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Last Updated: 22 January 2018
IN THE HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF
DISPUTED RETURNS
Office of the Registry
Canberra No C31 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 MEMBER FOR BATMAN, MR DAVID FEENEY
Office of the Registry
Canberra No C32 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 SENATOR KATY GALLAGHER
KIEFEL CJ
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO SYDNEY AND MELBOURNE
ON FRIDAY, 19 JANUARY 2018, AT 10.15 AM
Copyright in the High Court of Australia
____________________
HER HONOUR: Before taking appearances and proceeding to make directions to progress these matters it is necessary to deal with determinations that I have made.
The Court received references in these matters from the House of Representatives and the Senate on 7 December 2017. The Court published notices on 8 December 2017 inviting persons to apply to the Court to be heard or to make submissions on the references, as it is required to do. The closing date of applications in each of the references was 21 December 2017. I have now made determinations with respect to each application.
In the matter of the reference concerning Mr David Feeney, I order as follows:
(i) Mr David Feeney, and
(ii) the Attorney-General of the Commonwealth.
I publish that determination and the reasons for it.
In relation to the reference concerning Senator Katy Gallagher the orders of the Court are:
(i) Senator Katy Gallagher, and
(ii) the Attorney-General of the Commonwealth.
I publish that determination and the reasons for it.
I will now take appearances, first in the Feeney matter.
MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: May it please your Honour, I appear with MS J.D. WATSON, for the Commonwealth Attorney-General. (instructed by Australian Government Solicitor)
MR T.E. O’BRIEN: May it please the Court, I appear for Mr Feeney. (instructed by Arnold Bloch Leibler Lawyers)
MR B.E. WALTERS, QC: May it please the Court, I appear with my learned friends, MR A.N.P. McBETH and MS E.A. BENNETT, on behalf of Ms Bhathal. (instructed by FitzGerald and Browne)
MR N.J. OWENS, SC: May it please the Court, I appear for Senator Gallagher. (instructed by Maurice Blackburn Lawyers)
HER HONOUR: Shall we deal with the Feeney matter first. I see that the Attorney’s suggestion in the written submissions for the directions hearing is that nothing – someone is turning pages, papers very close to the microphone, could you just check who is doing that because it is making it difficult for everyone else to hear. Thank you.
Mr Solicitor, I see that it is suggested that the matter cannot really be progressed until the evidence of Mr Feeney is seen and the scope of the controversy can be determined.
MR DONAGHUE: That is right, your Honour. At present we think it is difficult to make any sensible assessment either as to the ambit of any factual dispute or as to the ambit of any legal dispute until it is clearer exactly what Mr Feeney’s position is both in relation to his possession of British and perhaps also Irish citizenship, what he says about the steps that he took to renounce those citizenships and what evidence there is of it and what any experts he may choose to retain say about those questions. For that reason we thought it sensible to make orders to the effect that Mr Feeney filed such material as he saw fit to file both of a lay and expert kind and that once that material is assessed we come back with a more concrete proposal to the Court as to how the matter should progress.
I should say, your Honour, that it does appear to us that it is quite possible that there will be a need for a factual contradictor to explore some aspects of Mr Feeney’s evidence or to test that evidence. Your Honour will recall that in the Day reference early last year that role was performed by Ms McEwen who was a rival candidate to Mr Day. It is possible that that role might be appropriately performed by counsel for Ms Bhathal but the Attorney-General takes no position one way or the other in respect of that application.
If Ms Bhathal is not made a party to the reference then we foreshadow that it might be necessary, as in the Roberts reference, to appoint an amicus to perform that task.
HER HONOUR: In the reasons for the determinations I have just published I have said that I would hear today further from Ms Bhathal and the parties in relation to her being made an amicus to assume the position of contradictor of both fact and law, but from your point of view there would be no difficulty, there is no opposition to her being made a party now so that that role can be assumed?
MR DONAGHUE: That is correct, your Honour. It is difficult, obviously, to make any final decision as to the extent to which there is a need for a factual contradiction until we see Mr Feeney’s evidence, but it seems to me at present quite possible that there will be a need for at least some aspects of his evidence to be explored and we certainly have no objection if the Court is minded to grant Ms Bhathal’s application to that occurring today.
HER HONOUR: Yes, thank you.
MR DONAGHUE: Your Honour, I understand from exchanges between the parties that Mr Feeney has some difficulty with the timetable that we had proposed in our orders and would seek some extension of the timetable
suggested. If your Honour has the orders that we attached to our submissions - - -
HER HONOUR: Yes, I do.
MR DONAGHUE: I understand that it is sought that order 3 – the date be amended from 24 January to 1 February and we have no objection to that. If that change is made there would need also to be a change to order 5 as to when the matter comes back and my submission is that it would be appropriate to list the matter for further directions at some point around about 7 through to 9 February in order to allow the parties to consider and formulate a proposed pathway forward, having considered Mr Feeney’s evidence. Subject to that, your Honour, in our submission, the orders that we proposed in our written submissions should be made.
