Boland v Hughes

[1988] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl4 of 1988

B e t w e e n -

VENNARD MICHAEL BOLAND

Plaintiff

and

COLIN ANFIELD HUGHES

(Australian Electoral Commissioner)

Defendant

Application for interim injunction

MASON CJ

( In	Chambers)
Boland

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 SEPTEHBER 1988, AT 2.31 PM

Copyright in the High Court of Australia

C3T9/l/AC 1 1/9/88

MR P.R. SHEILS 1 Q~: Ma¥ it please the C?urt I appear for the

plaintiff with my learned friend, ·

MR A.S. GILLESPIE-JONES. (instructed by

Caradoc Evans & Co)

MRS. GAGELER:  May it please the Court, I appear for the

defendant, the Australian Electoral Commissioner,

to submit to any order of the Court except as

to costs. (instructed by the Australian Government

Solicitor)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with my learned

friend, MR N. YOUNG, to intervene for the

Attorney-General of the Commonwealth. (instructed

by the Australian Government Solicitor)

HIS HONOUR:  Yes, Mr Sheils.

MR SHEILS:  May it please Your Honour. Your Honour, may

I, on behalf of my client, thank the Court for

giving us this urgent time and I do apologize

for the matter being brought at short notice

but we had very little notice of the intention

to act.

HIS HONOUR:  You are not suggesting little notice from the defendant?

MR SHEILS:  No. I understand that the writs went out some

time ago, Your Honour.

HIS HONOUR:  Yes. Of course, that is one of the problems

you face, that your client has taken so long

to move for an interlocutory injunction when

he could have moved, had he been so minded, at

a much earlier stage.

MR SHEILS:  Your Honour, for what it is worth, I am told

that he was minded some time ago but met certain

difficulties which are probably irrelevant to

the procedures of law but relate to expense and

various other matters of that sort.

HIS HONOUR:  Yes. Now, you do not actually have a notice

of motion for an interlocutory injunction?

MR SHEILS:	No, Your Honour.
HIS HONOUR:	Were you proposing to move ex parte?

MR SHEILS:  No, Your Honour. We did serve the statement

of claim and the affidavit. Your Honour will see that it does not ask for an interlocutory

injunction. In fact, it asks for an injunction.

But I must say, Your Honour, that it would be

our view that probably an injunction is not really a

necessary order to ask for because if Your Honour were minded
to make the declaration we seek then we cannot imagine anybody

acting contrary to that declaration anyway.

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HIS HONOUR:  But I am not going to make an interim

declaration.

MR SHEILS:  May it please Your Honour, in those circumstances

we would ask for an interim injunction.

HIS HONOUR:  And what is the form of the injunction you

ask for?

MR SHEILS:  The form simply - "until further order", the· form

of the order in three of the prayers in the

statement of claim, the orders sought in the

statement of claim:

Until further order an order that the

defendant refrain from submitting in the
said referendum a proposed law which
contains more than one proposed alteration

of the CONSTITUTION.

I should preface that, Your Honour, by saying

that it would not be contended that the other
three, that is, the first, second and third

questions, contain, for the purposes of this

application, more than one law. We would be

saying that whilst there may be a number of changes
consequent on each of the questions, because
of a number of sections being amended, we do

not say that the amendment of several sections

cannot constitute one law. Our argument is,

really, that the fourth question in the referendum,

or the fourth bill which is presented, is a bill

which does not change one la~ or present one law, it presents three laws and that this is

not in accordance with the scheme of section 128

of the CONSTITUTION. That, in a nutshell is

the short aspect of the argument.

HIS HONOUR:  Yes. How do you support it? What is the

basis for the suggested conclusion that because

the three topics are unrelated they should be

made the subject of three separate proposed laws?

(Continued on page 4)

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MR SHEILS:  Your Honour, it is necessary to start, in our

submission, at the beginning by looking at

section 128 of the CONSTITUTION - Your	Honour
has that before you?

HIS HONOUR:	Yes.
MR SHEILS:	The section states:

The proposed law for the alteration

thereof must be passed by an absolute majority

of each House of the Parliament, and not

less than two nor more than six months

after its passage through both Houses the

proposed law shall be submitted -

et cetera. It goes on to refer to "such proposed

law" and "the proposed law" in a number of places

and down at the second-last paragraph, again

the singular:

No alteration -

interestingly, no law for the alteration, no

proposed law for the alteration but -

No alteration diminishing the proportionate

representation -

et cetera. The argument is shortly this, Your Honour,

that the CONSTITUTION in section 128 really

is clearly put there for the the purpose of

allowing voters to accept or reject proposed

changes to the CONSTITUTION. That is recognized

in the ballot paper which is before the Court
in the affidavit as being the proposed one because

of the questions as they are put:

Do you approve this proposed alteration -

not, "Do you approve this proposed law" are the
words in the ballot paper.	Your Honour may

not have the affidavit before you.

HIS HONOUR:  Yes, I have the affidavit, I have read it.

That is the affidavit of Vennard Michael Boland,

sworn 31 August this year?

MR SHEILS:  Yes, Your Honour. Your Honour will see at

the bottom of each of the numbered questions:

Do you approve this proposed alteration?

Your Honour, we would say that the principle

behind section 128 is that, really, it has

to be read as, in the first paragraph:

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the proposed law for the alteration -

must mean, "the proposed law for each alteration" or

at least "each subject-matter".

HIS HONOUR:  But why does one have to imply that?

(Continued on page 6)

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MR SHEILS:  Well, Your Honour, because if it were otherwise

we would say the proposed alteration cannot be said

to be submitted to the voters because the voters

cannot say"yes" or "no"to the proposed alteration,

they can only say "yes" or "no" to a conglomerate

group of alterations. Our submission is that a

proposed law must be one separate proposed law

for each topic of alteration at the very least.

HIS HONOUR:	So that you rely on the reference in the singular to proposed law?
MR SHEILS:	Yes.
HIS HONOUR:	And you rely on what is to be distilled from

the notion of constitutional amendment based on

the ascertainment or true reflection of the will

of the people?

MR SHEILS:	Yes, Your Honour.
HIS HONOUR:	On the footing that youcould only ascertain

the true will of the people in relation to each

of the three elements in this proposed law by

putting it forward, on its own, for approval

or rejection on its merits?

MR SHEILS:  Indeed, that is how I would like to have put

it, Your Honour.

HIS HONOUR:	Yes.
MR SHEILS:	Your Honour, the point which goes with that

is that if you look at the proposed law which,

again, is exhibit B to the affidavit, it contains

an amendment, by the insertion of section 80,

"Trial by jury", subsections (2), (3), (4) and (5).

We would say that that is not four or five different

amendments, that is one amendment for the purpose

of our argument, at least, because they have a

cohesiveness and a wholeness about them which	deals with one topic and would allow a person
who was being asked to vote upon it to say, "Well,
is that the concept I want in my CONSTITUTION,
or is it not?" But the nex;f is the "Acquisition
of property under State law, the proposed
section 115A. That is a completely different
matter.

Now, it is conceivable, we would submit,

that a person may be very much in favour of
the first and very much contrary to the second,

or vice versa. The third is "No establishment

of religion, ete.", 116.

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HIS HONOUR:  Do you not have some difficulty with

sections 54 and 55 of the CONSTITUTION, where

the CONSTITUTION is dealing with proposed laws
and it is limiting the subject-matter of a

proposed law and, for that matter, a law, so

that it does not go beyond the specified subject-

matter in respect of content? Do not those

sections indicate that if the framers of the

CONSTITUTION had limitations of that character

in mind when they framed section 128 they would

have dealt with the question specifically and

precisely?

MR SHEILS:  We do not perceive that as a difficulty for

one of two reasons, Your Honour - for two reasons.

