Ditchburn v Ausn Electoral Officer for Qld

[1999] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Brisbane  No B47 of 1998

B e t w e e n -

DONALD KENNETH DITCHBURN

Petitioner

and

AUSTRALIAN ELECTORAL OFFICER FOR QUEENSLAND

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR S.J. GAGELER:   Your Honour, I appear for the respondent in that matter, the Australian Electoral Officer for Queensland.  I also appear for the Australian Electoral Commission, the applicant on a summons dated 22 March 1999.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Ditchburn, you appear on your own behalf, do you not?

MR D.K. DITCHBURN:   That is right, your Honour.

HIS HONOUR:   Now, the applications being applications by the respondent, I should hear first, I think, from Mr Gageler.

MR DITCHBURN:   I presumed that would be the case.

HIS HONOUR:   Mr Gageler.

MR GAGELER:   Your Honour, I move on the summons dated 22 March 1999 and I read in support the formal affidavit of Maurice Charles Swan, sworn 31 March 1999.

HIS HONOUR:   Yes.  Do we need first, Mr Gageler, to deal with the question of the appearance of the Australian Electoral Commission?

MR GAGELER:   That is correct.

HIS HONOUR:   And you seek leave under section ‑ ‑ ‑

MR GAGELER: Section 359 of the Commonwealth Electoral Act.

HIS HONOUR:   Yes.  I am minded, Mr Gageler, to deal first with the question of whether the Australian Electoral Commission should have that leave, but to put on one side for the moment a question of whether the respondent named in the petition should have the name struck out under Order 16.  Do you see any difficulty with that course?

MR GAGELER:   No, your Honour.  It was a course that I was going to suggest myself.

HIS HONOUR:   Yes.  Now, Mr Ditchburn, the Australian Electoral Commission seeks leave to enter an appearance, to be represented and to be heard on the petition.  Do you offer any reason why leave should not be given to the Australian Electoral Commission?

MR DITCHBURN:   Not in respect of entering an appearance.  It is only in the other matters in later parts of the petition that I would be likely to dispute.

HIS HONOUR:   Therefore do you offer any reason why they should not be represented and heard this morning?

MR DITCHBURN:   No.

HIS HONOUR:   Thank you, Mr Ditchburn.  Mr Gageler, you may have that leave.  Perhaps now if we go to the summons to dismiss or stay the petition.

MR GAGELER:   Yes, your Honour.  That, in the light of your Honour’s judgment in the McClure matter, will involve only very short submissions on my part.  The substance of the petition is an attack on the constitutional validity of the system of above the line voting.  That is a matter that your Honour dealt with in the judgment in McClure.  Your Honour referred to the relevant authorities in paragraph 30 and your Honour held, in paragraph 33, that the asserted challenge to validity in that case was without foundation and the challenge is, in substance, no different in this case.

HIS HONOUR:   Yes.  Thank you, Mr Gageler.  Now, Mr Ditchburn, you have heard what Mr Gageler has had to say about this petition which, at the moment, is the petition concerning above the line and below the line voting in the Senate.  What do you say in answer to Mr Gageler’s submissions?

MR DITCHBURN:   My petitions are significantly different from the cases heard in McKenzie v The Commonwealth and Abbotto v Australian Electoral Commission. 

HIS HONOUR:   Is it different from the petition that I dealt with in McClure in this respect?

MR DITCHBURN:   Yes. I understand the only ground that section 211 and section 211A was disputed was in respect to section 10, which I have lost sight of at the moment. My petition has nothing to do with section 10. It is specifically in respect to – apart from the fact that section 10 requires the laws made by Parliament to be made subject to the Constitution, and of course section 51(xxxvi) also relates to that section 10, in which case they are also subject to the Constitution.

HIS HONOUR:   Your petition in this respect fastens on section 7, does it not, of the Constitution and the expression “directly chosen by the people”? Is that the key to the argument that you seek to make?

MR DITCHBURN:   Yes, that is the essence of it, in particular the word “directly”.

HIS HONOUR:   Yes.

MR DITCHBURN:   In that instance, that argument was not put either in McKenzie – sorry, I have lost sight of it again - in McKenzie’s Case, the other one cited in your previous judgment in regard to McClure, in any case.

