Palmer & Ors v Australian Electoral Commission & Ors [2019] HCATrans 64 (5 April 2019)

Last Updated: 5 April 2019

[2019] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2019

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

JAMES WILLIAM McDONALD

Second Plaintiff

ROBERT JAMES FORSTER

Third Plaintiff

DANIEL ISAAC HODGSON

Fourth Plaintiff

and

AUSTRALIAN ELECTORAL COMMISSION

First Defendant

ELECTORAL COMMISSIONER

Second Defendant

AUSTRALIAN ELECTORAL OFFICER FOR QUEENSLAND

Third Defendant

AUSTRALIAN ELECTORAL OFFICER FOR NEW SOUTH WALES

Fourth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR VICTORIA

Fifth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR TASMANIA

Sixth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Seventh Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE NORTHERN TERRITORY

Eighth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR SOUTH AUSTRALIA

Ninth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR WESTERN AUSTRALIA

Tenth Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY AND CANBERRA

ON FRIDAY, 5 APRIL 2019, AT 9.47 AM

Copyright in the High Court of Australia

____________________

MR L.T. LIVINGSTON: May it please the Court, I appear with my learned friend, MS S.J. CHORDIA, for the plaintiffs. (instructed by Alexander Law)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MS S. ZELEZNIKOW, for the defendants. (instructed by Australian Government Solicitor)

HER HONOUR: I have seen, Mr Livingston, the proposal put forward by the Solicitor. Have you looked at that proposal?

MR LIVINGSTON: Yes, we are content with that proposal, your Honour.

HER HONOUR: All right. Can I ask this question because it affects the way in which we look at it? You will have seen in their submissions that they raise, in general terms, a number of concerns about the statement of agreed facts. Are they likely to be resolved?

MR LIVINGSTON: Yes, we think they will be resolved. Since those submissions were filed we have had the benefit of receiving, late last night, a markedup version from the defendants’ solicitors of proposed amendments to the agreed statement of facts.

HER HONOUR: Yes.

MR LIVINGSTON: We remain confident that agreement can be reached within the timeframe contemplated by the proposed directions.

HER HONOUR: I see. Is that also your view, Mr Solicitor?

MR DONAGHUE: Your Honour, I am not yet confident because I do not know what the plaintiff is going to say in response to the suggestions we made last night.

HER HONOUR: I see.

MR DONAGHUE: As I understand it there is a response foreshadowed by the end of today so the position will be clearer then. There is not a lot of difference between us but the difference that there is relates to a key matter in terms of the argument going forward. So whether or not we can resolve that issue is, in our submission, really likely to be determinative of whether the matter can appropriately be considered by the Full Court.

HER HONOUR: Can I be let in on the secret as to what the key matter is?

MR DONAGHUE: Of course. Your Honour will have seen in the application that at the heart of the plaintiffs’ proposed argument is the proposition that the two party indicative count, or the publication of the candidates identified by the Electoral Commission for the purpose of the calculation of the two party candidate indicative count places what they describe as a burden on the constitutional mandate on direct or popular choice.

HER HONOUR: Yes.

MR DONAGHUE: A fact that goes to that issue, the proposed fact that goes to that issue is a fact about what is described in the facts as the capacity of the publication of that information to influence electoral choice and the debate is about how that fact should be framed and, in particular, whether it should be narrowed to refer to Mr Palmer himself because there are in the application some facts that refer to the fact that there has been a nationwide advertising campaign over a number of months, prominently featuring Mr Palmer.

We can see how it might be said that information relating to Mr Palmer in those circumstances has capacity in some difficult, quantified way to affect electoral choice, but Mr Palmer in his affidavit says he is still thinking about whether he wants to run for the Senate in Queensland instead of for the House of Representatives and if he does not run for the House of Representatives, then the two party indicative count ceases to be relevant to him and the whole nature of the suggested burden might shift because it is harder to see how publication of this information about other people who do not have that national profile through the national advertising campaign is relevant to electoral choices elsewhere.