The first is that sections 53 and 54 both speak

in the plural, to begin with, and section 128
speaks in the singular and section 55 speaks

in the plural too. And the second is that

section 128, in our respectful submission,

envisages - whilst sections 54 and 55 envisage

that there will be a multiplicity of laws on

taxation or similar matters, proposed laws

appropriating revenue, section 128 envisages

that there will not really be any more than an

amendment at a particular time.

Obviously, there may well have been in the

minds of some people that from time to time there

would be more than one amendment but we would

respectfully submit that the use of the singular

in this case, in section 128, was deliberate

and not merely the often found guise of using

the singular which would embrace the plural in

most statutes by reason of such provisions as

the ACTS INTERPRETATION ACT.

We would say that the true content of this section indicates that it is a deliberate

intention that the people who are to vote upon

the law had it presented to them in such a manner

that they may truly express their view as to

each proposed amendment. That this is recognized

by the Commonwealth clearly, in our submission,

arises from the way the ballot paper, the sample

ballot paper which is set out in the affidavit,

is put.

First of all, although I have been talking

of the fourth question and there are, in our

submission, three laws in it, Your Honour will

not have failed to note that there is a single

law in each of the first three questions. If

it was not necessary to put a single law in each

question, they could have put all six of them

in the one question. They would not have needed

to have No 1, No 2 and No 3 separately and what

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they have done is add three more in the fourth.

So we would submit that that is really a

recognition by the executive of a way in which

this ought to have been done and has been done

in the past.

(Continued on page 9)

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MR SHEILS· (continuing): Question 4 does not accord, we would

respectfully submit, with those principles.

It is uncertain in its result in that you cannot

know what a person has voted in favour of and

a person who is faced with it may find it difficult

to know what he is facing with. I am just reminded,

Your Honour, that the bottom part of it says,

"Do you approve of this proposed alteration?" -

it is, in fact, three alterations, at the bottom,

in number 4. It is not "this"; it should read:

"Do you approve of these alterations", even

though it is "of this Act" - it is "these"

alterations. So it is misleading and it is

difficult to see how it can be answered. We

would submit it is not what is required, for

the reasons I have gone over and I will not

say any - - -

HIS HONOUR:  But it is clear enough, is it not, that either

the voter is in favour of the three, that is
expresses approval of the three, or expresses
rejection of the three? That is the only choice

offered to the elector.

MR SHEILS:  That is the only choice, yes, but we would

quarrel with what Your Honour says - - -

HIS HONOUR:  Yes, his choice as manifested in the ballot

paper is clear enough, is it not, having regard

to the limitation of the choice offered to him?

MR SHEILS:  Yes. His choice, finally put, is there but

what Your Honour said a moment ago, it is clear
enough - if I can phrase it as closely as I

can - that his preference is expressed, we would

quarrel with Your Honour for this reason:

he may say, as an example, "I think number 3

of those is of such paramount importance, even

though I'm against numbers 1 and 2, that I will

vote for that and sacrifice my view on numbers

1 and 2, even though I wouldn't like to have
it in there.	But I must have number 3 because

it's very important."

HIS HONOUR:	He may think that but he is only permitted to say that he is in favour of the proposed
alteration involving the three elements or he
is against the proposed alteration involving the three elements.
MR SHEILS:	Indeed, Your Honour. Not only would we adopt

that as a way of expressing the problem that

we face but that is the way it has been expressed

in a number of American cases. We have been

unable to find any Australian cases that assist

in this matter but there are a number of American

authorities which deal with just that concept.

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But before going to those, may I say this: the

American cases that we have found, limited though

they are, do seem to accord with the Australian

concepts, as we understand them, of construction

and although I have not referred Your Honour

to the two I am about to mention, they are only

of EGBERT V DUNSEITH, 168 American Law Re12ort 621, annotated.	just self-evident references - there is the decision
The very short point of that case 1s this quotation:

The cardinal rule of construction is that

it must be so construed as to give effect

to the intentions of the people who adopted

it.

We would submit that the people who adopted

it had the clear intention, in section 128,

of making it unalterable unless it is clear

what the alteration is.

And the second principle is unreasonable

or observed consequences should, if possible,

be avoided -

be absurd if you could load into an amendment

I do not even need to quote authority for that,

of this sort all sorts of contradictory matter

which might disguise reality under the guise
of what is an obviously important and universally

laudible principle for one of your questions.

HIS HONOUR:	I take it from what you have said that there are American decisions which support the proposition
that where you have a provision for an amendment of a CONSTITUTION such as section 128, that
does not explicitly deal with the content of
a proposed law amending the CONSITUTION, none
the less, as a matter of implication there is
a principle that subjects that are distinct
amendments, or proposed amendments?
and unrelated must be made the subject of separate
MR SHEILS:	They do not seem to go exactly that far but

they go this -

HIS HONOUR:  What do they say? What is the principle you

get from them?

MR SHEILS: They go this far:  that they ought not to be

put together and that it is a practice which

is, to use the words of some of the cases,

·"_pernicious", "universally condemned", "vicious",

and "inducive to fraud" - are four of those

that I will come to in a moment.

HIS HONOUR:	When you say "ot:Jght not to be put together", what do you mean by that? Do you mean "ought not" as a matter
of law?

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:MR SHEILS:  No, that it is morally wrong and contrary to

good practice.

HIS HONOUR:	But legally permissible?
:MR SHEILS:	I have not found one where it was done but I have found one where it was said there is no
prohibition in our Constitution to doing this -
this is in the American State. It is
HUBBELL V BETTMAN, (1931) 176 NE 664. There is no prohibition in it but what the Court said was - well, perhaps I could sayit this way. It
is at page 665:

Having examined those authorities, and

having analyzed the Constitution and the

statute relating to the amendement of the

Ohio Cionst"itution-by initiated petitions,

we find nothing expressly prohibiting

the petitioners from uniting in a single

petition amendments of separate and distinct

provisions of the Constitution, even to the

extent of amending section and articles wholly

unrelated to each· other.

But they go on:

Naturally, in the preparation of the ballot,
if and when the questions are submitted to
the voters for their approval or rejection,
the ballot must be so arranged as to permit
the individual voter to voice his approval

or rejection of each section separately.

The point that Their Honours are making in that

case is the point that I was just making, that they are saying you have got to have the clear capacity to make your decision known. There

is also a very wide discussion, or deep discussion

of the cases, in the decision of

JAMES H. KERBY, SECRETARY OF STATE V ARTHUR LUHRS,

which Your Honour does have in the photocopy before

you, and my learned friend has. That decision

is one in respect of which there was a prevention

in the Constitution of Arizona, a prohibition

against putting more than one amendment in at a

time. The headnote accurately sets out part of
the ar~ument.

Only one amendment is submitted, within the meaning of a constitutional provision that if more than one proposed amendment shall

be submitted at any election such proposed

amendments shall be submitted in such a

manner that the electors may vote for or

against such proposed amendment separately,

if the different changes contained in the

proposed amendment all cover matters necessary

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to be dealt with in some manner in order that
the Constitution, as amended, shall constitute

a consistent and workable whole on the general topic embrached in that part which is amended, and if, logically speaking, they should

stand or fall as a whole; but if any one of

the propositions embodied in a proposed amendment,

although not directly contradicting the others, does not refer to such matters, or if it is not

such that the voters supporting it would be

reasonably expected to support the principle
of the others, then there are in reality

two or more amendments to be submitted,

and the proposed amendment falls within the

constitutional prohibition.

HIS HONOUR:  But there was an expressed prohibition there?

MR SHEILS: Indeed, Your Honour.

HIS HONOUR:  1505 Article 21, section 1 said, in that Constitution:

If more than one proposed amendment shall be

submitted at any election, such proposed

amendments shall be submitted in such manner

that the electors may vote for or against

such proposed amendments separately.

MR SHEILS: Indeed, Your Honour.

HIS HONOUR:  Well, that is exactly what section 128 does

not say.

