Day v Australian Electoral Officer for the State of South Australia & Anor

[2016] HCATrans 73

[2016] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S77 of 2016

B e t w e e n -

ROBERT DAY

Plaintiff

and

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF SOUTH AUSTRALIA

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON THURSDAY, 24 MARCH 2016, AT 8.02 AM

Copyright in the High Court of Australia

MR P.E. KING:   If your Honour pleases, I appear with MR F.C. BROHIER, of the South Australian Bar, for the plaintiff.  (instructed by McKells)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MR C.L. LENEHAN, for the Commonwealth, the second defendant.  The first defendant has filed a submitting appearance in the proceeding, save as to costs.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr King.

MR KING:   Your Honour, this is the return date on a summons in an application for an order to show cause that declaration should be made as to the invalidity of the Commonwealth Electoral Amendment Act 2016, Part 1, and three items in Part 3 of Schedule 1 of that Act, and also a writ of mandamus directed to the first defendant in respect of proceeding according to law reflecting the Court’s observations in Rowe’s Case on that point.

We have served some short minutes of orders as to our proposal in accordance with the Court Rules, your Honour, which have been filed and served this morning.  We would argue for orders 1 through to 7 on three bases:  firstly, that the grounds are of short compass and involve matters of principle; secondly, both sides have asked for an expeditious hearing but the importance of ensuring – but also in the context of serving a section 78B notice on the States, the States being obviously very affected by any change in the Senate voting; thirdly, the saving of Court time and costs and public expense, and we support the observations of Mr Rogers in his affidavit; fourthly, the public importance of the issues, and in Mr Mackerras’ affidavit which was filed in the Principal Registry in Canberra, your Honour, yesterday – I hope it has reached your Honour ‑ ‑ ‑

HIS HONOUR:   Yes.

MR KING:   ‑ ‑ ‑ in paragraphs 25, 29 and 35 he expresses in light of his very substantial experience and recognition as a leading Australian psephologist that the matter raises significant questions of public interest and concern.  Finally, your Honour, we say that the material provided by the defendants appears to acknowledge with their own program of proceeding by way of written submissions that there is one or more of the grounds which is arguable.  So, in our respectful submission, that is the appropriate way forward.  That is not to say, of course, your Honour, that we for one minute concede any of the propositions put by the defendants.  We say they are wrong ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that, Mr King.  Can you tell me, it seems to me that the affidavits that have been filed, Mr Stewart’s and Mr Mackerras’, for the most part are either inadmissible or unnecessary for the purpose of arguing the contentions raised on the grounds of the application.  The question really is what, if any, facts are necessary for your purposes?

MR KING:   We have identified the questions of law on the bottom of our submission relating to the summons, as required by the Rules.  As to questions of fact, we propose to adopt the Commonwealth’s submission that the parties articulate in their written submissions what those facts are and reach agreement upon them.  That was the way we proposed to address that.

HIS HONOUR:   Well, what do you say are the questions of fact that you would need to establish?

MR KING:   In relation to the first question ‑ ‑ ‑

HIS HONOUR:   I do not need to ask you to necessarily express them with precision now, but I want to know what kinds of facts you think you would need to establish over and above an examination of the impugned provisions themselves and perhaps examples of the way in which they operate.

MR KING:   Yes, I think that would be an efficient way forward, your Honour.

HIS HONOUR:   The first point I just put to you is an examination of the law and then examples of how the law may operate, but are there any underlying questions of fact that would really have to be agreed or established?

MR KING:   Only that the – as indicated both by Mr Mackerras and Mr Stewart in, for example, if your Honour goes to Mr Mackerras’ affidavit, paragraph 17, these figures are taken from the Australian Electoral Commission records and we think would hardly be contradictory.

HIS HONOUR:   Yes.

MR KING:   Apart from the examples given by Mr Stewart, which I think fall within a category to which your Honour referred, they would be the principal matters.

HIS HONOUR:   Yes.  I would think it would not be too difficult, to the extent that they are relevant, for the parties to – or even subject to relevance – for the parties to agree on statistical matters of public record and perhaps worked examples which illustrate the operation of the quota and exhaustion process.

MR KING:   Thank you, your Honour.  Yes, we can do that.

HIS HONOUR:   So it just seems to me that submissions specifying the facts you need to establish may not be necessary.  It may be a matter rather of requiring the parties to endeavour to agree such matters of fact.  It may well be there may be very few.  There may be, for example, a history in the sense of successive legislative provisions but that is just a history of law, and maybe there can be one or two worked examples to help the Court understand better the operation and the point that you are seeking to make.  Of course, examples can always be put forward by way of argument if they can be demonstrated to logically flow from the wording of the various provisions of the Electoral Act.

