Bryant v The Commonwealth

[2002] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S126 of 1998

B e t w e e n -

JOSEPH RICHARD BRYANT

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons for directions

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 MARCH 2002, AT 9.31 AM

Copyright in the High Court of Australia

MR J.R. BRYANT appeared in person.

MR D.M.J BENNETT, QC, Solicitor‑General for the Commonwealth:   I appear with my learned friend, MS R.M. HENDERSON, for the respondent.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Yes, Mr Bryant.  Before the parties begin, I think the Registrar has notified the parties that I asked that you be prepared to address the question why the matter should not be remitted in its entirety to the Federal Court.

MR BRYANT:   Yes, your Honour.

HER HONOUR:   Yes, thank you.  Perhaps I should find out first though, is there any objection to the summons to amend the statement of claim?

MR BENNETT:   No, your Honour.  My only concern is whether it requires a further notice under section 78B, but that is a matter to be dealt with later.

HER HONOUR:   Well, that can be dealt with – the mere amendment would not ‑ ‑ ‑

MR BENNETT:   Yes, I have no opposition to the amendment.

HER HONOUR:   Yes.  Well, Mr Bryant, your summons for amendment is consented to.  So, by consent, I will make orders that the statement of – it is a writ of summons, is it?

MR BRYANT:   Yes, your Honour.

HER HONOUR:   That the writ of summons be amended in accordance with your summons.  Yes, thank you, Mr Bryant.

MR BRYANT:   Thank you, your Honour.  Your Honour, I obviously need to address the argument against remitting ‑ ‑ ‑

HER HONOUR:   Yes.

MR BRYANT:   ‑ ‑ ‑ the entire matter to the Federal Court.  The requirement to argue this matter should not be remitted to the Federal Court came on short notice and, as a result, is oppressive.  It is oppressive because I was not made aware until 5.15 pm on Thursday night last, followed by a faxed letter from the Deputy Registrar ‑ ‑ ‑

HER HONOUR:   Well, would you like it adjourned?  Let us forget about the oppression.  Let us see, would you like that adjourned?

MR BRYANT:   No, I do not think so, your Honour.

HER HONOUR:   Well, if you do not want it adjourned, forget about arguments about oppression.  You can either apply for an adjournment or you can deal with the matter on its merits.

MR BRYANT:   Thank you, your Honour.  I could have been better prepared, but I think I am prepared sufficiently to argue, but I could have probably been better prepared.  An earlier interlocutory summons in this matter was remitted to the Federal Court for hearing and decision, which resulted in serious maladministration of justice in that the Federal Court required the matter to be filed as a new case in the Federal Court and charged the standard new case fee.

In this matter the judge did not publish his reasons until 13 days after his decision, causing me not to file my appeal until the day following the publication of his reasons.  My appeal was judged to be out of time as the matter was said to be an interlocutory matter that required an appeal to be lodged within seven days, which, in fact, would have been six days before the reasons for decision were published.  As it was a new case in the Federal Court, it was not an interlocutory matter in any matter before that court.

Injustice has already been experienced as a result of a summons in this matter being remitted to the Federal Court.  To do so again would only risk further maladministration of justice.  This summons, the one remitted previously that I have just related to, was filed for the purpose of having the cause of this matter heard and decided before the 1998 general federal election.  Remitting it to the Federal Court produced a disastrous result and no decision on the cause of action has been made.

I now move to the summons of my original writ of summons starting this action.  My affidavit in support of the writ of summons filed and served on 4 September 1998 set out that the matter was urgent – no urgency has been applied by this Court to hearing and deciding the matter as requested.

HER HONOUR:   Well, you do not seem to have taken any steps in the matter.

MR BRYANT:   Well, I filed the summons.  I expected the Court would do something from that point but I later found out ‑ ‑ ‑

HER HONOUR:   No, come on.  There have been pleadings, have there not?

MR BRYANT:   Pleadings ‑ ‑ ‑

HER HONOUR:   And there has been a demurrer filed – a defence and a demurrer filed.  You could have applied – I see here, on 22 October 1998 there was a defence and demurrer filed.  You have taken no step to have the demurrer set down for hearing.

MR BRYANT:   So it is a procedural matter and it is my fault.  Thank you, your Honour.