So we are exploring with our friends whether that fact can be narrowed and focused a little more for the purpose of intersecting then with the argument that they are making about the

HER HONOUR: Just so I am clear, in the letter that they sent to the Australian Electoral Commission at paragraph 33 – I do not know whether you have it in front of you.

MR DONAGHUE: I can get it in a moment, your Honour. This is the letter of 22 March.

HER HONOUR: It is.

MR DONAGHUE: I have it, your Honour.

HER HONOUR: You will see in the seventh line it talks about the practical effect of favouring major party candidates over other candidates. Are they also factual matters that are to be addressed in this statement of agreed facts?

MR DONAGHUE: As I read the statement of agreed facts, other than the fact about the capacity of the publication to affect electoral choice there are no facts going to that issue.

HER HONOUR: I see. I am concerned that this statement of agreed facts, on the current timetable, would be filed by next Thursday if it is to be agreed. I wonder whether or not it is worthwhile at least me being told early next week whether we are on track.

MR DONAGHUE: Your Honour, I have no difficulty with that suggestion. We proposed Thursday yesterday around lunchtime. Since then we have moved a little faster than I think I had apprehended that we would in terms of my clients being able to give instructions that allowed us to go back to the plaintiffs and if the plaintiffs do come back to us, as they foreshadowed today, we will know more Monday, Tuesday next week if it would assist your Honour to be updated then.

HER HONOUR: I suppose what I am asking is this. I am concerned about two things: one, that the parties get agreement; but, secondly, that having looked at it there is a sufficient factual basis for the arguments that are proposed to be put. That is just one other matter that worries me in the sense of what is in it. I have not yet seen it, of course.

MR DONAGHUE: No. It is, in our submission, a not straightforward proposition to evidence the factual proposition that underpins the plaintiffs’ claim. But that, in our submission, is ultimately an issue for the plaintiffs as to what fact they think they need in order to establish the constitutional argument that they want to make. The fact that they have advanced at present, subject to the negotiations that we are having, is one that we may be able to agree. If they tried to go further and to have us agree facts about discrimination against minor parties then there will be a big potential for disagreement and it will become much less likely that there would be agreement within that timeframe.

We have, I should say, your Honour, proposed facts about how it is – some quite detailed facts about how the Electoral Commission goes about the task of identifying the people who will be selected for this purpose so the Court will not be in a vacuum in that respect. There will be a factual foundation for how this selection is made and that, of course, could inform a judgment about whether it has the discriminatory effect alleged.

HER HONOUR: In relation to the constitutional argument am I correct to assume that as, in a sense, the plaintiffs appear to accept in their letter to you, that there is no statutory foundation for the publication of identity and results. It is a matter of practice.

MR DONAGHUE: For the publication of this – there is a statutory foundation for the indicative count itself.

HER HONOUR: No, I understand that. I understand that under other provisions the count has to start it straight away and I understand that first preference votes are disclosed and there is no challenge to that aspect of the system.

MR DONAGHUE: Yes.

HER HONOUR: In relation to the publication of the identity there is publication as soon as the polls close to those undertaking the scrutiny.

MR DONAGHUE: That is correct.

HER HONOUR: Is the position about the balance of the process a matter of practice?

MR DONAGHUE: I believe the answer to that, your Honour, is yes, a matter of practice that we would submit is underpinned by the general power of the Commission to do what is necessary to discharge its functions.

HER HONOUR: Section 7(3).

MR DONAGHUE: That is right, your Honour, yes.

HER HONOUR: I see.

MR DONAGHUE: But there is no specific prescriptive provision about the timing of publication.

HER HONOUR: Of either identity or results?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: I see, all right. Subject to what either of you might say – and I will ask Mr Livingston – Mr Livingston, is it possible just for the sake of certainty to bring forward the filing of the statement of agreed facts from next Thursday to early next week?

MR LIVINGSTON: Yes. We consider that could be done by Wednesday and perhaps the parties could update your Honour regarding progress on Tuesday. If your Honour preferred, of course, the parties could provide the draft of the agreed statement as it stands on Tuesday, if your Honour wished to consider it at that time.

