Re Gallagher [2018] HCATrans 14 (12 February 2018)

Last Updated: 13 February 2018

[2018] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

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 CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 12 FEBRUARY 2018, AT 2.15 PM

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 MS J.D. WATSON for the Commonwealth Attorney-General. (instructed by the Australian Government Solicitor)

MR J.E. MACK: May it please, Mr Mack, via video link from Sydney, for Senator Gallagher. (instructed by Maurice Blackburn Lawyers)

HER HONOUR: Mr Solicitor, I have read the submissions. The issue seems to come down to whether or not we have a hearing on the issue as between the experts before or following the hearing by the Full Court.

MR DONAGHUE: Yes. Your Honour, I think the position is that the Attorney submits that there does not need to be such a hearing at all - - -

HER HONOUR: I understand that to be your position.

MR DONAGHUE: - - - and that Senator Gallagher submits that, out of many possible permutations and combinations that might arise in the reasoning process, one of them would require a hearing of that kind. We accept that the Court might not find that a very attractive proposition that it might be necessary to send the matter off to a senior judge, but, in our submission, there is not any reason to be concerned that that will need to happen.

HER HONOUR: I have not heard further from Mr Mack. It is not entirely clear to me what his position is with respect to why the evidence would be admissible. I do not know whether it is local practice. I was going to ask him to extrapolate a little upon the submission. I understand your position to be that it is simply a question of the application of foreign law to the facts of the case.

MR DONAGHUE: Absolutely. When one looks at the sections we have extracted, which are the sections that the experts have identified as the areas where they disagree, they are expressly talking about, on the basis of the material Senator Gallagher provided on 20 April 2016 with her application, what is the consequence under the British laws. That seems to us to be a core example of evidence that is in the application category.

HER HONOUR: Can the question be - I have not asked Mr Mack, obviously, yet - the issue really is whether or not a court would order mandamus of the administrative decision-maker.

MR DONAGHUE: The experts identify the issue in three different ways but, in our submission, they all boil down to the same thing. It may be, as your Honour the Chief Justice puts to me, that it is about whether you would order mandamus. It is possible that it might be said that that is a slightly different question because of the discretionary component for a grant of mandamus.

HER HONOUR: That is what I am wondering. If there are nuances and different approaches, it may well be that the Full Court would really need to determine that question before any hearing could take place. If there is any question of admissibility, it would need to identify on what basis and for what purpose.

MR DONAGHUE: That may well be so, your Honour. I appreciate that there is a joinder issue on this but, in our submission, it is most unlikely that the Full Court would get to that outcome because, whether one puts it as a mandamus issue as to whether there was a duty under section 12 to register, as to whether there was an entitlement to seek more information, which necessarily seems to follow if there was not a duty. It all comes down to the question of the sufficiency of the material advanced by the senator on the initial application or not. We submit that there is a good body of authority that suggests that the application of the foreign law in that way is an essentially judicial task upon which it is no function of an expert to express and opinion.

If that be right, we submit it would be odd to delay the hearing of the matter to allow the experts to have a debate about the topic which, at the end of the day, is for the Court to assess for itself on the basis of what it has been told about the foreign law, which here is quite straightforward. Everybody agrees the foreign law is section 12.

HER HONOUR: Yes, the contents – not a difficulty.

MR DONAGHUE: Exactly.

HER HONOUR: This Court has not actually determined this question. It has been touched upon by Justices Gummow and Hayne.

MR DONAGHUE: Yes.

HER HONOUR: But I do not think the question more widely has been determined.

MR DONAGHUE: I think that that is so. Certainly the Neilsen passage that your Honour is referring to is the most authoritative statement we found in this Court. That passage – I can give a copy of it if that would assist.

HER HONOUR: I have it with me, thank you.

MR DONAGHUE: That passage picks up some lower court authority, including some decisions of Justice Gummow as a Federal Court judge.

HER HONOUR: I think Justice Lindgren in the Federal Court as well.

MR DONAGHUE: Indeed.

HER HONOUR: There is some New South Wales authority to similar effect.

MR DONAGHUE: There are a number of cases, mainly of a single-judge level, although interestingly the Justice Lindgren’s judgment, which is the all-State judgment, was a matter argued on one side by his Honour Justice Emmett before he joined the Bench and, on the other side, by his Honour Justice Gageler before he joined the Bench. The two of them were agreed as to the principle that this divide exists. The authorities go back 50 years to a House of Lords case.

While it is true that this Court has not ruled on the point - perhaps it might turn out that this case is an opportunity, when the Court does meet, to look at it – if the distinction is maintained then, in our submission, it is fairly clear which side of the line this evidence falls upon. The Court will be well placed, having regard to the fairly straightforward terms of the English law, to determine whether or not it thinks, as a matter of application, the documents provided by the senator in her initial application enlivened the duty or whether they did not.