HER HONOUR:   It would look like it to me.

MR BRYANT:   It was an urgent matter back in 1998 and it remains an urgent matter, not a matter to be delayed by remitting it down to the Federal Court.

HER HONOUR:   Well, you will have it dealt with more speedily in that court than here, I should think.

MR BRYANT:   In my submission, the High Court has sole jurisdiction in constitutional matters.

HER HONOUR:   Well, you must direct your attention to the Judiciary Act and the power to remit and ‑ ‑ ‑

MR BRYANT:   Thank you, your Honour.

HER HONOUR:   Yes.

MR BRYANT:   And that remitting a constitutional ‑ ‑ ‑

HER HONOUR:   And I do not think it is right – and it is not right to say that this is the sole court – the court with sole jurisdiction in constitutional matters.

MR BRYANT:   Well, I will draw your attention to the Judiciary Act shortly, your Honour.

HER HONOUR:   Yes.

MR BRYANT:   And that remitting a constitutional matter for decision by another court is futile and will be seen by the Australian public as a means to avoid or delay the early resolution of this matter – in other words, passing the buck.  It is true that the Judiciary Act provides for remitting all matters – all manner of cases to courts below, but the sections of the Act that do so are in conflict with other sections of the Act. It is my submission that no court below – the High Court can comply with section 23(1) of the Judiciary Act 1903 and, as a result, no decision in this matter is possible in a court other than the High Court.

HER HONOUR:   Well, I do not follow that argument, I am sorry.

MR BRYANT:   Your Honour, 23(1) states:

A full court consisting ‑ ‑ ‑

HER HONOUR:   Yes, I see that.

MR BRYANT:  

‑ ‑ ‑ of less than all the Justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth, unless at least three Justices concur in the decision.

HER HONOUR:   That talks about this Court.  It does not talk about the jurisdiction of other courts.

MR BRYANT:   Well, your Honour, if the Full Court consisting of less than all the Justices shall not give a decision on questions affecting the constitutional powers of the Commonwealth – obviously written for the High Court because you would not – I do not think there is a bench long enough to seat all the Federal Court judges, when it talks about all ‑ ‑ ‑

HER HONOUR:   Yes.  Well, it does not apply to the Federal Court.

MR BRYANT:   It does not, did you say, your Honour?

HER HONOUR:   Yes, yes.

MR BRYANT: Yes, thank you. Section 23(1) clearly sets out the requirements for a decision in a constitutional matter. Apart from the impossibility of any other court meeting the requirements of s 23(1) to hear and determine this matter, the High Court has a moral, as well as a constitutional, duty to hear this matter. The Court is bound by section 32 in addition to 23(1). Section 32:

The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any such matters may be avoided.

I read that to indicate that the High Court should deal with the matter and not complicate it by sending it to the Federal Court, which could end up back in this Court in any case under appeal. The cause of action in a constitutional matter dealing with my fundamental democratic right and, likewise, the right of every Australian elector. The nub of this matter is the constitutional right to directly choose a representative as set out clearly and precisely in section 24 of the Commonwealth Constitution in the words “direct choice”. I submit that this is a matter of the highest priority for the High Court and that this matter may only be decided by the High Court.

HER HONOUR:   But has it not once been decided?

MR BRYANT:   No, I do not think there has been any case in relation to this particular aspect and certainly no case dealing with these types of aspects since 1998 that I know of.

HER HONOUR:   Yes, but that is not so long ago.

MR BRYANT:   There has been one recently?  There has been one recently ‑ ‑ ‑

HER HONOUR:   What, there has been ‑ ‑ ‑

MR BRYANT:   ‑ ‑ ‑ a case, has there?  Did you ‑ ‑ ‑

HER HONOUR:   No, I just said that is not so long ago, 1998.

MR BRYANT:   Well, those cases were, in fact, before this amendment, so they could not have possibly dealt with this amendment.

HER HONOUR:   The relevant amendment is the insertion of subsection (2).

MR BRYANT:   240(2), yes.

HER HONOUR: To section 240, yes.

MR BRYANT:   240(2), yes, your Honour.

HER HONOUR:   Now, does that make it any different from the provision that was considered in Langer?