MR KING:   Yes, we respectfully adopt that, your Honour.  We have used that mode of expression in our proposed short minutes because that was the mode the Commonwealth used in their submission and we wish to be as conciliatory as possible.

HIS HONOUR:   Yes.  I see no place at the moment, unless you can persuade me that there is, for affidavits by Mr Mackerras or Mr Stewart in the determination of this application.

MR KING:   We would respectfully submit, your Honour, that on the question of the second limb the alternative way of putting our arguments which is ground 9, paragraph 9 of the grounds which is really the representative principle about which your Honour has written, that requires a consideration of broader matters, perhaps discursive matters, and the Court may find of assistance the expert testimony of both Mr Mackerras who, as I say, has been awarded the Order of Australia ‑ ‑ ‑

HIS HONOUR:   Yes, but that is not a qualification for expert opinion, neither is the expression of strong feelings and conclusionary statements.  That affidavit is unlikely to come anywhere near this application.  It is something you should consider when you are determining what you really need to show by way of a factual matter as necessary to support your application.

MR KING:   We certainly propose to consult closely with our friends and abide by your Honour’s observation.

HIS HONOUR:   Now, I want to hear from the Solicitor of course generally in relation to the directions that should be made and in relation to the timing but, ultimately, you are suggesting that the whole application be

referred to a Full Court under the Rules rather than by way of special case and it may be that that is convenient if it is able to be done without any factual contest.  So the question may be then – if that can be achieved, the question will be then one of timing and in part we are driven by, as it were, the logistical requirements facing the Electoral Office in responding to any possible invalidating decision.

MR KING:   We do not disagree with that, your Honour, although when one looks at the affidavit of Mr Rogers, the position is not quite as dire as my friends would suggest in their proposed short minutes.  Rather, the practical considerations to which he refers, particularly in paragraphs 7 through to 13 of his affidavit, suggest that most of the matters ‑ for example, in paragraph 7 ‑ are ongoing and would be unaffected by any decision the Court makes.

So long as a decision is reached – if one looks at paragraph 12 ‑ some time, or promptly after Anzac Day which is the 25th, and latest by 9 June which is the date referred to in his paragraph 10 when nominations will be scheduled to close – and printing of ballot papers, of course, cannot occur before then – so we see that so long as a prompt approach is taken it is not a matter of life and death where it needs to be dealt with tomorrow.  We say that the orderly process that we have provided for in our short minutes is the most appropriate one and would lead to the best outcome in the interests of justice.

HIS HONOUR:   Yes, all right.  Is there anything further you want to say at this stage?

MR KING:   No, your Honour.

HIS HONOUR:   All right, thank you.  Mr Solicitor.

MR GLEESON:   Thank you, your Honour.  As indicated in our submissions, we first of all agree the matter deserves expedition and to that extent rely upon the affidavit of Mr Rogers.  The position, as indicated in the affidavit, is that there is a considerable interest in terms of the efficient conduct of the election if this matter can be heard and determined as soon as possible.  We have raised in our submissions the question whether any or all of the grounds proposed by Mr King pass the standard of arguability and it is obviously a question for your Honour whether and how to deal with that.

I did just want to point out, as we emphasise in paragraph 5, that Mr Day’s application has a bifurcated character.  Three of his grounds, grounds 1, 2 and 4, logically attack not just the amending Act passed last week but they attack the system of elections that has been in force in the Senate since 1984.

HIS HONOUR:   I understand that.

MR GLEESON:   They have the rather startling proposition that Senator Day is, in fact, not Senator Day, he is Mr Day.  He has been sitting invalidly in the Senate for the last three years.  No legislation has validly been passed by the Senate.  Now, why – I will call him Senator Day – would leave it until, as it were, five minutes to midnight before this election to bring before this Court three arguments which impugn his own position as a Senator has been left totally unexplained. 

Now, that is quite an extraordinary aspect of those three grounds and we would at least urge your Honour to consider whether those three grounds raised in that quite extraordinary manner pass the standard of arguability.  Indeed, the first of them is probably hopeless on its face.  The first of them says this is not a uniform method of electing the Senate because voters are given the choice to do it above the line or below the line, a uniform choice across the country. 

Now, that ground probably, your Honour, could be ruled unarguable in fairly short shrift.  So grounds 1, 2 and 4, your Honour, we would submit require that very, very, very careful attention as to whether there is anything of merit or even arguability to refer to the Full Court.  Grounds 3 and 5 at least have the superficial merit that they are a direct response to the legislation passed last week and, in that sense, Senator Day cannot be criticised for only raising them this week.  They do, however, have very, very considerable weakness that we have identified in our summary note.