HER HONOUR: Either way, there does not seem to be much in favour of having a hearing of this issue before the Full Court deals with the matter. I cannot think of any strong reasons why that path would be a particularly efficient use of resources.

MR DONAGHUE: We could not agree more.

HER HONOUR: As I have said, the difficulty I have is that, depending upon where Mr Mack’s argument is going, the Full Court might need to identify it for a single judge if that point is reached.

MR DONAGHUE: If that point is reached and if the argument goes in the direction then the Full Court, rather than answer the question, would say that this is the issue and give that assistance to the single judge, so we would certainly support that course. If that is the approach that your Honour were minded to take, then I do not understand there to be any disagreement between the parties that the orders that we have attached to our submission would be appropriate, of course subject to anything the Court - - -

HER HONOUR: There is only one matter - in order no. 6, the Senior Registrar reminds me that it is a public holiday on Monday 12 March. Could we bring the joint book of authorities forward to Friday, 9 March?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: That should not be a problem.

MR DONAGHUE: No. Thank you, your Honour. If the Court pleases.

HER HONOUR: Yes, thank you. Mr Mack, can you expand a little on the basis that you would contend that the evidence of the experts is admissible on this point?

MR MACK: Yes, your Honour. The first point is that we understand the position of the Attorney-General to be that the evidence, the expert evidence, just – well, the way we understand it is that it should now go in and people can submit on it. The difficulty we have is that where the experts differ and where it all boils down to is this issue of mandamus, which is a discretionary remedy. If one has regard to paragraph 120 of Neilsen, which I understand is before your Honour, the final paragraph reveals:

a distinction between content and application evidence is not to be understood as precluding an expert from examining in evidence how a power or discretion would be exercised by a foreign court.

HER HONOUR: Are you suggesting that there is some local practice of the courts in England, though? Are you saying it is sufficient that it is a question of power or discretion without more?

MR MACK: The difficulty we have is that on the opinion of Mr Fransman he does not admit that mandamus is a possibility at all so the discretion does not exist in that sense, whereas Mr Berry, on the other hand, says that the discretion does exist. It is at that anterior stage where - - -

HER HONOUR: But is he just referring to mandamus as a touchstone for whether or not there is a duty?

MR MACK: I am sorry, your Honour, “he” being?

HER HONOUR: Mr Berry.

MR MACK: As I understand Mr Berry’s evidence, he is saying that in this case mandamus is available but it will be at the discretion of the Court. That may not be successful, but Mr Fransman does not even admit the possibility of getting into a court. We do not know what his evidence would be in relation to what would happen if a court in the UK were presented with facts like Senator Gallagher’s.

HER HONOUR: In any event, as you have heard me say to the Solicitor-General, there does not seem to be any good reason and there does seem to be every reason to defer any hearing on the question of the sufficiency of the evidence or how a Court would determine this question until after the Full Court decides the question of admissibility for itself.

MR MACK: Yes, they have said that.

HER HONOUR: On that basis I will make the orders which allow the matter to proceed to hearing on 14 March. Whether there is any residual question for which you submit, Mr Mack, will abide the decision of the Court. There will be orders in terms of the short minutes of orders with the alterations spoken of before in Order 6.

MR DONAGHUE: My learned friend just reminded me that there is a volume of material filed in the proceeding. The orders that we have proposed that your Honour has just indicated that you are minded to make include orders regularising the filing of an agreed statement of facts that the parties had filed - - -

HER HONOUR: Yes, I was aware of that.

MR DONAGHUE: - - - which is quite a comprehensive document with factual attachments.

HER HONOUR: Yes.

MR DONAGHUE: The understanding of – and Mr Mack will correct me if my understanding is wrong, but as I understand it, the joint intention of the parties was that that agreed statement of facts, together with the expert reports of Mr Berry and Mr Fransman, would – and I think our friend is proposing this – that three point document that indicates the areas of disagreement and the material referred by the Senate would be the totality of the material upon which the Full Court would need to rely in order to determine the reference. So the statement of facts would overtake various affidavits that have been filed.

HER HONOUR: Yes, I understand that. Thank you, Mr Solicitor. Yes, Mr Mack.

MR MACK: I can indicate that that is the position, your Honour. The documents that we say should be before the Full Court are at paragraph 9 of my written submissions.

HER HONOUR: Yes, thank you. There will be orders in those terms. The Court will adjourn.

AT 2.28 PM THE MATTER WAS ADJOURNED