MR BRYANT:   Yes, your Honour.  The constitutional position in Langer was that – well, the constitutional position as I see it was prior to the amendment that it was possible to vote one, two, three, three, three, or one, two, 100, 200, 300, because the legislation only required a number to be placed in the box and, therefore, to bring this case that I am bringing now about denial of a constitutional right as set out in section 24 of the Constitution, the other side – the Commonwealth would have been able to argue that, “Well, you’re not compelled to put a particular number in those boxes. You could put two, three, three.” And they could have, in fact, argued Langer’s Case against me if I had brought that case at that time.  But since the amendment, where now people are compelled to vote for candidates that they otherwise would not vote for, the whole ball game has changed.

HER HONOUR:   But is not that exactly the position that was in issue in Langer?

MR BRYANT:   I do not believe so, your Honour.

HER HONOUR:   Well, have you read the decision?

MR BRYANT:   A while ago, your Honour.  Not in the last week or so because of the short notice.  Back in 1998 I read Langer I think, your Honour.  So Langer was not about – to my understanding, Langer was not about the removal of the right to a direct choice.  It was about whether you could, under the legislation, vote one, two, three, three, three, three.

HER HONOUR:   And how do you say your direct choice has been affected in a way that is different from what was contended in Langer?

MR BRYANT:   Well, if I am correct on what was contended in Langer, was that Langer claimed that he was within the legislation by voting – suggesting or voting one, two, three, three, three, and in that position, while that was possible, there was no removal of the direct choice because there was the possibility of putting a number of your choice which did not attach to a candidate in those boxes or giving the same choice or the same preference, if you like, to more than one candidate, as Langer suggested and, as a result, those candidates – the vote becomes informal at that point and could not be – those candidates never got a preference.

But the situation is different now as a result of 240(1) or (2) in the fact that now it is compulsory to vote for candidates that you otherwise would not vote for, and that compulsion, by forcing people to vote consecutively without repeating any number, and that consecutive is to the one which is necessary to make a formal vote, people have lost the right of choice as per the Constitution.

HER HONOUR:   Well, it comes down to the same argument though, does it not, that you are forced to vote for somebody for whom you do not wish to cast a vote?

MR BRYANT: Yes, that is the same argument, but my argument goes to the Constitution and a right to a direct choice.

HER HONOUR:   Yes, but it does come to that argument, does it not?

MR BRYANT:   Well, I am not that conversant with Langer at this point of time, your Honour, so I could not agree.

HER HONOUR:   Well, your argument does come to the point when you complain that you are forced to vote for someone for whom you would rather not cast a vote.

MR BRYANT:   Well, it forces you to vote in a fraudulent manner.  There are a number of issues at stake, your Honour.

HER HONOUR:   Well, because you are forced to vote for someone for whom you would prefer not to vote.

MR BRYANT:   Yes, that is a fraudulent vote.

HER HONOUR:   Yes, but that is what the argument comes to.  You can forget the adjectives for the moment.  If you could just concentrate on the essence of your argument.

MR BRYANT:   The essence of my argument is that the legislation now denies the right to a direct choice whereas prior ‑ ‑ ‑

HER HONOUR:   Why?

MR BRYANT:   ‑ ‑ ‑ to the amendment, it did not.

HER HONOUR:   Why?  Because?

MR BRYANT:   Because it forces people to vote consecutive numbers to the number one.

HER HONOUR:   Well, are you saying that the only valid voting scheme is first past the post, where people cast simply a number one vote?  Are you saying that?

MR BRYANT:   No, I am not saying that.  I am saying that the way the legislation is now worded the right to a direct choice has been removed.

HER HONOUR:   Yes, I know that, but in what way do you say it has been removed?

MR BRYANT:   By being forced to vote ‑ ‑ ‑

HER HONOUR:   For all candidates?

MR BRYANT: ‑ ‑ ‑ in accordance with section 240(2).

HER HONOUR:   By being forced to vote for all candidates in order of preference?

MR BRYANT: Well, you are not forced to vote for them in order of preference because a number of those candidates might be entitled, in my reasoning, to equal preference – to equal last, if you like, your Honour. So I am not being forced to give my preference. I am being forced to give the government’s preference, or the legislation’s preference. In fact, it is an attack on one of the few democratic rights, if not the only right, provided for – clearly provided for in the Commonwealth Constitution outside of section 128, which provides a Clayton’s right to approve or reject what politicians have already decided for me and the rest of the Australian people. Thank you, your Honour. Denial of the right for a free vote is a denial of democracy.