HER HONOUR: So what time – next Wednesday is the 10th.

MR LIVINGSTON: Yes, we would suggest midday on Wednesday, the 10th, your Honour.

HER HONOUR: If it is not filed by then, when would you want the matter brought back – the following day at 9.30?

MR LIVINGSTON: Yes, that would be suitable, your Honour.

HER HONOUR: So, 9.30 on the 11th?

MR LIVINGSTON: Yes, your Honour.

HER HONOUR: Mr Solicitor, is that convenient to you or someone on your side?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: All right. Is there anything else you wish to say about any of these orders?

MR LIVINGSTON: No, your Honour.

HER HONOUR: Mr Solicitor?

MR DONAGHUE: No, your Honour.

HER HONOUR: I propose to make the following orders:

1. On or before 12 noon on 10 April 2019, the plaintiffs are to file and serve any statement of agreed facts.

2. If a statement of agreed facts is not filed in accordance with Order 1, then the matter is listed for further directions at 9.30 am on 11 April 2019.

3. If a statement of agreed facts is filed in accordance with Order 1, then:

(1) pursuant to r 25.09.3(d) of the High Court Rules 2004 (Cth), the proceeding is referred to a Full Court for further hearing at 2.15 pm on 6 May 2019, on an estimate of one day;

(2) the plaintiffs are to file 9 hard copies and an electronic copy of an Application Book (containing only the Application for a Constitutional or Other Writ, the Notice of Constitutional Matter and the statement of agreed facts) by 4.00 pm on 12 April 2019;

(3) the plaintiffs are to serve one hard copy and an electronic copy of the Application Book on the defendants and any interveners by 4.00 pm on 12 April 2019;

(4) Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions shall apply to this proceeding with the following variations:

(a) the plaintiffs are to file and serve their written submissions on or before 4.00 pm on 15 April 2019;

(b) the defendants are to file and serve their written submissions on or before 4.00 pm on 26 April 2019;

(c) any person intervening, or seeking leave to intervene, is to file and serve their written submissions on or before midday on 30 April 2019;

(d) the plaintiffs are to file and serve any written submissions in reply on or before 4.00 pm on 3 May 2019;

(5) The plaintiffs are to file 9 hard copies and an electronic copy of the Joint Book of Authorities prepared in accordance with the requirements of Practice Direction No 1 of 2017 by 3 May 2019;

(6) The plaintiffs are to serve one hard copy and an electronic copy of the Joint Book of Authorities on the defendants and any interveners by 3 May 2019.

4. The parties have liberty to apply on one day’s notice.

5. Costs of today’s appearance be costs in the cause.

MR LIVINGSTON: May it please the Court.

MR DONAGHUE: Your Honour, I lost the numbering there at one point, but I think

HER HONOUR: What I have done is I have done 1, 2, 3, and then under 3 there are six suborders which deal with the whole of what is to happen if Order 1 is complied with.

MR DONAGHUE: I understand, your Honour. I think the last of those orders in relation to the written reply – I may have misheard but I think your Honour said 3 May instead of 2 May. Was that a deliberate variation of the proposal, or

HER HONOUR: No, it should have said 2 May and I apologise.

MR DONAGHUE: If the Court please.

HER HONOUR: Anything else, Mr Livingston?

MR LIVINGSTON: No, your Honour, thank you.

HER HONOUR: I think, notwithstanding that I have made that it is to be filed and served by 12 noon on 10 April, may I say this? If it is apparent to you that there is going to be no agreement I would be very grateful if one of you could let my chambers know and have the matter relisted by speaking to the Registrar - listed for directions. As you will have seen, the matter has been listed tentatively for hearing at 2.15 pm on 6 May in order to deal with the fact that the election is to be held, as I understand it, on 11 or 18 May. If that is not to go ahead then the Court would be very grateful to be told of it as soon as possible.

MR DONAGHUE: Of course, your Honour, we will do that.

HER HONOUR: Thank you.

Adjourn the Court.

AT 10.01 AM THE MATTER WAS ADJOURNED