MR SHEILS:  Does not have. The point that we draw from

that, Your Honour, is-, going back, depending on

our construction of section 128 being correct,

then we are simply saying that this Act, if you

look at it the way this Court has said, indicates
there is more than one amendment.	We then go

on with what the court said in that because

the court looks at a number of decisions. May

I take Your Honour to page 1505, and I have taken

the liberty of highlighting in the margin, just

marking in the margin the passages I propose

to refer Your Honour to. About half-way - - -

HIS HONOUR:	Half-way down where?
MR SHEILS:	Half-way down the second column of 1505.
HIS HONOUR:	Yes, how does it begin?
MR SHEILS:	And the constitutional provision - - -
HIS HONOUR:	That is the part I have just read to you.

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MR SHEILS:	Yes.	Would Your Honour continue on:

It is contended that the proposed amendment

is contrary to the provision quoted, in that,

although in name but one amendment, it is in

substance actually three or more.

It is a cardinal axiom of interpretation

of all written instruments that they are to

be construed in the light of their purpose, and

this is particularly applicable to Constitutions

which are by necessity general in their
nature and presumably intended to remain in

fore e for a long period of time. It is therefore

held that they are to be construed in the light
of the exigencies and conditions which they

are intended to meet and deal with.

And His Honour refers to authority.

It was agreed by counsel for both plaintiff

and defendant at the oral hearing of this

case that there is no doubt the constitutional provision above quoted was intended to prevent the pernicious practice of "logrolling" in the

submission of a constitutional amendment.

This so-called logrolling may be illustrated

as follows: Three interested parties are desirous

respectively of securing the enactment into law

of three distinct propositions, A, B, and C.

These propositions are so essentially dissimilar

that it is obvious that the legislators, who

must pass thereon, will probably be divided

in their opinion as to their merit. Some of

them may earnestly desire proposition A,

while being opposed, though in a lesser degree,
to Band C. Others consider the enactment
of proposition B of paramount importance,
while objecting to A and C, while the members

of a third group are willing to sacrifice

of securing C. their convictions on A and B for the sake (Continued on page 14)

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MR SHEILS (continuing):

The original framers of the three

propositions, realizing this situation,
place them all in one measure, so that a legislator must vote either yes or no on

the measure as a whole. He is thus forced,

in order to secure the enactment of the

proposition which he consideres the most

important, to vote for others of which he

disapproves. Such practices have been

universally condemned by impartial students

of public affairs, and yet they are notoriously
prevalent in all legislatures. Indeed,

so true is this that our Constitution permits

the Governor to veto separate items of an

appropriation bill, without rejecting the

whole bill. Article 5, § 7, Constitution

of Arizona. But, if these actions are evil
in the Legislature, where they deal only

with statutes, much more are they vicious

when constitutional changes, far-reaching

in their effect, are to be submitted to

the voters. The principle involved is well

summed up in the dissenting opinion of

Justice Graves in STATE EX REL V GORDON.

While in that case Justice Graves was in

the minority, in the later case of STATE

V GORDON the majority opinion in the case

first cited was expressly overruled and

the reasoning of Justice Graves adopted.

He said:

11

••••• Propositions relative to the

taxing power of the state, and propositions
to be voted upon by the plain people, must

be plainly stated, and in single and

substantial form. Not only so, but they

must be so stated as to avoid what has been

denominated by the courts as 'log-rolling'

which would not occur in the interest of	in the interest of a combined proposition,
a single proposition. The courts in the
administration of justice, and without any
reference to constitutional mandates, have discovered that doubleness of propositions to be voted upon by the public was inducive
of fraud, and that it was uncertain whether either of two or more propositions could
have been carried by vote had they been
submitted singly.

HIS HONOUR:  Yes, I have read the judgment. I do not think

you need read any more from it, Mr Sheils.

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MR SHEILS: Your Honour, we say as to that - perhaps I need

not take Your Honour further on that. May I take

Your Honour - first, before going any further, one

of the other matters that we rely upon in that case

is the very strong condemnation of this kind of

behaviour and we say that this kind of behaviour

would not have been what was envisaged by those who

adopted or framed section 128 of the CONSTITUTION;

that it is, in fact, the sort of act which is

contrary to public policy.

HIS HONOUR: Well tell me, now that you are speaking about what

the framers of the CONSTITUTION contemplated, do

the convention debates throw any light on the

interpretation of section 128 that is significant

for the purposes of this case?

MR SHEILS: Your Honour, I have not managed to find anything

at this stage. I do apologise for coming not as

prepared as I would like.

HIS HONOUR: It is a little hypothetical, is it not, to speak

of the contemplation of the framers of the

CONSTITUTION if one has not taken the trouble to

look at the convention debates.

MR SHEILS: Well, Your Honour, it is hypothetical to this extent

that I am unable to say with any sureness except to this: we would say, in the light of what has

been said, not only does that accord with common

sense but principles of common justice and it would

take very strong words in any debate or elsewhere

for Your Honour to conclude otherwise.

Your Honour, there are some other assisting

cases-

HIS HONOUR:  Now, what do they establish? Do they do no more

than repeat the sentiments expressed in the

judgments to which you have just referred or do they

develop new and more illuminating lines of thought?

MR SHEILS: There is some enlightenment, Your Honour, but most

of them deal with cases in which there was an

argument as to whether there was duplicity in what

was done and I think they are simply, really,
examples of whether there are two laws in one or one
law in one and I do not think I need trouble

Your Honour with them if Your Honour has already,

as Your Honour appears to have, concluded that we

have made our point one way or the other, whether

Your Honour accepts it or not.

HIS HONOUR:  It depends what you mean by "made your point", but

I think I - - -

MR SHEILS: Made it clear.

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HIS HONOUR:	I think you have made it clear what you are submitting.
MR SHEILS: That is what I mean, Your Honour.	In PATTON v

MYERS which Your Honour also has, there is a small

assistance. That is a decision in 90 American Law

Reports, Annotated. 570. At 571 the portions of

the Constitution being dealt with on the right-hand

column of the page, His Honour said this:

Any initiative, supplementary or referendum

petition may be presented in separate parts

but each part shall contain a full and correct

copy of the title, and text of the law, section

or item thereof sought to be referred -

this is part of the Constitution -

or the proposed law or proposed amendment

to the constitution.

The same words being used there as in section 128.

Their Honours went on to deal with a number of the
cases and I do not think I need trouble Your Honour
with them as they are mainly, again, question of
whether there was more than one case, except over
the page at 572, in the first column, near the bottom
of the bottom paragraph, the very bottom, just above
the word "Annotation", there is a paragraph that

begins:

The constitutional provision with reference -

going up to the top of the paragraph -

to referendum contained in article II, section le,

is far more specific and emphatic than that with

reference to the initiative contained in

section la. In section le, relating to referendum,

the Constitution markers again and again reiterate

that the referendum is to apply to "any law", to
"such law".	The singular number is used

repeatedly throughout the section. The

Legislature itself is prohibited from passing

a statute dealing with more than one general

subject. Can the people, in one blanket petition,

call for a referendum election upon the entire

legislation enacted during one session of the

Legislature?

(Continued on page 18)

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MR SHEILS (continuing):  And they distinguished the other

case that they were talking about then. The

point that they are making is referred to in

the annotation, over the page at page 573, the

point being made - - -

HIS HONOUR:  What does the sentence which you have just

quoted, "The Legislature itself is prohibited

from passing the statute dealing with more than

one general subject.", what is that reference?

MR SHEILS:	There was a provision in - or is a provision, there may still be, in that Constitution which
prevented the legislature from making a law with
reference to more than one subject-matter in
any one law.  But what had happened in this was
there was an attempt, I think it was on petition - yes, an initiated petition - to have a constitutional
amendment and there was nothing in the Constitution
of the State that prevented more than one law
in the petition.
HIS HONOUR:	Yes, but when you have a specific constitutional

provision that incorporates such a prohibition

relating to the subject-matter of a statute,

it is an easy step to take that there is to be

implied a similar restriction in relation to

a proposed law amending the Constitution.