HER HONOUR: Now, I think you should direct your arguments now, not to the validity of section 240, because that is not a matter which is for me to determine, at least not today, but as to why the matter should not be remitted to the Federal Court and ‑ ‑ ‑

MR BRYANT:   Your Honour, I submit in support of my argument not to remit this matter down to the Federal Court – I tender printouts from the High Court web site and the High Court web site about the Court, the role of the Court:

The High Court is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

And then, your Honour, I go to the Federal Court web site and I find three pages of material about the court and I tender that document as well and nowhere in that document, in the three pages, does it mention that the Federal Court has jurisdiction or decides matters in relation to the Constitution. Finally, I go to the Australian Law Reform Commission Report July – 2001 at 3.47. It states:

The Commission considers that the High Court should continue to exercise original jurisdiction under the Electoral Act.  The political nature of electoral disputes and the likelihood of them attracting significant public interest or controversy make it appropriate for the jurisdiction to be exercised by the High Court.  The authority of the High Court stamps a degree of finality on contentious proceedings in a way that may not be possible if the matter were entrusted to another court, such as the Federal Court.  Moreover, in the Commission’s view, the political importance of these cases makes it likely that many electoral disputes would be appealed to the High Court if another court were chosen as the court of first instance.

3.48    The Commission heard no evidence to suggest that the High Court is not able to deal with the limited, cyclical workload created by its electoral jurisdiction.  As Figure 3‑2 shows, the Full Court heard two matters arising from the March 1996 federal election and three matters arising from the October 1998 election.  This is a modest imposition on the Court given the nature of the issues at stake.  The Commission notes that the High Court has power to refer matters or part matters to the Federal Court in appropriate cases, although the High Court Registry advised the Commission that it was not aware of any cases in the last five years in which this had been done.  This power gives the High Court the necessary flexibility to divest itself of fact finding or other issues that are not suitable for its determination.

3.49    In relation to the question of constitutional validity, the Commission considers that any outstanding issues arising from the High Court’s jurisdiction under the Electoral Act should be left for the High Court to resolve when appropriate.

That is my submission, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Solicitor.

MR BENNETT:   If your Honour pleases.  Your Honour, we support what has been put in relation to the matter staying in this Court.  We do so for these reasons.  It is a matter in which there cannot really be any dispute as to fact.

HER HONOUR:   Well, we have got an application for a jury, I think.

MR BENNETT:   We do, your Honour, and that we would submit should ultimately dismissed on an appropriate occasion, today or subsequently.  But there is no dispute of fact that I am aware of.  The affidavit filed below consisted of one paragraph which was not in dispute and a number of paragraphs of legal argument and submission.  The power of remitter, we would submit, is normally more appropriately exercised in cases, as was said by the Law Reform Commission, where there are extensive disputes of fact.

HER HONOUR:   But is there any relevant difference between the matters in issue in this case and those that were in issue in Langer?

MR BENNETT:   In issue in obiter in Langer, no, your Honour.

HER HONOUR:   I do not understand that question.

MR BENNETT:   Well, your Honour, the issue in Langer was the validity of a provision which made unlawful the endeavouring to persuade people to vote in a particular way and, on one view of it, that method of voting, what has become colloquially known as Langer voting, was not unlawful at the time, although persuading people to vote that way may have been.  In that sense the issue is different.  However, all the Justices in Langer expressed the view at some point in their reasoning that the provisions in relation to voting in the Constitution were flexible and any method of preferential voting which resulted in the exercise of a choice was sufficient. One did not have to have any particular method of preferential voting. That is the issue in this case and we would ultimately be submitting for that reason it was decided in Langer.