HIS HONOUR:   In McKenzie, which is McKenzie v The Commonwealth 59 ALJR 190 Chief Justice Gibbs referred to section 7 of the Constitution at page 191 of what he said. Have you got a copy of McKenzie available to you there, Mr Ditchburn?

MR DITCHBURN:   Yes, I am seeking it out now. 

HIS HONOUR:   I know the feeling, Mr Ditchburn.  Take your time.  I can tell you you are in good company.  The piece of paper the counsel want is always the piece of paper that they cannot find.  Just take your time, find it, and we can go on then.

MR GAGELER:   Your Honour, I might be able to help.  I was told that some volumes on my list of authorities were delivered to the court in Brisbane this morning.  The same case is in volume 57 of the Australian Law Reports and the relevant page in those reports is at 749.

HIS HONOUR:   Yes.

MR DITCHBURN:   I am aware they are there except that there are particular notes that I want to refer to that I have written down.

HIS HONOUR:   Just take a moment, find it, and then we will go on.  Do not feel that it all has to be done instantly.

MR DITCHBURN:   I thought I had a system going.  Here we are.  Now, perhaps the first thing – the easiest way to look at this is to look at the finding of Justice Dawson in Abbotto v Australian Electoral Commission in respect to McKenzie v The Commonwealth where he says:

In McKenziev The Commonwealth, a challenge was unsuccessfully mounted to the group voting system for which the Act provides. The Act at that time was cast in slightly different terms and did not include s 211A, but those differences are not material. Gibbs CJ rejected a submission on that occasion that the system contravened s 16 of the Constitution. He also rejected a submission that it offended general principles of justice by discriminating against candidates who are not members of established parties or groups. Gibbs CJ was prepared to assume that s 7 of the Constitution requires the Senate to be elected by democratic methods but held that any disadvantage caused by the group voting system to ungrouped and independent candidates did not “so [offend] democratic principles as to render the sections beyond the power of the Parliament to enact”.

Even though the substance of the petitioner’s argument in this case is…..invalid, the only real ground raised is that the voting ticket system contravenes s 10 of the Constitution.

It seems that I have confused the recent case involving McClure with the one of Abbotto.  But the point I wanted to make is that I agree with Justice Dawson’s assessment of what the case involving McKenzie was about.  But in my view Chief Justice Gibbs fudged the issues involved there.

HIS HONOUR:   Let us, for the moment, assume that what you say about past cases is right.  Let us assume that neither McKenzie nor Abbotto decides the question.  Why do you say that the above the line, below the line system means that senators are not directly chosen by the people?

MR DITCHBURN:   That gets into some fairly complex reasoning which - I was looking at different aspects of this case to begin with, so I have to dig out some more paperwork.  How can I put it?  In essence, I was prompted to bring this case because of the assertions stated in the Guide to the Electoral System, a copy of which, in fact, the original of which I sent to you ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR DITCHBURN:    ‑ ‑ ‑and the words stated in that petition, particularly the ones in italics, make it plain from that perspective that electors vote for parties, rather than for persons, that is individual candidates.  Now, I realise that that publication would not be definitive in itself but nevertheless that is the reason why I was prompted to bring this action about.

HIS HONOUR:   Is that the key point that underlies your argument?  You say that the above the line, below the line voting means that, in the end, the elector chooses a party, the elector does not choose an individual as senator.  Is that the nub of it?

MR DITCHBURN:   That is the nub of it, with a slight proviso that in certain instances it could be construed as the elector choosing group voting tickets rather than choosing senators themselves.

HIS HONOUR:   And that is the key to the argument that you maintain, is it not, and that is either right or wrong, but that is the nub of it?

MR DITCHBURN:   Right. 

HIS HONOUR:   Then if we get to the core of your argument as being that, the point is a very short one, is it not; either you are right or your are wrong on that point?  If you are right, the petition succeeds, or is arguable in the present context.  If you are wrong, then the petition fails.  But that is the nub of it, is it not?

MR DITCHBURN:   That is the nub of it, although there are other arguments that I have evolved since that petition which I think may be able to relate to that petition as well.

HIS HONOUR:   All right.  Can you tell me about those argument then, please.