HER HONOUR: Yes. Thank you, Mr Solicitor. Mr O’Brien.
MR O’BRIEN: Yes, your Honour. We agree with the approach suggested by the Solicitor-General in his submissions that the most sensible way forward is for evidence to be put on and this matter brought back so that appropriate timetabling orders can be made at that point in time. It might be convenient for this matter to be heard along with the Senator Gallagher reference, though looking at the timetable that is proposed in that matter that may not be possible, but if that is possible that should be determined at the next return. If it would be of some assistance I can give a brief overview of what the factual matrix is likely to be - - -
HER HONOUR: I would be much assisted by that, thank you, Mr O’Brien.
MR O’BRIEN: In essence, Mr Feeney’s father was born in Northern Ireland. It is expected to be uncontroversial that as a consequence of this Mr Feeney was not an Irish citizen but he was a citizen of the UK. In my submission, there will be two real issues that arise in the reference. The first will be a factual matter, which is what steps did Mr Feeney take to renounce his UK citizenship. And the second issue will be whether those steps constituted all reasonable steps that were required of him in accordance with Re Canavan.
In essence, Mr Feeney’s evidence, which is still being finalised, will be that in 2007 before he was nominated he received advice from the ALP Legal Unit as to the steps he should take to renounce his UK citizenship and his potential entitlement to take up Irish citizenship. That advice correctly identified the steps that Mr Feeney had to take to renounce his UK citizenship. For some reason Mr Feeney’s renunciation was not registered as required by the relevant UK Act by the relevant authorities and the
relevant UK authorities do not have any record of receiving Mr Feeney’s renunciation, however they have not retained records back to 2007.
Inquiries are still being made as to further objective evidence that the application for renunciation was made in accordance with Mr Feeney’s recollection but that will be the factual matrix and those will be the two issues, in my submission.
HER HONOUR: Yes, thank you for that.
MR O’BRIEN: Now, as to Ms Bhathal’s application, in my submission, it seems sensible that the determination of that should also await until the evidence is on because at that point in time the Court will be in a position to determine whether a contradictor is in fact required and, for example, be able to entertain Ms Bhathal’s application to cross-examine witnesses that are put on by Mr Feeney.
HER HONOUR: Yes, thank you.
MR O’BRIEN: May it please the Court.
HER HONOUR: Yes, Mr Walters.
MR WALTERS: If your Honour pleases. In our submission, for the reasons set out in our written submission, Ms Bhathal has an interest in the matter, both by virtue of being an elector in the seat of Batman and also as a past candidate and a prospective candidate. It is too soon to say what the scope of her involvement would be because we have not seen the material to be filed and any application, for example, to test that evidence would depend upon first seeing that evidence. But, in our submission, it is likely that there would be the need to have a contradictor and she would be an appropriate person to fulfil that role.
Of course, similarly, in relation to the law until such time as the submissions are formulated, we cannot at this stage say what we would have to say but again it is likely that the Court would be assisted by having a contradictor in relation to legal submissions. For those reasons, in our submission, it would be appropriate for Ms Bhathal to be joined as a party at this stage or if not at this stage then upon receipt of the material filed by Mr Feeney. Those are our submissions, if your Honour pleases.
HER HONOUR: Well, I suppose the only question raised by Mr O’Brien is whether even though it is most likely that a contradictor will be necessary whether or not we postpone the making of any order as to whether that is contradictor of fact and law until we see the scope of the issues.
MR WALTERS: Yes. In our submission, it would be convenient at least for the situation to be that any material filed on behalf of Mr Feeney be provided to Ms Bhathal’s advisers and the simple way to do that is to make her a party at this stage. Other than that, your Honour, as we say, the scope cannot now be identified in the absence of the actual material.
HER HONOUR: You are suggesting that I order that she be made a party today and then leave the question of her role, her extra role as an amicus and contradictor, until the next directions hearing?
MR WALTERS: Or, for example, your Honour, we could not apply as it were in the air to cross-examine when we have not seen the material. We would need to make that application only when that is to hand.
HER HONOUR: Yes, all right. There will be orders in terms of the Attorney’s draft orders save that the date in order number 3 is changed until 1 February. As to the date for the next directions hearing I will come back to that after I have dealt with the timetable in the Gallagher matter because it would seem to be convenient, if possible, to match those dates. I will make a further order that Ms Bhathal be made a party to the reference if there is a need to expand upon that order to further define her role and that can be undertaken at the next directions hearing. Mr Solicitor, then there is the question of the reference with respect to Senator Gallagher.
MR DONAGHUE: Yes, your Honour.