MR SHEILS:  Yes, it would be, easier than it would be without

it but nevertheless - - -

HIS HONOUR:	Exactly.
MR SHEILS:	But nevertheless, Your Honour, what Their Honours were relying on very strongly is the use of the
singular number being repeated throughout the
section and, Your Honour, I have referred you
to that in section 128 over and over again.

HIS HONOUR:  Yes.

MR SHEILS:  Your Honour, there is a further discussion

of that in the annotation at page 1349 in

62 American Law Reports, but it does not take -

well, it does take it a little further in one

place, at page 1353.

HIS HONOUR:  What is the reference this time?

MR SHEILS: It is 62 American Law Reports, annotated, 1353.

HIS HONOUR:  Thank you.

MR SHEILS: Your Honour has that, I think. There was a

case just before it of WALLACE V ZINMAN

but that case does not seem to touch on anything

C3Tl8/l/ND	18	1/9/88
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that we are dealing with. But at the top of

the page at 1353, the author points out:

If an amendment of the Constitution were

intended, the provision requires steps to

be taken that will apprise the voters

thereof, so that they may intelligently

judge of the fitness of such measure as

a constituent part of the organic law.

We have a state government with three

departments, each to check upon the others,

and it would be subversive of the very

foundation purposes of our government to
permit an initiative act of any type to

throw out of gear our entire legal

mechanism. Our common sense makes us rebel

at the suggestion.

Now, most of that is not pertinent but the point being made by the court there is that it must

be presented intelligently so that you can exercise

your intelligence upon it. And, indeed - I think

I have referred Your Honour to the decision in

which the court pointed out that although there

was no specific prevention of them putting the

law they had to make it clear by separating the

provisions when it went to the vote.

(Continued on page 20)

C3Tl8/2/ND	19	1/9/88
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MR SHEILS (continuing):  We would respectfully submit, Your Honour,

that what is being done in this fourth question is

what is known in America as "logrolling". It is

contrary to public policy as a manner of dealing
with something and unless the very clear words

of the statute show an intention that it can be

done, the Court would lean very heavily against

construing the legislation to allow it, in our

respectful submission, and we rely upon those

American pronouncements as being correct statements

of principle. We say that putting these three

things together is contrary to the spirit and

the letter of section 128.

Your Honour, I do not think we can usefully

say much more. Those are our submissions.

HIS HONOUR:  But there are some other questions. After all,

you are now asking for interlocutory relief.

MR SHEILS:	Yes, Your Honour.
HIS HONOUR:	You are asking for an injunction that I

restrain the submission to the electorate at

the referendum on Saturday of the fourth question.

Now, the grant of interlocutory relief immediately

raises a number of questions. The first question

is, are you prepared to give an undertaking

on behalf of your client as to damages? The

damages may be massive.because the,Commonwealth

will be put to very considerable expense if this

fourth question has to be extracted from the

referendum put to the electors on Saturday.

MR SHEILS:  Your Honour, my client is a rather impecunious

man.

HIS HONOUR:  I think he is likely to be more impecunious

if you give an undertaking as to damages. I

would have thought an undertaking as to damages

is essential to the grant of an interlocutory

injunction.

MR SHEILS:  Your Honour, it certainly has been so for many

years in almost every case. We would submit

that this is a case in t'espect of which the

Commonwealth would be likely not to seek it.

HIS HONOUR:  The second question is delay. What answer

do you have to delay?

MR SHEILS:  To our delay, Your Honour?

HIS HONOUR:  Yes. Well, there has not been delay by anyone

else, has ,:there?

C3Tl9/l/MB	20	1/9/88
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MR SHEILS:	No, Your Honour.	I was thinking of delay

of the question being put.

HIS HONOUR:	Yes.
MR SHEILS:	Your Honour, the only answer we have is that

my client assures me that he has attempted to get

legal assistance to bring this matter to the

Court for some long time but was unable to do

so until his present solicitor in Queensland became

apprised of the matter on Tuesday and offered

to act and contacted us in Canberra on late

Tuesday afternoon. He has, in his own way,

attempted to act but he is a layman and he has -

I can only say, Your Honour, without saying things

that are not really pertinent to the Court's

hearing, that he has attempted to get legal

assistance but has been unable.

HIS HONOUR:  The problem of a late application like this

is.it is not merely delay but it is all the

dislocation, inconvenience and consequential

expense that arises if the defendant is required

to comply with an·mjunction. that restrains the

defendant from submitting the fourth question

to the electors on Saturday.

MR SHEILS:  We are conscious of that, Your Honour. The only

way we could see that that could have been avoided

would be if we had been able to come to the Court

probably a couple of weeks ago.

HIS HONOUR: Well, I am not sure of that and that brings

me to the next question that I wanted to ask you

and that is this:  if your point be a good point,

namely, that there is a defect in the form of
the proposed law and the question, that is, the

fourth question to be submitted to the electors,

that goes to the validity of the constitutional

amendment, why cannot the Court determine the

validity of that amendment at a later stage, if and when the amendment is carried out?

(Continued on page 21)

C3Tl9/2/MB	21	1/9/88
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MR SHEILS:  There is only one way that we can see that

could be done and that is if the Court were moved

by petition signed by an Attorney-General of

a State and that may not happen.

HIS HONOUR:  Why? Why could not an elector maintain a

suit?

MR SHEILS:  Your Honour, section 100 of the REFERENDUM (MACHINERY PROVISIONS) 1984 provides:

The validity of any referendum or of

any return or statement showing the voting

at a referendum may be disputed by the

Commonwealth, by any State or by the Northern

Territory by petition addressed to the

High Court.

And that Act then goes on to say the petition will be signed by the Attorney-General of

whichever place makes the application. We

submit that that impliedly limits the way in

which there can be an attack after the event.

In other words, what we are saying is it is necessary

from my client's point of view that he either

do it beforehand or trust upon the Attorneys-

General of some State to do it and they may not.

HIS HONOUR: It partly depends, does it not, on what is

meant by the expression "The validity of any

referendum" and the section appears under the

heading "PART VIII - DISPUTED RETURNS"?

MR SHEILS:  Yes, "any referendum or of any return or

statement showing the voting". If the "return or statement showing the voting" on question 4 were to be disputed as invalid in some way then,

as for instance not having been properly presented

as a proper question, we would submit that the

Act provides the means by which it is to be done

and impliedly limits that to the right of an
Attorney-General.	We are therefore in the position

where unless we come now we cannot come.

I think Your Honour in fact has touched

upon this point in a decision of a MS BERRILL V

DR HUGHES in which there was an election and

a referendum being disputed and Your Honour dealt

with the fact that the attack was based upon the invalidity of a past election making the

future election and referendum invalid.

HIS HONOUR:	What is the reference to the case?
MR SHEILS:	I think it is 67 ALR.

C3T20/l/ND	22	1/9/88
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HIS HONOUR: Is it on your list of authorities?

MR SHEILS:	No, Your Honour.
HIS HONOUR:	You may be right but my recollection - - -
MR SHEILS:	No, I think it is ALJR - it is an ALJR report,

Your Honour.

HIS HONOUR:	That is unlikely to be right, is it, 67 ALJR?
MR SHEILS:	Yes, I think I have got the wrong reference

but it is an ALJR report and it might be 57 or

59.       I do apologize, Your Honour, for not being

able to remember it but I have read it in the

last week or so.

HIS HONOUR:  But was that a case that dealt with challenging

the validity of a referendum?