Your Honour, we will be submitting ultimately that the issue is a very short one.  It can be determined in about the length of argument we are having this morning and can be determined finally on that basis.  We are anxious that it be determined ‑ ‑ ‑

HER HONOUR:   Well, if it can be determined on that basis, it would seem to me it can as easily be determined elsewhere as here.  This is, after all, the final appellate court.  You are asking us to determine a matter in which we are not, presumably – one would infer we are not going to get the benefit of legal assistance from the plaintiff.  The Court has a busy workload.  Its special leave list has grown exponentially.  The number of litigants in person has grown exponentially.  Why, if it is as simple as all that – I mean, why should the Court’s time be taken up on it?  Why should my time be taken up, even in hearing an application for a jury?  I mean, Mr Solicitor, you bear some responsibility, or at least you owe a duty to this Court and it is not, it seems to me, to burden it with work when other matters are pressing.

MR BENNETT:   Your Honour, the last thing we would seek to do is to burden it.  The jury application can be determined in five minutes, your Honour.

HER HONOUR:   Well, it can be.  I have to hear Mr Bryant on that.  If it takes more than five minutes, we will see.  If it takes more than five minutes, I would regard that as a good indication as to why it should be remitted – the matter should be remitted.

MR BENNETT:   Your Honour, may I just answer you on this previous question, and that is this, that the reason why ultimately it would, we would respectfully submit, be more efficient for it to be determined in this Court is that, having said it can be determined quickly, there may then be an appeal as of right to a Full Court, which would probably in the circumstances consist of ‑ ‑ ‑

HER HONOUR:   Well, which Full Court?

MR BENNETT:   Of this Court.

HER HONOUR:   What will be determined?

MR BENNETT: Section 34 of the Judiciary Act.

HER HONOUR:   What will be determined quickly?

MR BENNETT:   Your Honour, I am just putting forward the appellate processes that are available under the two alternatives.

HER HONOUR:   I see.  Yes, I see what you mean.  If I remit, you think there will be an appeal.

MR BENNETT:   Well, your Honour, if your Honour does not, there may be.  Can I just put the appellate processes.  If your Honour remits, there is an appeal to the Full Federal ‑ ‑ ‑

HER HONOUR:   Why?  I mean, I just do not understand.  Nobody has taken a single step to set down the demurrer, which seems to me would be dealt with by the Full Federal Court if it were remitted.

MR BENNETT:   Your Honour, we had perhaps, with unjustifiable optimism, taken the view that the matter must have been abandoned and took no steps.  We can be criticised for that.  I accept that.  Steps could have been taken.  What I can add, your Honour, is if it goes ‑ ‑ ‑

HER HONOUR:   I mean, look at it from the point of view of this Court.

MR BENNETT:   Yes.

HER HONOUR:   The matter would go on demurrer to the Full Federal Court and the question whether special leave should or should not then be granted would be dealt with by two members of this Court.

MR BENNETT:   Yes. Well, the demurrer would be interlocutory, so it would be under section 34(2) and, therefore, would require leave. On the other hand, if the matter were to be remitted, there would be an appeal as of right to the Full Federal Court followed by ‑ ‑ ‑

HER HONOUR:   Why?  I do not understand that.  Why would it not go on demurrer to the Full Federal Court straightaway?

MR BENNETT:   Yes.  If that occurred, it would short circuit the process.  We had in mind that there would be a hearing in which ‑ ‑ ‑

HER HONOUR:   Yes, and at least at that stage one would have the benefit of somebody’s consideration.  I mean, I have found it impossible today to get a direct answer from Mr Bryant as to in what respect he says the law infringes his right to direct choice.  At least it might be clarified if somebody with more time could elicit that from him.

MR BENNETT:   Facing the risk that one always faces when attempts to do this, may I just summarise what I understand the argument to be in one sentence, which is that if a person ‑ ‑ ‑

HER HONOUR:   But he does not say you cannot do that.  I cannot get a direct answer from him.  I mean, you may or may not be correct, but somebody really ought to find it out.

MR BENNETT:   Well, perhaps I might say, your Honour, and see if he disagrees, as I understand his argument it is that the effect of section 180(2) is to require an elector who has no preference between a number of candidates other than the first candidate to choose and express a preference between them and that that is ‑ ‑ ‑

HER HONOUR:   Well, I asked him that and he would not assent to it.

MR BENNETT:   Well, I thought he did in the end, your Honour.

MR BRYANT:   I thought I did, your Honour.