HER HONOUR: I have seen the affidavit evidence and the proposed expert evidence. I note that the parties may need – in fact, those appearing for Ms Gallagher may need an order for redaction of the personal information from the material at the time it is filed.
MR DONAGHUE: I had that issue raised with me briefly this morning by my instructors and there is no difficulty from our point of view with that occurring.
HER HONOUR: All right. I will take that up with Mr Owens subsequently. The material now discloses that the dates – as I understand the sequence of events, Senator Gallagher took steps to lodge a renunciation on 20 April in the year of the election, 2016. Nominations opened on 19 May. She nominated on 31 May and nominations closed on 6 June. On 1 July the Home Office requested original documentation and it was not until 16 August that she was advised that she was registered, by which time she had been duly elected. I think that is it in a nutshell, Mr Solicitor.
MR DONAGHUE: I believe that is right, your Honour, yes.
HER HONOUR: So that might throw up the question of what date becomes relevant in relation to the taking of her steps.
MR DONAGHUE: Amongst other questions, yes, your Honour. As that brief chronology shows she took steps on 20 April – that is a little less than two months before the close of nominations – so on one possible view there would be a question as to the reasonableness of the time at which she commenced her renunciation process having regard to the date at which nominations closed. However, on the Attorney’s primary submission that will not end up being decisive for the reasons that we have endeavoured to very briefly summarise in paragraphs 3 through to 6 of the written outline, but obviously that will be a matter of debate between the parties ultimately on the hearing of the reference.
In our submission, your Honour, we had understood from communications from Senator Gallagher’s representatives that the Senator is keen for the matter to be heard as soon as possible and we were happy to accommodate that if the Court was able to do so and that is the reason that underlies the quite tight timetable that your Honour will have seen proposed, attached to the submissions that we filed.
HER HONOUR: Yes.
MR DONAGHUE: We apprehend that at the level of the facts that are necessary to enable the Court to resolve the legal questions there are very few issues and that the parties should be able to accommodate the finding of factual material in the timeframe that we have set out in those orders. The only complication, as we apprehend it, relates to a fairly narrow area of disagreement – narrow, but potentially important area of disagreement between the expert that has been retained by the Attorney-General, who is Mr Fransman QC, and the expert retained by Senator Gallagher, who is Mr Berry. Your Honour may recall they are the same two experts who gave evidence and were cross-examined before his Honour Justice Keane in the Roberts matter.
HER HONOUR: Yes. From recollection they are from the same chambers, are they not?
MR DONAGHUE: They are from the same chambers and they – that turned out to be useful for a moment – I will come to in a moment, but to give your Honour an understanding of the area of disagreement, the issue is this. Mr Berry has expressed the opinion that on the information that Senator Gallagher submitted to the Home Office on 20 April, the Secretary of State was under a duty to cause her renunciation to be registered. Mr Fransman has expressed the opinion that on that same material the Secretary of State was not required to accept the application and was entitled, as he in fact did, to seek further evidence from the Senator.
So there is that area of disagreement between them and in our submission it would be appropriate for the experts to attempt, if possible, to narrow the area of disagreement consistently with the orders that your Honour made to the same effect in the Roberts matter. But, on the assumption that there remains an area of disagreement, we submit it would be appropriate for the Attorney-General and Senator Gallagher’s counsel to have an opportunity to test the evidence of the respective experts.
We do not think that that would be a very lengthy exercise and our submission is that in the event that such cross-examination is needed it would then be a matter for submissions before the single Judge at that time as to whether it is necessary for findings to be made following the cross-examination or whether it would be sufficient simply for the transcript of the cross-examination to be placed before the Full Court.
HER HONOUR: I would think it would be almost certainly necessary to have findings made.
MR DONAGHUE: That may well be so, your Honour.
HER HONOUR: Is it proposed that the expert witnesses be cross-examined physically present in Australia or by video link?
MR DONAGHUE: The latter, your Honour.
HER HONOUR: Yes.
MR DONAGHUE: Now, at the time that we filed our written submissions it had not been possible to confirm the availability of the experts, which is why we caveated paragraph 13 of our submissions as we did, but overnight my instructors have been in contact with Mr Fransman who advised that he has extremely limited availability over the next few weeks in light of commitments to existing long-term cases.
Unfortunately the position is, as reported to us by Mr Fransman, that the only time he can commit to being available is on Monday, 29 January, Australian time. Helpfully, although informally, Mr Fransman says that he has spoken to Mr Berry and he understands that Mr Berry is also available on that date. So in the event that the Court were prepared to accommodate the kind of approach that we have proposed, our submission is that it would be necessary to amend the dates in orders 6 and 7 of our draft order so that order 6 referred to a document reporting the area of disagreement being provided to the Court on Thursday, 25 January - - -
HER HONOUR: Mr Solicitor, I do not suppose the experts have been asked to consider the availability of dates further down the track, so to speak, in advance? I say that for this reason. The Court is of course aware of the need to determine these matters as soon as possible but there is a limit to its ability and its preparedness to do so in relation to these references when they keep coming in and to treat every matter, every reference, as one of extreme urgency.
