whether I can do it – I can or should do it.

HIS HONOUR: Let us take it in stages. The declaration now sought in the amended summons, as I understand it, is a declaration that you do not oppose?

MR KENNETT: That is so. I think it is fair to say that we accept that at the end of the day the Court would make a declaration in those terms or something very similar and the question that remains is as to whether something further is needed for the purpose of finally dealing with the reference.

HIS HONOUR: And therefore there is no reason that you advance why I should not make that declaration today on the basis of the affidavit of Mr Austin?

MR KENNETT: We would resist it if it were said to be the final word on the reference.

HIS HONOUR: So you are raising as – at the moment I will call it an issue, whether there would remain anything to be determined by this Court sitting as the Court of Disputed Returns to finally dispose of the issues raised by the reference. That further issue of comprehensiveness or finality could be brought before the Court by appropriate process by someone sufficiently interested in the matter. Why should I not leave it to be determined if and when such a process is commenced?

MR KENNETT: The Court has for better or worse appointed me to assist it as contradictor on the law. Our contradiction of the position that has been put by the Attorney has raised a question. It is a matter for the Court ultimately, but there would seem to be merit in that question being resolved rather than disappearing for want of an interested party to raise it.

HIS HONOUR: The ordinary course is for the Court to determine controversies that have practical outcomes.

MR KENNETT: Yes.

HIS HONOUR: We do not deal with abstract questions.

MR KENNETT: Yes.

HIS HONOUR: For the moment, unless there is a party with a sufficient interest who by appropriate process raises the question, it is not a question that I would propose this Court deal with.

MR KENNETT: Your Honour, that orthodox position, if I may say so, forces me into a position of opposition of the order proposed because it makes the opposition, so far as one can see – it makes the order, so far as one can see, into something that finally disposes of the reference, that finally disposes of question (c), and we would say it is an inappropriate final disposition for the reasons that we have indicated in the written submissions.

HIS HONOUR: Inappropriate only because it is insufficiently comprehensive?

MR KENNETT: Yes.

HIS HONOUR: Very well. Is there anything further you wish to say?

MR KENNETT: Not at this stage, your Honour.

MR MOSES: Your Honour, may I seek just a very short adjournment? I just need to seek some instructions in relation to an issue that has arisen during the course of the exchange and it should only be very short, your Honour.

HIS HONOUR: Yes, of course.

MR MOSES: If it please the Court.

HIS HONOUR: The Court will now adjourn.

AT 10.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

MR MOSES: Your Honour, I thank the Court for that short adjournment. There is nothing I wish to raise with the Court at this time. If it please the Court.

HIS HONOUR: Thank you. Mr Solicitor, is there something you wish to add?

MR DONAGHUE: No, your Honour, nothing further.

HIS HONOUR: Very well. I will take a short adjournment and I will make orders and deliver reasons at noon. The Court will now adjourn until noon.

AT 10.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.22 PM:

HIS HONOUR: I will proceed to give reasons and to make orders.

On 27 October 2017, the Full Court of this Court, sitting as the Court of Disputed Returns, answered questions referred to it pursuant to a resolution of the Senate under section 376 of the Commonwealth Electoral Act 1918 (Cth) (“the Act”) concerning the Honourable Ms Fiona Nash who had been returned as a senator for the State of New South Wales following the double dissolution election held on 2 July 2016.

The first of those questions, to which the Court gave an affirmative answer, was whether, by reason of section 44(i) of the Constitution, there is a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned. The second question, which arose for the Court’s determination as a result of that affirmative answer, asked “by what means and in what manner that vacancy should be filled?”

The answer given by the Court was as follows: “The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.” A further question, asking “What directions and other orders, if any, should the Court make in order to hear and finally dispose of the reference?”, was treated by the Full Court as unnecessary to answer.

On 2 November 2017, in conformity with the answer given by the Full Court to the question concerning the means and manner in which the vacancy should be filled, I made directions for the conduct of a special count. A special count was conducted in accordance with those directions on 6 November 2017, following which the Attorney-General of the Commonwealth, by summons dated 7 November 2017, sought from the Court an order that Ms Hollie Hughes be declared elected as a Senator for the State of New South Wales for the place for which Ms Nash was returned.

A question raised on the return of that summons as to whether Ms Hughes was herself disqualified from being elected as a Senator by operation of section 44(iv) of the Constitution was considered by the Full Court on 15 November 2017. The question was answered adversely to Ms Hughes, with the result that the Attorney-General’s summons dated 7 November 2017 was dismissed.

On 20 November 2017, and again in conformity with the answer given by the Full Court as to the manner and means of filling the vacancy that had been determined to exist, I made orders for the conduct of a further special count. That further special count was conducted on 22 November 2017.

