Bay, In the matter of an application for leave to issue or file

[2023] HCATrans 134

[2023] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B54 of 2023

In the matter of -

an application by WILLIAM ANICHA BAY for leave to issue or file

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2023, AT 1.31 PM

Copyright in the High Court of Australia

HER HONOUR:   Pursuant to rules 6.07.3 and 13.03.1 of the High Court Rules 2004 (Cth), I refuse the application filed on 10 October 2023 for leave to issue or file an application for a constitutional or other writ. I publish my reasons and direct that those reasons be incorporated into the transcript. The order of the Court is:

The ex parte application filed on 10 October 2023 for leave to issue or file an application for constitutional or other writ be refused.

I publish that order.

On 9 October 2023 the applicant sought to file an application for a constitutional or other writ.  In it he sought declarations that the ballot paper for the Referendum to be held on 14 October 2023 does not comply with the requirements of the Referendum (Machinery Provisions) Act 1984 (Cth) (“the Referendum Act”), a declaration that the ballot paper disenfranchises qualified electors, a writ of mandamus to compel the Electoral Commissioner to reprint the ballot paper according to law and an injunction restraining the counting of votes until this reprint has taken place. On 9 October 2023 Justice Gleeson directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) (“the Rules”), that the Registrar refuse to issue or file the application without the leave of a Justice first had and obtained by the applicant. The applicant now seeks that leave by way of an ex parte application filed on 10 October 2023, pursuant to r 6.07.3 of the Rules.

Form B of Schedule 1 of the Referendum Act provides that the ballot paper is to contain the title of the proposed law. The proposed law, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth) Bill, was passed by both Houses of Parliament on 19 June 2023. The applicant’s grounds for the orders sought are that the ballot paper contains a reference to the long title of that proposed law when it should refer to the short title, which was referred to in the writ for the Referendum; and that the title disenfranchises electors by misleading them about the content and meaning of the proposed law. Both arguments rely on s 128 of the Constitution. The applicant contends that to adhere to the requirements of s 128 either the correct title or the full proposed law should be on the ballot paper. The failure to do so jeopardises the legitimacy of the outcome of the Referendum.

On 15 September 2023 I refused the applicant’s ex parte application for leave to issue or file an application for a constitutional or other writ. The applicant had argued that Form B of Schedule 1 of the Referendum Act was constitutionally invalid in requiring the title of the proposed law rather than the content of the proposed law itself to be printed on the Referendum ballot paper. The applicant essentially seeks to agitate the question about the requirements of s 128 regarding the content of the proposed law again.

The applicant’s further contention in the present application concerning a reference to the long or short title of the proposed law on the ballot paper adds nothing of substance to his argument. The Referendum Act does not specify which title is to be used. The fact that the short title was used in the writ could not conclude the matter. No requirement is to be found in s 128 by implication.

For these reasons the application is an abuse of process within the meaning of r 6.07.1 of the Rules. That being the case it is not necessary to consider the question of the applicant’s standing.

There will be an order that the ex parte application filed on 10 October 2023 for leave to issue or file an application for a constitutional or other writ be refused.

Adjourn the Court.

AT 1.31 PM THE MATTER WAS CONCLUDED