MR DITCHBURN:   In the petition I made reference to – and I cannot find the petition – towards the bottom of the second page of my petition I stated:

Hence the provisions conflict with Section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under Sections 8 and 51(xxxvi) of the Constitution.

Now, in reality, the reference to section 8 was an error, I had intended to put section 9, but seeing it is there I would like to use it. Now, the Constitution provides, under section 8, that:

The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament –

So what I am saying here is that Parliament has prescribed a qualification of electors of senators which gives the effect of making those qualified electors into a resemblance of an electoral college.

HIS HONOUR:   Who are the members of that electoral college then, or something that approaches an electoral college?

MR DITCHBURN:   That must be inferred from section 211 and section 211A which, under subsections (1) and (2) provides:

Where the names of candidates nominated in a Senate ‑ ‑ ‑

HIS HONOUR:   You can take it that I am generally familiar with 211 and 211A.  What I want to know is:  who do you say ‑ ‑ ‑

MR DITCHBURN:   Who they are?

HIS HONOUR:   Yes, who constitute this body that is like an electoral college?

MR DITCHBURN:   They are the party officials or the group candidates who lodge orders of preference in statements.

HIS HONOUR:   That is an argument, is it not, that also depends on this central proposition of your petition, that you are voting for a party or for a ticket, you are not voting for an individual?

MR DITCHBURN:   Right, but ‑ ‑ ‑

HIS HONOUR:   It follows on from that, does it not?

MR DITCHBURN:   Yes, that is right. But the point I want to make on that is if these party officials or group candidates are in fact qualified as electors, then it would also contravene section 8 in that first section 8 requires that such qualified electors also are qualified to vote for members of the House of Representatives and that would appear not to be the case, and secondly, the proviso under section 8 that, “in the choosing of senators each elector shall vote only once”, that provision would be contravened in two different aspects.

HIS HONOUR:   What are those aspects?

MR DITCHBURN:   In the first and most obvious aspect, under subsection (2) of section 211, and similarly under section 211A, the party officials or group candidates can lodge two or three orders of preference, so that is obviously contrary to the provision in section 8.

Also I would like to approach this in a bit different position to that under section 272 where the group voting tickets are deemed – the ballot papers are deemed to be marked in accordance with group voting tickets.  Where there are a number of different ballot papers deemed to be marked in accordance with that group voting ticket, that would also be a multiple vote by the qualified elector.

HIS HONOUR:   Sorry.  Say that again.  I missed how that works.  What is the point?

MR DITCHBURN:   Where the ballot papers are deemed – where a number of ballot papers are deemed to be marked in accordance with the group voting tickets, because there are a number of ballot papers the group voting tickets lodged – registered and lodged by the party officials are effectively multiple votes by the one group of officials.

HIS HONOUR:   So the point is that they are multiple votes by the officials rather than multiple votes by the voters, is that what you are saying?

MR DITCHBURN:   Right, the reason being that section 272 effects a substitution of votes for the – substitution of group ticket votes for the ballot papers.

HIS HONOUR:   Yes.

MR DITCHBURN:   There are other – there is another argument I have in respect to the implications to be drawn from section 7 and section 8. I would prefer to go into that in some detail further down the track, once I have established the explicit transgressions. If you like, I can try and give you the nub of what I want to say.

HIS HONOUR:   Perhaps if you state the nub of it and we will see whether we need to explore it further.  What is the nub of it?

MR DITCHBURN:   In essence, I would reason from various sections, both sections 7 and 8, also section 34(i) and section 41, that electors have an individual right to vote and only qualified electors can vote at elections for senators of the State. Do you want me to go into details of the reasons for that?

HIS HONOUR:   Assume that is right, how does that affect the argument that you make in the petition or is this a consequence of the arguments that you make in the petition?

MR DITCHBURN:   It is both. It affects the argument I make in the petition by providing a different perspective on the fact that the provisions I have referred to in the petition violate both sections 7 and 8 of the Constitution.

HIS HONOUR:   Can I see if I understand what you are saying? As I understand it, you say that when you read the various provisions, 7, 8, 34(i), 41 and, no doubt, the other provisions in the Constitution that regulate this issue, you end up with the notion that an individual elector has a right to vote, that individual elector can vote only once. Here, because of the arrangements that are made about group voting or above the line, below the line voting, you have the party officials coming into the process and the intrusion of the party officials in the process adversely affects the individual’s right to vote and may involve, you say does involve, consequences of, in effect, the party officials, who are themselves electors, voting repeatedly. Is that the essence of what you are saying?