HER HONOUR:   All right.  Well, that is your argument, is it?  It is as simple as that ‑ ‑ ‑

MR BENNETT:   As I understand it.

HER HONOUR:   ‑ ‑ ‑ that you have to vote for all candidates?

MR BRYANT:   Yes, you are forced to vote for all candidates.

MR BENNETT:   Forced to express a preference for all candidates.

HER HONOUR:   Yes.

MR BRYANT:   Express a preference, yes.

MR BENNETT:   Yes.  One can vote for all candidates under Langer voting but give them an equal ‑ ‑ ‑

HER HONOUR:   Yes.

MR BENNETT:   Yes, it is being forced to express a preference for candidates other than the first which – he says it is unconstitutional because it is contrary to the constitutional requirement of “chosen by the electors”.  That is the argument, your Honour.  It is a very short argument.  It can be dealt with quickly and we really take the view it is a question of which method would result in it being determined more expeditiously and most cheaply and, your Honour, it is ‑ ‑ ‑

HER HONOUR:   To whom?

MR BENNETT:   ‑ ‑ ‑ in this Court and it is very short and, as I say, your Honour, with respect, we would submit, could deal with the whole argument in the time we have taken this morning over an interlocutory application.

HER HONOUR:   Well, I do not think it is within my power to do that today.

MR BENNETT:   I am not suggesting that, your Honour, unless your Honour feels it is appropriate, but the matter could be set down and dealt with very expeditiously.  It is a matter for your Honour and it is a question purely of the comparative costs and expedition in doing ‑ ‑ ‑

HER HONOUR:    Cost to whom, to what institution?

MR BENNETT:   To the two institutions and to the litigant.

HER HONOUR:   Well, it does not seem that there is much cost to Mr Bryant.

MR BENNETT:   No, your Honour.  There may or may not be ultimate ‑ ‑ ‑

HER HONOUR:   The Commonwealth has got long pockets.  There is not a lot of cost to the Commonwealth in sending you wherever it wishes and I am sure you would like to be in Sydney from time to time.

MR BENNETT:   Well, your Honour, my learned junior is ‑ ‑ ‑

HER HONOUR:   She would like to be in Canberra.

MR BENNETT:   Well, more of what your Honour was saying about cost.  No, your Honour, it is not a case which is going to be inordinately expensive either way.  There is no doubt in that.  It is simply a question of the most expeditious way of dealing with it, bearing in mind there is a prospect of a special leave application at some stage even if the matter is remitted and there is always the – well, there is always a prospect of interlocutory appeals and we submit it is just quicker and faster to get the final matter determined before a Justice of this Court ‑ ‑ ‑

HER HONOUR:   Well, at some stage the government which you represent is going to have to think seriously about the burden placed on this Court by unrepresented litigants.  It is an enormous burden which is increasing daily.  It is a matter about which your government should be aware and, I would have thought, would be thinking of some steps to relieve the position.  One, and at the moment, the only point of relief with respect to litigants in – for this Court with respect to litigants in person is to remit the matters to courts which have greater personnel and greater resources.  Now, as you know, this is the smallest court in the land and has amongst the least resources and at some stage, I think, Mr Solicitor, somebody has got to come to terms with that.

MR BENNETT:   Yes.  Well, your Honour, I will ensure those remarks are passed on.  Your Honour, as far as this matter is concerned, we would ask that in any event your Honour dismiss the summons for the jury.

HER HONOUR:   I am tempted otherwise.

MR BENNETT:   Yes.  Well, your Honour, it is a matter for your Honour.  If your Honour wishes to – if your Honour considers it appropriate, it is a matter for your Honour to remit it.  We submit that it is appropriate for this Court to deal with it quickly and dispose of it.  If the Court pleases.

HER HONOUR:   Yes, thank you.  Well, would I be hearing about some – assuming I were minded not to remit it, would I be hearing of some offer to get the matter in order rather than leave it languishing for interlocutory applications, including applications for a jury?

MR BENNETT:   Well, your Honour, we would ‑ ‑ ‑

HER HONOUR:   The government has done – you know, you have done nothing to have the matter set down.

MR BENNETT:   We have not, your Honour.

HER HONOUR:   And the result of which is I have to hear an application for a jury.

MR BENNETT:   Yes.  Your Honour, the reason we have done nothing I have explained.