MR SHEILS:  Yes, but it was not a past referendum. What

had happened, Your Honour, was Ms Berrill alleged

that the 1984 election was invalid and, as a

result, there was a problem with the holding

of the future election and referendum.
Your Honour held that she could not, by reason
of section 353 of the COMMONWEALTH ELECTORAL ACT,

challenge the validity of the election and you

went on to say that the same answer applied to

the referendum because - it is 59 ALJR 64,

Your Honour, HELEN BERRILL V HUGHES.

(Continued on page 24)

C3T2O/2/ND	23	1/9/88
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MR SHEILS (continuing): Your Honour went on to say that the

same reasoning applied with regard to her argument

about the referendum and you referred to section 100

of the REFERENDUM (MACHINERY PROVISIONS) ACT.

HIS HONOUR:  I shall have to look at the decision. Does that

conclude your argument, Mr Sheils?

MR SHEILS:	Yes, Your Honour.
MR GRIFFITH:	I give Your Honour some material, firstly, as to

delay. I hand to Your Honour a copy of the writ for

the referendum which indicates that the relevant bill

was passed on 1 June 1988 and the writ was signed

by the Governor-General 21 July 1988.

May I also hand to Your Honour an estimate

derived from information supplied to the Attorney by
the Deputy Electoral Comnissioner indicating that the
cost of postponing the referendum as to question 4

would be $29.9 million.

HIS HONOUR:	Have you shown that to Mr Sheils?
MR GRIFFITH:	Yes, he has a copy, Your Honour.

MR SHEILS: Just now, Your Honour, and I am just wondering if my

client is going to ask me to join with him in an

undertaking.

MR GRIFFITH:  Your Honour will see there is allowance there for

"savedcosts" in respect of printing of booklet,

postage, training of polling staff and reduction

advertising. But of course costs of a referendum are

much the same, whether there is one or four questions.

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, treating this application as an oral application for interlocutory injunction, we would
submit firstly, Your Honour, that there is a real
issue as to the plaintiff's standing. Our submission,
Your Honour, would be that there is no standing.
In McKINLAY V THE COMMONWEALTH, 135 CLR 1 - I could
hand Your Honour a photocopy of the relevant page -
in that case Your Honour will recollect there was
every sort of plaintiff one could imagine, State,
Attorney-General of the State relating, and elector and an Attorney-General in his own capacity.

The defendant, Your Honour, did not take any

point on standing but none the less, at page 26,

His Honour the Chief Justice expressed the view that

a plaintiff elector, Mrs Lawlor,from South Australia

had -

C3T21/l/RB	24	1/9/88
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no particular damage or inconvenience accruing

to her as distinct from and beyond any

disadvantage or injury which may be caused to

members of the public generally by the operation

of the Act.

And expressed the view that there was no such - - -

HIS HONOUR:	Did any other member of the Court express a view about that?
MR GRIFFITH:	No, Your Honour, it was not in issue.
HIS HONOUR:	It just strikes me as perhaps a little odd that

an elector and a citizen lacks standing to raise

the validity of a constitutional amendment.

MR GRIFFITH:  Your Honour, it is a question of when can that

person raise it and in what manner.

HIS HONOUR:  Yes, now that is another question.

MR GRIFFITH:  I was going to move to that. In CORMACK V COPE,

131 CLR 432, Your Honour will rerrBIDer there was some

doubt expressed by members of the Court, apart from
the Chief Justice and Justice McTiernan as to whether

members of the Parliament themselves had standing in

respect of an issue of current proceedings in the

operation of section 57 of the CONSTITUTION.

HIS HONOUR: That is a rather different question.

MR GRIFFITH: It is, Your Honour, but it is interesting that the

Court said, well, this is something to be sorted out

after the completion of the process, and we then consider whether or not legislation passed by an

allegedly process is valid or not in suitably

constituted proceedings where persons with an

appropriate standing are a party, without the Court

saying that at that time the members of the Parliament

themselves would have standing in such - - -

T21 HIS HONOUR: But you have another - you have the injection of

a distinct and fundamental consideration there, have

you not, the reluctance of the Court to supervise or intervene in relation to the indoor conduct of the business of Parliament itself.

MR GRIFFITH:  Or perhaps it is a way of expressing the aspect

where the Court has reluctance. We would say it

is an issue as to the reluctance of the Court to

interfere to the course of the process of legislation

being enacted to the point- - -

HIS HONOUR: That is within the Parliament.

C3T22/l/RB	25	1/9/88
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MR GRIFFITH:  We would submit, Your Honour, that it is somewhat

wider than that; it is the course of enactment of

the legislation to the point of assent, and then one

considers whether or not it is valid. This is a

peculiar provision, Your Honour, because we are

still dealing, under section 128, with the proposed

law which is the bill itself; it is not a particular

section of the bill altering one or other section of

the CONSTITUTION. It is the entire bill, including

its title, long title, preamble and operative

provisions and assent provision. That is the proposed

law, Your Honour, which is being put to the people

pursuant to section 128.

We would submit that after the referendum it

would be clear, in our submission, that the plaintiff
would have no standing because then Your Honour would
have the question of - assuming that the referendem

produced the requisite majority and there was then
assent to the bill by the Governor-General - the

question would be as contemplated in CORMACK V COPE,

after the completion of the process there. There is

a law apparently valid and completely passed and the

issue was whether or not, in appropriately constituted

proceedings, the Court would then pass on the question

of validity.

HIS HONOUR: And what would be appropriately constituted proceedings

at that stage?

MR GRIFFITH:  If one looks at the three questions involved in

question 4, for example on the question of

acquisition on just terms, if a person's property

was acquired by a State on other than just terms, the

State could assert that it was not obliged to give

just terms because the amendment was ineffective and

there is the issue inter partes raised in the normal

manner and of course the Court would be able to

consider it.

Perhaps while referring to this aspect, Your Honour,

we would submit that section 180 of the REFERENDUM

(MACHINERY PROVISIONS) ACT just referred to by my

learned friend deals with questions of validity of
the process as to counting of votes and things of
that matter, but even if construed as having a wider
effect on its .;fact, just as in analogous provisions
in the recent WOOD cases, Your Honour, that could not

shut off the Court from dealing with the issue of

constitutional validity. The Act, we would submit,

does not deal with that issue. If it did, of course,

it could have no effect.

The Court may always be able to consider

constitutional validity.

C3T22/2/RB	26	1/9/88
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HIS HONOUR:  Mr Solicitor, can I put the question to you this

way: assuming that there is a question about the

locus of the plaintiff, does the completion of the

referendum process, on the assumption that the

referendum question 4 is carried, does that in any

way make the plaintiff's prospects of success in the

current proceedings any more difficult?

MR GRIFFITH:  Your Honour, these questions are difficult because

although we mention standing, we do not -

HIS HONOUR:  I would not be asking them if they were not

difficult.

MR GRIFFITH:  We do not make the submission on standing on the

basis that that is a complete answer to this

application. Because of the delay, Your Honour, the

position is the Court is not able adequately to

consider the issue of standing or, for that matter,

to the final question of the issue of the point which

is sought to be raised. If the matter had been

issued perhaps a fortnight ago, as my learned friend

indicated, it may have been possible for the Full Court

to have considered the substantive point and resolved it without any question of interlocutory relief. But

we refer to this issue of standing just as a

preliminary difficulty which emphasizes the next step, looking at the issue that is raised, as being a matter

which, on one view, Your Honour, cannot be resolved

completely in these proceedings because of the delay.

But, referring to Your Honour's specific question,"

one cannot give a clear answer because there is - and

obviously a strong answer that can be put - that

there is no standing in any case, before or after.

There is another argument put that even if there is

standing before, afterwards there could be no

standing. But we would submit they are issues which

obviously arise because of the late application, but

ones on which really Your Honour is not able, in the

time available, to have appropriate argument or

consideration given to it. (Continued on page 28)

C3T22/3/RB	27	1/9/88
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MR GRIFFITH (continuing):  They seem to be issues to be

flagged as arising and to be resolved. Your Honour,

quite possibly the argument about standing would

be beyond argument after the referendum but

our primary submission, Your Honour, it is beyond argument before the referendum. That is a matter, Your Honour, where we would see that it is not

really appropriate for Your Honour to be asked

to give a final decision on those aspects.