So, your Honour, we are sounding, as it were, a note of caution that the matter does not have the apparent strength on its face to automatically warrant referral to the Full Court.  We are, of course, mindful that reaching a final dispositive resolution of this matter is of critical value in its own right and that might determine which of the courses your Honour takes, and we have respectfully suggested three courses.  One is, as per Lane v Morrison, simply to strike out or not allow to go forward those of Mr King’s arguments which are obviously hopeless.  The second course would be to have the matter determined before a single Justice of the Court which may allow it to come on sooner but could possibly lead to appeals.  It is what the Chief Justice did in McKenzie in 1984 ‑ ‑ ‑

HIS HONOUR:   Well, it was only a few days before the election in that case.

MR GLEESON:   It was only a few days.  We point that out.  That was probably of necessity that had to be done.

HIS HONOUR:   Yes.

MR GLEESON:   And, obviously, that is one disadvantage of that course of action that an enthusiastic litigant might not treat a single Judge’s decision as binding so then we have only pushed back the time.  The third is ‑ ‑ ‑

HIS HONOUR:   The same is true, is it not, of – well, it is true of any strike out – any summary disposition as well, is it not?

MR GLEESON:   Well, it is true in principle.  However, as was said to your Honour in Lane v Morrison, there are degrees of arguability ‑ ‑ ‑

HIS HONOUR:   Of course.

MR GLEESON:   ‑ ‑ ‑ and sometimes one can see pretty clearly that – and I will not go back to the parallel universes that were put before your Honour in Lane v Morrison but your Honour did rule that arguments based on parallel universes really were truly hopeless ‑ ‑ ‑

HIS HONOUR:   I still remember them, Mr Solicitor.

MR GLEESON:   ‑ ‑ ‑ and some of Mr King’s arguments are of that character.  So, yes, your Honour, I accept that in respect of that.  The alternative is that the appropriate questions go to a Full Court.  We are just sounding that note of caution that ordinarily that is reserved for clearly arguable points.  It is a significant imposition upon the Court and we know the difficulty of finding available time before what we would regard as the critical date, which is 10 or 11 May, potentially earlier than that, Anzac Day, as per the affidavit.

So we are in the Court’s hands as to what might be available as to an available date and an available means of hearing it, whether at first instance or on appeal.  We had proposed the somewhat brutal timetable in paragraph 8 of our submissions, brutal but appropriate in the sense that a person such as Senator Day who seeks the extraordinary relief of a writ of mandamus to compel, in effect, the Electoral Commissioner to behave contrary to the Commonwealth statute book requires the person seeking it, that is, Mr Day and his legal team, to move with the highest degree of expedition and requires the Commonwealth to respond appropriately.

Now, Mr King and his team have obviously put some thought into these arguments and we do not see why his written submissions cannot be available as early as possible next week and, if so, the Commonwealth would respond within a very short period thereafter and the Court would then be able to see by next Friday, 1 April, what should happen to the matter. 

So, your Honour, while Mr King’s timetable in many circumstances would be an appropriate one, we are urging the Court to consider even greater expedition and urging the Court to consider whether any or all of his points survive an arguability standard.

HIS HONOUR:   Well, one possibility might be a hearing by a Full Court at the beginning of the May sittings, that is to say, perhaps 2 and 3 May.  If one were to – from my understanding of Mr Rogers’ affidavit, subject of course to how long it takes to either make orders or deliver a judgment or both, that date is within the umbrella of – I know he is talking about public education starting shortly after Anzac Day, but that is within the sort of umbrella of feasibility from his point of view.

MR GLEESON:   I think that would be accurate, your Honour.

HIS HONOUR:   Yes.  If that were so, Mr Solicitor, the only point of, as it were, a super‑accelerated filing of submissions would be to allow for the possibility of a strike out of some of the grounds, would it not?

MR GLEESON:   That is also correct, your Honour.

HIS HONOUR:   Yes.  That is not to say that a program for expeditious filing of submissions should not be set down because there needs to be a bit of a safety margin in case things go wrong, as they sometimes do, or a dispute arises of some kind.

MR GLEESON:   Yes, and we certainly want to emphasise that those affidavits that your Honour received this morning are inadmissible – that is the most polite thing that could be said about them – they are inadmissible on a whole series of grounds and they should not form part of the material for the hearing and the only factual material, if any, is of the limited category which your Honour identified and probably really is by way of reference to legislative history and worked examples which are part of submissions.