HER HONOUR:   Yes.

MR BENNETT:   That reason is no longer operative and we will do whatever needs to be done, if the matter stays in this Court, to have it determined quickly.

HER HONOUR:   Thank you.  Well, Mr Bryant, you have some support for the matter staying in this Court.  What do you say about your jury application?

MR BRYANT:   I would like to comment on what was ‑ ‑ ‑

HER HONOUR:   Well, I do not know that you need to, do you?

MR BRYANT:   Well, in relation to cost, your Honour, I think that this issue has an enormous cost to the community and to our democracy and not

the personal money cost to myself or the Commonwealth should be considered in that relationship.

HER HONOUR:   What do you say about your application for a jury?

MR BRYANT:   Well, your Honour, the Judiciary Act provides for a jury to hear matters in the High Court and I avail myself of the law, an entitlement to a jury, and I know that – I am not sure that it has ever been used in the High Court.  This is a matter of concern to all Australians and I think it is a matter that the Australian community should make a decision on via a jury.

HER HONOUR:   Anything else?

MR BRYANT:   There is an enormous amount of precedents in relation to trial by jury, going right back to Magna Carta, entitlement to trial by jury.  This is an important constitutional matter and I think it demands a jury to get it out of the rush that your Honour has indicated the High Court is in.  We do not need ‑ ‑ ‑

HER HONOUR:   Well, it will not assist it in terms of expedition.

MR BRYANT:   Yes, your Honour, I understand that, but providing this matter was resolved before the next federal general election, that would be time enough.  Thank you, your Honour.

HER HONOUR:   Yes.  Well, Mr Solicitor, why should not one accede to the request for a jury?

MR BENNETT:   Because, your Honour, there is no issue of fact – not shown to be any issue of fact and all the jury would do under section 77B is trial – that uses the phrase “of the suit or of an issue of fact”, but clearly in relation to the suit, it is only referring to issues of fact in the suit.

HER HONOUR:   Well, is it?

MR BENNETT:   In my submission, yes, your Honour.

HER HONOUR:   Are you sure?

MR BENNETT:   Yes, your Honour.

HER HONOUR:   In terms it does not say that.  It says:

The High Court may, in any suit in which the ends of justice appear ‑ ‑ ‑

MR BENNETT:  

to render it expedient to do so ‑ ‑ ‑

HER HONOUR:   Yes.  Well, Mr Bryant says trial by jury is a hallowed institution going back to Magna Carta, a matter of great importance, he says, to suit.

MR BENNETT:   It is, your Honour, but the jury would only determine issues of fact within the suit.  The issues of importance that he wishes to agitate would not be determined by the jury.  There would be nothing for the jury to determine because we would admit ‑ ‑ ‑

HER HONOUR:   Are you sure it does not allow for the determination of constitutional issues?

MR BENNETT:   I would submit, your Honour, the ‑ ‑ ‑

HER HONOUR:   One could not direct the jury to have a proper trial?

MR BENNETT:   No, your Honour, one could not.  That would be appellable, in my submission, your Honour.

HER HONOUR:   What, the jury’s verdict would be?

MR BENNETT:   No, the direction would be, your Honour. The jury would have been misdirected because the jury would have been asked to perform something outside its function. The Constitution, in section 80, which is, of course, confined to criminal matters, is the only reference to a jury and this section both incorporate the normal common law as to the role and purpose of a jury.

HER HONOUR:   It is not abundantly clear in terms though, is it?

MR BENNETT:   Your Honour, I submit it is.

HER HONOUR:   Yes.  Anything else?

MR BENNETT:   No, your Honour, and I ask for an order for costs in the summons.

HER HONOUR:   Which summons?

MR BENNETT:   The summons for amendment and the jury.  It is one summons, your Honour.

HER HONOUR:   No, there are two summonses.

MR BENNETT:   I am sorry, I thought I had one.

HER HONOUR:   I have already made orders on one by consent.

MR BENNETT:   I have a summons, your Honour, of the – I see, yes.  Well, your Honour, in both summonses I seek an order for costs ‑ ‑ ‑

HER HONOUR:   Yes, thank you.  Anything in reply, Mr Bryant?