HIS HONOUR:  Quite obviously, in a case of this kind,

on the assumption that there is substance,
arguable substance in the principal question
sought to be debated, a Judge would refer the

question to the Full Court.

MR GRIFFITH:  If that view was taken, yes, Your Honour.

HIS HONOUR:  If that view was taken. Now, quite obviously,

that cannot be done before the referendum is to

be held on Saturday. It is possible that it
could be done afterwards but then there are all

these questions about the plaintiff's standing,

whether the question is open for resolution at

that stage of the proceedings.

MR GRIFFITH:  Your Honour, we would say as to that matter

though, in our submission, there is no serious
issue to be tried, that is referring to the

interlocutory injunction.test, Your Honour.

HIS HONOUR:  Yes. What do you shortly say about it?

MR GRIFFITH: Well, Your Honour, shortly we say as to that

that when one turns to the provisions of section 128,

Your Honour, the relevant provision in.the third paragraph is that that requires that:

When a proposed law is submitted to the

electors the vote shall be taken in such

manner as the Parliament prescribes.

Now, section 128, Your Honour, refers to "the

proposed law", in one case "a proposed law".

This expression is picked up by the

REFERENDUM (MACHINERY PROVISIONS) ACT with

no further definition. But our submission

is clearly the reference in the CONSTITUTION

and in the (MACHINERY PROVISIONS) ACT is to the

bill which has been passed by each House of

Parliament - that is annexed to the writ which

I just handed to Your Honour.

HIS HONOUR:	So the proposed law means the bill.
MR GRIFFITH:	The entire bill.

C3T23/l/MB	28	1/9/88
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HIS HONOUR:	In the context of section 128.
MR GRIFFITH:	Yes, and not to the particular parts of the bill which effect alteration to the
CONSTITUTION by words of omission, substitution
or addition. The operative parts of this bill,
Your Honour, are section 2, which substitutes
a new section 80; section 3 which inserts new sections 115A and 115B and section 4 which
substitutes a new section 116.  But our submission
is, Your Honour, for the purposes of section 128
of the CONSTITUTION.the proposed law for the
alteration of the CONSTITUTION is the bill
itself, that is the proposed law. So that
the form of the ballot paper is provided for
in section 25(2) of the (MACHINERY PROVISIONS) ACT
and in this case, Your Honour, it is subsection (2)
because there is two or more referendums held
on the same day.

That, in turn, Your Honour, picks up form C,

which is on page 73 of my print of the

REFERENDUM (MACHINERY PROVISIONS) ACT and

Your Honour will there see a form of prescribed

ballot paper where there is more than one proposed

alteration. That contemplates, Your Honour, that

after the direction to the voter, in respect of

each proposal, there should be set out the title

of the first proposed law reflecting, again, we say,

the definition of what is the proposed law.	And
then the question, "Do you approve of this

proposed alteration?" Well, my l~d friend made a point that

it should be in tbe Rltir~l, it should refer to proposal

alterations but, with respect, Your Honour, our

submission is that is not so,because the reference

is not to the various parts - :i,£ one likes operative

parts -: of the proposed law, but to the proposed

law itself in its entirety, which is the bill,

which in this case has passed through both Houses

of Parliament pursuant to the first paragraph

of section 128 and then becomes identified in	its entirety as the proposed law which is to
be submitted to the electors.

We would submit, Your Honour, that the section 128

requires the bill itself, which is passed through
the two Houses or under the default procedure of
the second paragraph absent, consent of both Houses,

which is to be submitted to the electors, not

the various substantive parts which might be pulled

out of that bill. So, Your Honour, our submission

is that here we have a clear reflection in the

REFERENDUM (MACHINERY PROVISIONS) ACT and in the

resultant ballot paper of the constitutional

requirement that the bill, which has passed both the electors, the vote being taken in such manner

as the Parliament prescribes and the tmchanism for that

is the manner of taking ,including the tmchanism for challenge,

provided for in the REFERENDUM (MACHINERY PROVISIONS) ACT as

am:n.ded.

C3T23/2/MB 29 1/9/88

MR GRIFFITH (continuing):  Now, Your Honour, it might have been

possible for Parliament to have provided that where one
has, possibly, three subject-matters as is asserted here

they should be put forward separately but it is rather

difficult, Your Honour, to see how that could be done in

compliance with the requirement of section 128 which

requires "The proposed law" in its entirety to be put to

the people rather than separate elements of subject-matter

or whatever which may be identified.

HIS HONOUR:  Can you tell me why the three separate elements were incorporated in the one bill?

MR GRIFFITH:  No, I cannot, Your Honour. I have no instructions

as to that. That is what Parliament has done, Your Honour.

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, it would have been possible to have had

three bills rather than one bill so in that case one would have three proposed laws rather than one and six questions rather than four but - - -

HIS HONOUR:  Yes, that is how it would naturally occur to one

to put the choice to the electorate.

MR GRIFFITH: Yes, Your Honour. Well, there have been many occasions

in the past where proposed bills have dealt with many

subject-matters. I can hand a list to Your Honour of

various occasions where proposed bills have been put forward

in Parliament doing that. It can be done one way or

another way, Your Honour. This is the way Parliament has

chosen. But, in our submission, section 128 attaches

at such time as one has a proposed law which has gone

through the necessary parliamentary process of being

passed by both Houses or being passed by one House within

the procedure provided for by section - - -

HIS HONOUR:	If this practice has been followed on a number of occasions in the past it may go to explain partly why it
is that the electorate has rejected so many proposals
for reform of the CONSTITUTION.

-MR GRIFFITH: Yes. Well, Your Honour, that would seem to be

perhaps a fertile basis of post-graduate study and analysis.

HIS HONOUR: Well, I do not think it would require much study,

would it?

MR GRIFFITH: Well, Your Honour, if one had a definitive reason

why constitutional amendments do not pass, no doubt

that would be a.very useful matter for consideration of

political science and political debate in this country.

But, one can imagine, there is no simple answer to why referendums do not pass. One possible answer is our

CONSTITUTION is perfect already.

HIS HONOUR:	No, I am sure there is not a simple answer but I was merely suggesting this may be a contributing factor
if it is a practice that has been frequently followed in
the past as you seem to suggest it has been.

C3T24/l/PLC	30	1/9/88
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MR GRIFFITH:  Your Honour, it has been more frequently followed

in bills which have been ·put forward but not passed in

both Houses. For example, Your Honour, in the case of the particular referendum with respect to Aboriginals;

there were two disparate sections of the CONSTITUTION altered in the one short bill there. I can hand that

to Your Honour if you like, but that is an example of one

which was put to the people in that order. But there

are numerous examples of attempts to introduce bills

which have many subject-matters in the one bill so that

it is nothing remarkable that it should happen here,

Your Honour, other than this seems to be the occasion of the moment we are looking at this one rather than

a previous attempt.

We would submit, Your Honour, that there is no

basis for an implication that a proposed law
must satisfy some test of homogeneity of subject-matter.

The CONSTITUTION does not, in our submission, require

that there be a characterization of subject-matter

so that when there is disparate subject-matter, however

defined, that must be voted on separately. We would

submit, Your Honour, the American cases referred to by

my learned friend turn upon the construction of particular

statutory provisions. For example, in the case of

PATTON V MYERS referred to by my learned friend and

Your Honour, one there sees that at page 572 of the

report that Your Honour referred to a reference to the

singular being used but that is in the context that the -

one is dealing there not so much with constitutional

amendment but a referendum petition which gives the

electorate the right to disallow legislation passed by

the legislature. When one looks at the provision,

Your Honour, one has then a referendum provision which

lets a proposed law or the proposed law, namely a law

which has already been passed, to be challenged. Well,

Your Honour, it is perhaps quite a natural construction

to say that if you are going to have a certain number of signatures to a petition to challenge the proposed

law, you can only do it to one proposed law at a time and

not find people to disagree with one or other of the

entire legislative slate of the session to sign for

various motives to produce a petition which would put

the whole democrative process in jeopardy.