HIS HONOUR:   Well, that is right, it may well be that there can be conveniently agreed worked examples so that we know in advance that there is not going to be any argument about numbers in front of the Court, as least so far as particular examples are concerned.

MR GLEESON:   The underlying mathematics of Mr Stewart’s affidavit is just straightforward and can be written down on a piece of paper.  Beyond that, he is making all sorts of assumptions and assertions about how votes

might be distributed between parties and independents and that material certainly will not be agreed and it is just irrelevant to the legal issues in the case.  As your Honour noted, the flavour of strong feelings which comes through the opinions of Mr Stewart and Mr Mackerras is really very distracting from the legal issues.

Of course, one of the major problems with Mackerras and Stewart is that they underline the first point I started with, your Honour.  These gentlemen hold a political opinion that the Senate voting system since 1984 has been the wrong one.  That is what they are there for.  They are there to prove that Senator Day is not Senator Day. 

Now, we would be certainly urging Mr King when he reflects on these matters over Easter to consider whether it really is the contention of his client that he is invalidly sitting as a Senator and that every act he has done in the last three years has not been, at best, a solemn farce and, at worst, a participation in a nullity.

It is really quite an extraordinary proposition for him to put and we are really urging a great deal of thought to go into this by Senator Day and Mr King.  In a sense, Senator Day’s legitimate arguments, if they are that, in respect to the amending Bill, have been hijacked by the opinions of two people who do not like the Senate voting system since 1984.

HIS HONOUR:   Well, those observations contain a lot of assumptions, I would think, about the implications of any finding concerning those - characterised as sweeping grounds.  I do not think we need to get into what I would call apocalyptic scenarios at this point, but ‑ ‑ ‑

MR GLEESON:   Well, your Honour, I do not want to be too apocalyptic, it is only just before Easter, but I do observe that in McKenzie v Commonwealth when Chief Justice Gibbs heard that challenge in 1984, the Senate voting paper he was looking at had above the line and below the line.

HIS HONOUR:   Yes, I know that.  I know the point you are making.

MR GLEESON:   He rejected that challenge.  So Mr King is squarely seeking to challenge a decision that stood on the Court for 30 years and it has some rather dramatic consequences.

HIS HONOUR:   Well, yes, the consequences would be another matter of argument, I suppose.  All right, I think that I will hear from Mr King now in relation to the timetable that might be necessary to get this matter ready for hearing at the beginning of May.

MR KING:   Your Honour, we respectfully adopt your Honour’s proposal for 2 and 3 May.  As to the program, that which we proposed in our detailed short minutes means the matter will be completely ready and written arguments available on both sides by 15 April, that is, some 14 days prior to the appointed hearing date, which will then give the parties and the Court that opportunity to reflect to which your Honour referred and that would be more appropriate than rushing matters on over the Easter period with no sound purpose or result.

There is only one other thing I need to say, your Honour, and that is I simply dispute my friend’s observation that Senator Day is not Senator Day.  He should look at section 355 of the Act which is a complete answer to that proposition, but I do not take it any further, your Honour, because as your Honour rightly said, his observations contain many assumptions which are in dispute.

HIS HONOUR:   But do you accept that you are challenging the validity of a process of voting in Senate elections which has been in place for many years, long before the current amendment?

MR KING:   No, your Honour, take the first ground; this is the first occasion since Federation that the Commonwealth Electoral Act has provided two separate and distinct methods of voting for the Senate and the question is does this contravene section 9 of the Constitution. Now, if your Honour looks at paragraph 7 of Schedule B of my friend’s written submissions, he agrees with our interpretation of section 9, namely, that section 9 contemplates one method of voting or choosing a senator is uniform throughout the States. But what he says is, well, the new ballot paper form E, which is in that form for the first time since Federation, does provide for only one method because it is really an option above and below the line, yet the Act says quite differently.

If your Honour goes to section 4 of the new Act that was passed on last Friday, it says that what used to be called the ballot line, that is, until this Act, now it is called the dividing line, and it says “the line on a ballot paper that separates the voting method described in subsection 239(1) from the voting method described in subsection 239(2)”.  So that part of the Act is squarely against my friend’s own submission in paragraph 7.  So we say, your Honour, that this is not – and indeed in relation to the second issue, which I have brought ‑ ‑ ‑

HIS HONOUR:   That might be said to be a case of a statutory tail waving a constitutional dog.

MR KING:   Well, if one adopts a position of complete and strict legalism, your Honour, on my friend’s approach two or four or six different methods of voting can be described as options and contained on a ballot paper.