The Australian Electoral Officer for the State of New South Wales subsequently reported, by affidavit affirmed on 22 November 2017 and filed on 6 December 2017, on the result of that special count. The Australian Electoral Officer reported the identities of the 12 candidates who would be elected and the order in which they would be elected. The report indicated that Jim Molan, who had not previously been returned as elected, would be elected. The report also indicated that, whereas Ms Nash had been placed fifth in the order of election, Mr Molan would be placed 10th in the order of election. The report also indicated that Senator Concetta Fierravanti-Wells, who had been returned as elected seventh in order, would be the person elected fifth in order.

By summons filed on 6 December 2017 the Attorney-General sought an order, similar in form to the order he had previously sought in relation to Ms Hughes, that Mr Molan be duly elected as a senator for the State of New South Wales for the place for which Ms Nash was returned.

At the return of that summons, on 11 December 2017, Mr Kennett SC, whose appointment as amicus curiae continued, raised issues as to the availability and appropriateness of the declaration sought. His central concern, which did not rise to the level of a contention, was as to whether Mr Molan could be declared to be returned for the place for which Ms Nash was returned. At least - arguably, he suggested, the place ought to be filled by the person fifth placed in the order of election on the special count, namely, Senator Fierravanti-Wells.

On that date I made orders allowing Mr Molan and Senator Fierravanti-Wells to be heard on the issues raised by the summons, as a consequence of which they have each become parties to the reference by operation of section 378 of the Act. I then also made procedural orders to facilitate the return of the summons for directions before me today.

The Attorney-General correctly points out that the form of the order sought by the summons filed on 6 December 2017 was the form of orders that had been sought from and made by the Court in a number of other cases. Those cases commenced, at least, with the case of In Re Wood [1988] HCA 22; (1988) 167 CLR 145 at 176; [1988] HCA 22.

Nevertheless, as I pointed out in discussions with counsel during the directions hearing on 11 December 2017, that form of order is not required by the terms of section 360(1)(vi) of the Act, which is expressed to confer power on the Court of Disputed Returns simply:

“To declare any candidate duly elected who was not returned as elected”.

On 19 December 2017, the Attorney-General filed an amended summons seeking a declaration in terms that reflect that statutory language. The declaration sought by the amended summons is simply that Jim Molan is duly elected as a senator for the State of New South Wales.

Despite the matter having been listed before me this morning for directions in relation to the summons dated 6 December 2017, the Attorney-General with the support of Mr Molan and Senator Fierravanti-Wells presses for a declaration to be made today in the terms sought in the amended summons dated 19 December 2017. The Solicitor-General, who appears on behalf of the Attorney-General, points out that the Senate is due to sit on 5 February 2018 and that the order sought in the amended summons will have the limited statutory effect set out in section 374(ii) of the Act, namely, of allowing Mr Molan to “take his seat accordingly”. The order in terms, he points out, would say nothing about who is to occupy the place for which Ms Nash was returned as elected.

Mr Kennett opposes the making of that declaration today. He does so not because he submits that the declaration is inappropriate insofar as it goes, but rather because, as he puts it, the making of an order in those terms may not – he does not go so far as to say would not – have the effect of finally disposing of all of the issues potentially raised by the reference.

Given that the appropriateness of the order sought is not in dispute, I see no reason to delay its making. I do not consider it to be in the public interest that the proceeding on the reference, already protracted enough, should not be brought to at least an interim conclusion by a declaration being made identifying the person who is now to take a seat as one of 12 senators elected for the State of New South Wales. There should be no lingering uncertainty as to the representation of that State in the Senate and it is in the public interest that the status of Mr Molan be resolved as soon as possible.

I do not think it necessary for me to form any view on the question of whether there is any aspect of the matter referred by the Senate that requires further resolution of the Court. If a person with a sufficient interest to raise such an issue does so by formal process, then that is something that can be addressed, if necessary, in response to that process.

In the circumstances, I propose to make the declaration sought by the Attorney-General in the amended summons. The declaration I accordingly make is that Jim Molan is elected as a senator for the State of New South Wales.

Is there anything further, gentlemen?

MR MOSES: Your Honour, I would seek costs of Mr Molan and Senator Fierravanti-Wells. I understand the position of the Attorney-General is there is neither consent nor opposition to that course.

MR DONAGHUE: Your Honour, I now have instructions to consent to an order in those terms. If it please the Court.

HIS HONOUR: Well, you had better tell me the precise terms. Is it that the costs be paid by the Commonwealth or what is the source? It would be that the Commonwealth is to pay the costs of the Mr Molan and Senator Fierravanti-Wells? Is that correct?

MR MOSES: Yes, your Honour.

MR DONAGHUE: Yes, your Honour.

HIS HONOUR: Yes. Well, I make that further order. Nothing else?

MR MOSES: No, your Honour. If it please the Court.

MR DONAGHUE: No, your Honour.

HIS HONOUR: The Court will now adjourn.

AT 12.36 PM THE MATTER WAS CONCLUDED