I do not know whether Your Honour was handed the

attached pages by way of annotation to this report

following page 572? Does Your Honour have - - -

HIS HONOUR: Yes, I have those.

MR GRIFFITH: Well, if Your Honour would turn over to page 573

in the annotation one will see there discussion of cases

such as PATTON V MYERS. But at the right-hand colunm,

second paragraph, the learned annotator says:

C3T24/2/PLC	31	1/9/88
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MR GRIFFITH (continuing):

The bases of decision in the cases

under discussion vary so that no general

rule may be stated.

And, with respect, Your Honour, the annotator

is quite correct.

HIS HONOUR:	I think Mr Sheils conceded that in the course of his argument but I was merely going to ask
you and you may not be able to answer it,
Mr Solicitor, you have had the opportunity of looking at all these cases, I take it: do any of the cases support the fundamental proposition
that you can imply from a general provision for
amendment, such as section 128, a restriction
of the kind for which Mr Sheils contends?

MR GRIFFITH:  Not on our reading, Your Honour. The

problem is there is not a general section 128

provision in the first place. One has these

voter initiated referenda process by reference

particular constitutional provisions. Of course,

Your Honour, clearly a case where there is a

constitutional requirement that it be limited

to one law makes it clear that there could be

no other response but in cases absent that,

Your Honour, we are unable to discern any relevant

principle that we could submit even adverse to

us would indicate a doctrine such as Your Honour

summarizes it.

HIS HONOUR: Well, then, do you concede that this 1s, 1n

essence, an example of log-rolling?

MR GRIFFITH:	No, Your Honour.
HIS HONOUR:	I thought you would give that reply.

MR GRIFFITH:	I do not know what log-rolling is but
HIS HONOUR:	One of the judgments makes it perfectly

clear.

MR GRIFFITH:  Your Honour, if I make a response to that,

my submission is that it has a contrary effect

because if one has three hurdles ahead and one

is told you have to jump all three to get there,

the chances are there that three times greater -
or perhaps a mathematician would say, 30 times

greater or 64 times greater - I was never good

at those extensions, Your Honour, logarithmic

ext ens i on s ..... th a t you w i 11 no t g e t over . I t i s

a bit like saying, "Three pennies in a row, you

will get heads three times in a row." One would

assume the likelihood - I am not very good at

two-up, Your Honour, but it must be at least

C3T25/l/ND	32
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12 to 1 that you are not going to get them.

So that, we would submit, Your Honour, that it

may well be a matter of rolling the log backwards
because you have to get support for all three

to get the assent.

But, Your Honour, in the context of this

case, that is the expression of the parliamentary

process that has produced these bills and the

electorate has it as on a take it or leave it

basis. Now, it could have been done differently

by separate bills but it has not, Your Honour,

and we would submit, Your Honour, the CONSTITUTION

so provides. And that can be tested in another

way, Your Honour, we would submit the CONSTITUTION
would permit a proposed law providing that all
words after "the" in section 1 of the CONSTITUTION

be deleted and that a new CONSTITUTION be

substituted including a section 128.

HIS HONOUR:	We do not have to answer that question.
MR GRIFFITH:	But, but, Your Honour, that would be

adumbrated, in our submission, by the process

of section 128.	So that that is perhaps a furtherest
expection of the possibilities.	And, Your Honour,

one can see grave difficulties if one takes any

further step as what is related subject-matter

but, in our submission, Your Honour, it is not

appropriate to open up those issues.

HIS HONOUR:  Can I ask you the question I asked Mr Sheils?

Have you had a look at the convention debates

to see whether they throw any light on this?

MR GRIFFITH:  No, we have not, Your Honour. The matters

we did desire to refer to briefly, Your Honour,

having made these brief submissions that we submit

that there is no serious question to be tried,

we would submit, Your Honour, in this case, on

the basis we have an oral applicatim for interlocutory

injunction at the last moment which involves,

we would say, an interference with the legislative

process in the broad sense of the process to
pass a bill by a special constitutional procedure

albeit that it is alleged to be restraining an

excess of constitutional authority.

If one conceds for the moment that the Court

does have that jurisdiction, it was not conceded

by Justice Stephen in CORMACK V COPE but it is

clear that the decision of the Court stands as

authority that there is such authority, we would

submit, Your Honour, the Court would require

not just a clear case, but, in our submission,

close to an overwhelming case - a higher

C3T25/2/ND	33
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requirement of having an arguable case that we would submit it is not sufficient in the particular circumstances here, referendum process,

when one has a level of democratic participation

and that. includes having re8ard to the position	from the proponents of the No" case as well
as the "Yes" case, Your Honour, to enjoin that process of debate right on the eve of its finality and to act on the basis that it may well be that this whole process of democratic debate will have to have to be cranked up again
in a separate exercise in the event that the
plaintiff were unsuccessful.

(Continued on page 34)

C3T25/3/ND	33A
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MR GRIFFITH:	So picking up the approach, Your Honour, indicated

in QUEENSLAND V COMMONWEALTH, 77 ALR 291 at 295,

we would say it is clear to the point, we would

submit, of a particularly high requirement, if

not an overwhelmingly strong case given the late

moment of the application now made. Your Honour,

absent, perhaps, consideration of standing, one

could see, we would submit, that if this application

had been made any time after 1 June to within

the last couple of weeks, apart from issues of
standing, it would have been possible one expects

to have had a decision of the Full Court on it.

That has been shut out because of the plaintiff's

lateness in applying. We submit, Your Honour,

that does have an effect backed onthe question

of what is the nature of the case that one should

demonstrate in these peculiar circumstances.

I think we have said sufficiently in what

we have submitted so far on the question of also
the peculiar circumstances of interference with
legislative process and invite Your Honour to regard
this process as part of that process. If we
could make a few short submissions on balance

of convenience, Your Honour.

HIS HONOUR:	Yes.
MR GRIFFITH:	The requirement of section 128 requires the

bill to be submitted:

not less than two nor more than six months

after its passage through both Houses -

of Parliament, which occurred 1 June. A

postponement is lawfully possible, Your Honour,

under section 10 of the REFERENDUM (MACHINERY

PROVISIONS) ACT amended by section 5 of the

REFERENDUM (MACHINERY PROVISIONS) ACT 1988,

which is number 77 of 1908. But, in our submission,

Your Honour, the balance of convenience is all
one way.	I have referred Your Honour to the

factor of cost which is estimated at $29.9 million,

which, of course, is not something that can be

borne by the defendant, it would be borne by the

Australian public.

There is an issue of the choice of polling

day, Your Honour. Polling days are chosen for
particular reasons, for example, often to avoid

clashing with school holidays and that sort of thing so that there is a public convenience or

inconvenience there. There is the obvious issue,

Your Honour, that if the plaintiff were successful

every voter in Australia would have to turn out

again to vote twice in a period of months. We

would submit, Your Honour, that clearly that must

be regarded as a gross public inconvenience unless

C3T26/l/MB	34	1/9/88
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there is a very strong case, indeed, for the

public to undergo that inconvenience for reasons

relating to the operation of the democratic

process. Your Honour, ballots have already been.

cast in respect of all questions including

this question and, Your Honour, I have no

instructions as to how many votes have been

cast so far but ordinarily I am instructed that

postal votes account for about 6 per cent of

total votes so there might be quite a significant

number of votes already cast.