HIS HONOUR:   What I am suggesting to you, Mr King ‑ you will need to reflect upon this, I suppose – that the use of the word “method” in the definition of “dividing line” does not necessarily tell you that the means adopted constitute something that is not a uniform method for the purposes of the Constitution.

MR KING:   …..

HIS HONOUR:   I do not know that you would.

MR KING:   We respectfully note that the founding fathers used the word “method” too.

HIS HONOUR:   Yes.

MR KING: So that just demonstrates that what my friend has put to your Honour about this being – that Senator Day is not Senator Day is both wrong as a matter of practicality, having regard to Part 22 of the Act dealing with disputed returns. It is also in error as a matter of law having regard to the Constitution under which this Act purports to have been made. That will be our case, of course, and we say that the word “method” in section 9 is similar in meaning to the word “method” in the Act passed by the Parliament and that my friend’s word “option” used in his submissions is simply in error.

So that demonstrates – and each of the other matters are all new as well, your Honour.  There has not been since Federation any provision of the Commonwealth Electoral Act that has required electors for the Senate to vote for parties, not individuals ‑ ‑ ‑

HIS HONOUR:   Yes, all right.  Mr King, I was really asking whether you accepted that the generality of your argument applied to the voting process prior to the 2016 amendments.

MR KING:   I am sorry, your Honour.  Well, the short answer is no.

HIS HONOUR:   I see, all right.  Do you accept that so far as factual matters are concerned, and to the extent that it does involve matters of fact, questions of legislative history and worked examples are probably as far as you will need to go?

MR KING:   Yes, we would be happy to adopt that discipline, your Honour.

HIS HONOUR:   The rest of the arguments about practical operation and so forth would seem to me to be a matter of submission.

MR KING:   Yes, I do not think we dispute that, your Honour.  It may be – this is obviously a matter for your Honour – but it may be helpful for the learned Judges to have regard to some of the examples that Mr Mackerras and Mr Stewart give.  Mr Stewart is obviously a very ‑ ‑ ‑

HIS HONOUR:   Well, if these are examples simply based upon the mathematics that flow from the words of the legislation, they are examples which can be incorporated in submissions, I would have thought.

MR KING:   We would accept that.

HIS HONOUR:   It may be that they can be given some factual backing by reference to the statistical tables which are matters of public record to which I think we have already referred in your opening remarks.

MR KING:   Yes.

HIS HONOUR:   Yes.

MR KING:   That is right, your Honour.  I mean, at the edges, for example, paragraph 17 of Mr Stewart’s affidavit, he explains how section 273(8) works but again, we would respectfully adopt your Honour’s point.

HIS HONOUR:   Yes, all right.  Take a seat for a moment, Mr King, and I will work out some directions.

The directions I am proposing would have written submissions – I will set out the orders in a moment, but just to explain where I am going – from the plaintiff by 5 April, notice of constitutional matters by 31 March, and then the defendants’ submissions by 12 April, interveners by the 19th, application book by the 19th and reply by the 26th.  What I would propose – and also I will require the parties to endeavour to agree any relevant legislative history, statistical tables from public records and worked examples for inclusion in the application book.  In a sense those things can be part of submissions if it is legislative history, for example, or public record, but it seems to me that it is preferable to try to have common ground on those matters and I would want to bring the matter back for directions on 15 April, when I will be in Canberra, so that we can determine that the matter is fit for referral to the Full Court.  I am working on the hypothesis at the moment of the dates I mentioned at the beginning of the May sittings.

So I will now make orders reflecting that plan:

1.On or before 31 March 2016, the plaintiff is to file and serve notices of a constitutional matter.

2.On or before 5 April 2016, the plaintiff is to file and serve written submissions limited to 15 pages in support of the application.

3.On or before 12 April 2016, the defendant is to file and serve written submissions limited to 15 pages.

4.Any submissions of interveners to be filed by 19 April 2016.

5.An application book to be filed by 19 April 2016.

6.The plaintiff to file reply submissions on or before 26 April 2016.

7.The parties to endeavour to agree any relevant legislative history, statistical tables from public records and worked examples for inclusion in the application book.

8.The matter be listed on 15 April 2016 at 10 o’clock Australian Eastern Standard Time for directions as to referral to a Full Court.

9.Costs today reserved.

Now, Mr King, is there anything arising out of those directions, or any difficulty you have with those?

MR KING:   No, your Honour.

HIS HONOUR:   Mr Solicitor?

MR GLEESON:   No, your Honour.

HIS HONOUR:   All right.  I will make directions in those terms.  Thank you.

Court will now adjourn.

AT 8.45 AM THE MATTER WAS ADJOURNED