Now, these matters have been fast tracked by the Court immediately they were received but at the time you are asking me to set a matter down for hearing before a single Justice each of the Justices of this Court will be undertaking the not inconsiderable process of preparation for the February sittings which includes at least one reference and probably two to be heard in that period. I do not propose to set the matter down before a single Justice on either the 29 January or the 31st.
What I do propose is that the matter be heard before a single Justice on either 7 or 8 February in Canberra when the Court is sitting and when I know that there will be Justices available who are not participating in a hearing on those days when only a small number of Justices are taken up in hearings.
So that for the moment there could be – there is the possibility of the matter being heard on some other day in the sittings when the Court is constituted by five Justices and there are two available, but those dates would be the most convenient for the Court but we will attempt to accommodate the parties and the expert witnesses but, as I foresee it, it would be in the February sittings that we have this matter determined by a single Justice.
MR DONAGHUE: Then, your Honour, that the matter comes before a Full Court in the March sittings or at some later time - is that - - -
HER HONOUR: We would certainly hope to be able to set it down in the March sittings in the first week.
MR DONAGHUE: Yes. Your Honour, I obviously do not seek to be heard against that and our proposal was always of course subject to the Court’s availability and capacity to - - -
HER HONOUR: I appreciate that, Mr Solicitor.
MR DONAGHUE: Your Honour, our inquiries as to Mr Fransman’s availability did go wider than just the next few days and the answer that we got was that the only time that Mr Fransman was prepared to commit to
being available was 29 January. He, as I understand it, has some movement in other cases that he is in but in light of what your Honour has just said we will have to go back to him to try to see whether it is possible to firm up any commitments around those dates. There are very major constraints, as I understand it, on his availability but if we can – so, it may be, your Honour, that we really need to revert to the Court once the parties have had an opportunity to ascertain both Mr Fransman and Mr Berry’s availability on those two dates, if that would be suitable to the Court.
HER HONOUR: Could I suggest then that the parties speak to the Senior Registrar and ascertain the other dates during the sittings when the Court is only constituted of five Justices and there may be availability in those dates as well. Alternatively, if Mr Fransman is not available - either expert is not available during the sittings then we are looking at the period in between the two sittings but we are getting then probably uncomfortably close to the March sittings.
MR DONAGHUE: Yes, your Honour.
HER HONOUR: Shall we leave the matter then on the basis that orders otherwise in terms of the draft order that you have proposed, except for the orders which follow from order 7 with the new hearing date, be provided by the parties by agreement once the position of the experts is known?
MR DONAGHUE: Yes, your Honour. So leaving orders 1 to 6 the same and then adjusting all of the dates once we know the cross-examination dates and working out a timetable towards an exchange of submissions for a March hearing, is that what your Honour is proposing?
HER HONOUR: Yes, that is right, and the order in the Feeney reference, order number 5, would simply be listed for further directions on the same day that a single Justice hears the matter in Canberra – if it is heard in Canberra, but it will be heard at 9.30 by me and then a single Justice hearing would take place at 10.15.
MR DONAGHUE: If the Court pleases. We will certainly amend the orders in that way and then submit them to the Court.
HER HONOUR: Yes, thank you. Mr Owens.
MR OWENS: Yes, I think your Honours deduced this, but I appear for Senator Gallagher. I do not wish to say anything against any of what has just fallen between your Honour and the Solicitor. Could I just raise the matter in relation to order 2, namely, the order about affidavits? Your Honour has already raised one issue. Your Honour will be aware that a copy of Mr Berry’s affidavit was provided pursuant to a request from
the Registry last night and your Honour, I think, has seen that there is some personal information, bank details and so on. When we file – formally file the evidence, we would propose to redact that personal information if that was acceptable to the Court. Otherwise, I would need to seek an order for confidentiality over the relevant parts of the affidavit.
HER HONOUR: No, it will be in order for you to have that material redacted as you file it.
MR OWENS: Thank you, your Honour, and then flowing from the fact that Mr Berry is in London we do not expect to have the original of that affidavit by Monday and, again, so long as it is acceptable to the Court, we would propose to file a copy of that affidavit and then the original subsequently.
HER HONOUR: That will be in order, Mr Owens.
MR OWENS: Thank you, your Honour. I do not think I have anything else, your Honour.
HER HONOUR: All right then. There will be orders in this matter to the extent discussed with the Solicitor-General - orders number 1 to 6 as proposed and the balance of the orders in substance will be made with the dates to be supplied by the parties as soon as they are able. I do not think there are any further matters.
The Court will adjourn.
AT 10.45 AM THE MATTER WAS ADJOURNED
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