We would submit, Your Honour, that

CORMACK V COPE would confirm the Court's undoubted

jurisdiction to pronounce invalidity after the

referendum and absent problem about standing,

Your Honour, it could be done in this proceeding

perhaps .• With the difficulty of standing, we would

submit, as in CORMACK V COPE within the
contemplation of the various members of the Court,

the question raised could be litigated and determined

upon by this Court in an appropriate way. ·

We submit, there is an overriding public

interest in the democratic process leading to the

submission to the electors provided for in

section 128 to be completed and any issue of

validity to be determined by appropriate litigation.

We do not concede that this litigation is the

appropriate litigation. If the plaintiff's

case is well-founded, Your Honour, well, then the

CONSTITUTION will not be validly amended.

Section 100 of the REFERENDUM (MACHINERY PROVISIONS)

ACT will have no effect and Your Honour said,

in QUEENSLAND V COMMONWEALTH, to which I have

referred, there is no point in restraining what

is ex hypothesi void and of no effect. My learned

friend's case is that what is intended to be done

here will result in something which is void and

no effect.

The last matter we refer to Your Honour, in

this aspect, is that there would be detriment both

to the proponents and to those who oppose the

particular matters included within question 4.

The cases against as well as the case for have been prepared, presented, circulated in the

pamphlet and, Your Honour, each side has done

what it regards as appropriate or possible to raise

public awareness in the contemplation of voting

throughout Australia by reason of submitting this

issue to the electors on Saturday.

C3T26/2/MB 35 1/9/88

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MR GRIFFITH (continuing): Your Honour, we have referred

sufficiently to delay which remains, we would submit,

basically unexplained and even if - explained, Your Honour,

delay for which there is no relevant excuse, in our

submission.

So, our general submission is that the process for

amendment provided for in section 128 provides a political
and democratic process for the mechanism for amendment to

the CONSTITUTION and we would submit, Your Honour, for the

various reasons of approach which are perhaps summarized

by Justices of this Court in CORMACK V COPE, quite apart

from the issue of standing and whether or not there is a
substantive issue of validity to be determined, it is
wholly inappropriate for the Court to make interlocutory

orders affecting the completion of the process.

Your Honour, in CORMACK V COPE, Justice Stephen

referred to a possible case where validity could not

later be passed upon, although His Honour there was unable

to identify such a case. Clearly that is not the case

here.

As to the question of undertaking, Your Honour:

well, clearly, there is no content in any undertaking

offered. It is almost pointless to seek one but we do

refer Your Honour to the unavoidable damage which will be

suffered by the public of Australia if there is an - - -

HIS HONOUR: Well, you need not labour that point, Mr Solicitor.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  Thank you. Yes, Mr Sheils?

MR SHEILS: Very shortly, Your Honour: as to standing, we say

that the evidence is before Your Honour in the affidavit

that this man is obliged to vote and is fined if he does

not but he is in the position where he has sworn to

Your Honour that he cannot vote as he wants to vote.

He is obliged to cast a vote which, in fact, is not the

vote he wants to vote. Even if he does it informally,

it does not achieve what he wants to achieve.

HIS HONOUR:  I suppose that is a situation that confronts many

electors on many occasions, Mr Sheils.

MR SHEILS:  I have not really thought of it that way but that

is certainly so, Your Honour. But that would, we would

submit, give him standing, that he, in fact, has to vote

whether he likes it or not and that he is deprived by this circumstance of doing that which is envisaged in section 128 and required. He is deprived of it. And if

the voter cannot vote as envisaged by section 128 because

of the way it is done then the way it is done, we would

submit, cannot be coming within the meaning and intention

of section 128.

C3T27/l/PLC	36	1/9/88
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But therewa.s another argument raised by my

learned friend a moment ago or a little while ago now

which is of great strength, we would submit, to the

plaintiff. He used the words, "Where there is more than

one proposed alterations" and went on to show the

prescribed manner. The prescribed manner is set out in

the Act and that is to be found in form C, the ballot

papers, and he has pointed out - and this may be the

answer to the whole thing - "Do you approve this proposed

alteration?" "Do you approve this proposed alteration?"

where there are a number of alterations. The

Parliament or the Electoral Commissioner must put the Act but he must put it in the manner which is prescribed.

The prescribed manner is that the alterations be broken up singularly and that appears from form C. All the alterations do not say, "Do you approve this bill?" or "Do you approve this Act?" They say, "Do you approve

this alteration?" And if the bill is put in such a way

that it complies with this prescription in form C, each

of the alterations is broken up separately, and that

would indicate,	we would respectfully submit, that
what is being done is illegal.	Those are our submissions,
Your Honour.

HIS HONOUR:  What do you have to say about delay? Do you want to

say anything more about delay? The consequences of delay

including the inconvenience that is caused?

MR SHEILS:  Your Honour, the consequences are enormous. We are

conscious of that. But the consequences in any other way

are enormous. It was a matter which came within our

consideration, that is, the plaintiff's consideration

but he has no right afterwards, as we see the position.

HIS HONOUR:  That is true but the general question of validity

remains open for determination if this referendum

proposal is carried.

(Continued on page 38)

C3T27/2/PLC	37	1/9/88
Boland

MR SHEILS:  Not at his hands and it may never be

questioned.

HIS HONOUR:  Maybe not at his hands but generally speaking

it is and it is unlikely, having regard to the

importance of the various provisions, that their

validity would not be tested by other persons

if we make the assumption that it would not be

available to challenge at the suit of the plaintiff.

But I am by no mean satisfied, at the moment,

that that is the restriction.

MR SHEILS:  Your Honour, what we put about that was a

blanket argument, if I can put it that way.

If a plaintiff in party and party proceedings

were to attack the validity of the amendment

on the grounds that it was not a proper exercise

of the constitutional process, by reason of the

referendum, he would be just as precluded in

party and party proceedings as my client if our

submission is corrrect about section 100.

Section 100 limits the attack on a referendum -

HIS HONOUR: Well, let me say this: if there is a defect

in the procedure and that defect is essential

to the validity of constitutional amendment,

I do not see how a statute can give it immunity from challenge, unless you can persuade me to

the contrary.

MR SHEILS:  I do not think I would wish to, Your Honour,

because I would prefer the view that Your Honour

is expounding. We fear the consequence of the

opposite point of view which Your Honour is putting.

Your Honour, the delay is a long delay in some

respects but it is only a couple of months and

then it is easy to say it is only a couple of

months but a couple of months is very important.

On the other hand, if this man had acted some

weeks before, whilst the Court would have had

perhaps the opportunity to sit as a Full Court

it may not have. One week, three weeks, two

weeks, it may not have been possible to deal with the matter, depending upon the attitude taken by Solicitors-General of other places.

I should say they have been notified. I think

I started to tell Your Honour that and then did

not. And we have received indications from several

that they do not propose to take part but not

indications from all of them.

HIS HONOUR:  But I have no doubt that had this matter been

agitated at an earlier stage and had I come to

a conclusion that there was sufficient substance

in the principal question sought to be raised

by you, there would have been no difficulty in

having the matter determined by a Full Court

C3T28/l/ND	38
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and determined by a Full Court within

appropriate time, assuming for example that the

Court had come to the conclusion that it was

essential to give the decision prior to the holding

of the referendum.

MR SHEILS: In that case, Your Honour, the only point we

make about delay is this: the plaintiff is at
fault in delay in the sense that he has not brought
the proceedings earlier but delay ought not to

stand in the way of what is really a very important

question of law. Either it is arguable or it

is not and if it is a matter which Your Honour

considers quite arguable, we would respectfully

submit that the public interest is such that

it ought to be aired. I do not think there is

anything else we can say, Your Honour. May

it please the Court.

HIS HONOUR:  Yes, thank you, Mr Sheils. I shall announce

my decision in this matter at 10.15 tomorrow.

The Court will now adjourn until then.

AT 3.55 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 2 SEPTEMBER 1988

C3T28/2/ND	39	1/9/88
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