MR BRYANT:   Yes, your Honour, if I may.  There are facts to be determined.  Is it a fact – is it a fact ‑ ‑ ‑

HER HONOUR:   If the matter proceeds by way of demurrer, there may not be.  Do you understand what a demurrer is?

MR BRYANT:   I do not know.  I do not, your Honour.

HER HONOUR:   A demurrer is an assertion that there is a pure question of law to be determined, a discrete and pure question of law to be determined as a pleading point before there would be any hearing ‑ ‑ ‑

MR BRYANT:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ of any other aspect of the case.

MR BRYANT: Your Honour, I believe the facts in the case are that section 24 of the Constitution clearly states certain things ‑ that is a fact ‑ and that the ‑ ‑ ‑

HER HONOUR:   Well, I do not think we need a jury to determine that.

MR BRYANT: And section 240(2) of the Commonwealth Electoral Act removes those rights, and that is a fact, and we have had two federal elections take place under this particular Electoral Act amendment, and that is a fact, and those facts need to be determined.

HER HONOUR: I do not think the elections are in issue, are they? Are the other matters not questions of law? The meaning of operation of section 240(2) is a question of law, is it not?

MR BRYANT:   Involving facts, yes.

HER HONOUR:   Involving what facts?

MR BRYANT: The fact that it is contrary to the Constitution.

HER HONOUR: Well, I was going to put to you that the question whether it is permitted by the Constitution or is forbidden by the Constitution is also a question of law.

MR BRYANT:   In any case, your Honour, the right to a jury is not determined by whether there is a fact to be considered.

HER HONOUR:   And why do you say that?

MR BRYANT:   Well, it is a right handed down from Magna Carta.  It is a right that is set out ‑ ‑ ‑

HER HONOUR: Well, your right in the Constitution with respect to jury trial is much more limited, is it not?

MR BRYANT:   Well, your Honour, a problem of not having sufficient notice about this hearing left me ‑ ‑ ‑

HER HONOUR:   No, no, come on.  Mr Bryant – Mr Bryant ‑ ‑ ‑

MR BRYANT:   ‑ ‑ ‑ left me devoid – I am sorry, your Honour.

HER HONOUR:   ‑ ‑ ‑ you have had plenty of notice about your application for a jury because you made the application.

MR BRYANT:   Yes, I made the application I think last Wednesday and I was notified about this directions hearing with a little confusion, I think, 13 days before today.

HER HONOUR:   Yes.  Well, you made the application and one expects you to know what you are applying for and to be ‑ ‑ ‑

MR BRYANT:   Well, I am – I do know what I am applying for.

HER HONOUR:   Yes, and to know the relevant law.

MR BRYANT:   I am applying for a right to trial by jury ‑ ‑ ‑

HER HONOUR:   Yes, I understand.

MR BRYANT:   ‑ ‑ ‑ on this constitutional matter, which is of importance to every Australian – every elector, your Honour, and it has caused – in

1988 it caused 2 million votes – voters of 2 million votes not to be represented in the Parliament.  It is that important, your Honour.

HER HONOUR:   Yes, thank you.  Did you wish to say anything about costs?  The Solicitor has ‑ ‑ ‑

MR BRYANT:   Yes, your Honour, the costs should be in the cause.

HER HONOUR:   Yes, thank you.  Well, I have already made orders for the amendment of the ‑ ‑ ‑

MR BRYANT:   Your Honour, if I may, juries determine all issues of fact and law.

HER HONOUR:   Yes, thank you.  I have already made orders on your summons to amend.

MR BRYANT:   Yes, your Honour.

HER HONOUR:   In respect of your application for a trial by jury, I am satisfied that it would not be expedient in the interests of justice to accede to that application and the summons in that regard is dismissed.  Costs of both summonses will be costs in the cause.  I direct the defendant, through its legal representative, take steps to have the matter listed and to prepare whatever demurrer books are necessary. 

That will at least spare you the expense of getting the matter ready for a hearing, Mr Bryant.  Do you need a timetable for that, Mr Solicitor?

MR BENNETT:   I do not think so at this stage, your Honour.  We will act expeditiously.

HER HONOUR:   Yes, thank you.  Call the next application.

AT 10.18 AM THE MATTER WAS CONCLUDED