MR DITCHBURN:   You have put it decidedly better than what I have.

HIS HONOUR:   I think I understand the point and, again, it is a point that is right or wrong, is it not?  But that is the nub of your complaint?

MR DITCHBURN:   That is right.

HIS HONOUR:   Is there anything else you ‑ ‑ ‑

MR DITCHBURN:   Yes.  There is something that you raised, which I had forgotten about.  It was found in McKinlay’s Case ‑ ‑ ‑

HIS HONOUR:   McKinlay has got a lot about voting and the nature of the democratic process and I have read the passages again that you refer to in McKinlay’s Case.  Yes.

MR DITCHBURN:   They allude to the fact that there can be no intervention or intermediary in electors choosing senators. 

HIS HONOUR:   The clearest statement of that is Justice Stephen, is it not, at page 56, where his Honour said that:

the Houses of the legislature are to be composed of members whom the people choose; in each the method of choice is required to be that of direct choice, there is to be no interposition of an electoral college between the chooser and the chosen.

That is the essence of what his Honour was saying there, and that is the nature of the complaint that you make now, is it not, that there is somebody interposed between the chooser and the chosen?

MR DITCHBURN:   That is right, exactly.

HIS HONOUR:   I understand the argument. 

MR DITCHBURN:   A similar point is made by the other members of the Court, particularly Justice Murphy.

HIS HONOUR:   Yes, I have read those passages and I am familiar with them, having looked at them last night.  Now, having identified the nub of the argument as we have, is there anything else that you need to tell me about in support of that argument?

MR DITCHBURN:   Well, a great deal.  I had intended going through the legislation step by step to particularly identify why voters are either choosing group ticket votes or they are choosing the parties themselves, rather than Senate candidates.

HIS HONOUR:   I think you should assume that I have looked and read and, indeed, read again last night those provisions of the Electoral Act that apply, and I think I understand the way in which the group voting system works.  But we know where the nub of your argument lies.  That is good or bad, that core of your argument.  Do we need to go off into the fringes of the way in which Commonwealth legislative drafting gives effect to the group voting system?

MR DITCHBURN:   In certain respects, yes, particularly with respect to the findings of Chief Justice Gibbs in McKenzie.

HIS HONOUR:   Chief Justice Gibbs in McKenzie was looking at the Act before 211A went into it.

MR DITCHBURN:   Right.

HIS HONOUR:   Again, you say Chief Justice Gibbs in McKenzie did not really confront directly – I think you said he fudged – the issue under section 7 of the Constitution. As I say, for the present, for the purpose of argument, let us leave aside the earlier decisions. As it happens, I think that the Electoral Commission says, look, it has all been decided, but can we come – that is why I am concerned that we should come to the core of your argument about why it is not direct choice. I think I understand that argument. It is that you have the party officials intruded into the process.

MR DITCHBURN:   That is essentially it, but there are some elements of the legislation which perhaps you have not considered.

HIS HONOUR:   Yes.  You tell me what they are.

MR DITCHBURN:   Well, I am just trying to select the parts from what I have been trying to rehearse in my mind.  One aspect is that the orders of preference submitted by the party officials or groups of candidates are in relation to all the candidates in the election and this applies where there is one, two or three orders of preference submitted.  Secondly, subsection (3) of section 211 provides that the names of all the candidates be set out as it was in an……ballot paper of an elector voting below the line.  So that to all intents and purposes, what seems to be submitted is in effect a ballot paper.

HIS HONOUR:   Yes, but not one that is counted.  It is not one that is counted, is it?

MR DITCHBURN:   Well, they are.  Under subsection (4) the:

group of candidates shall be taken to have a group voting ticket, or 2 or 3 group voting tickets…..registered for the purposes of the election, being the order of preferences…..given in that statement, as the case may be.

Now, if we look at section 272 to find out what the purposes of the election are, we find that subsection (1), for instance:

For the purposes of section 273 –

and I interpret that to be, for the purposes of the scrutiny and, in particular, the counting of votes –

(a)  a ballot-paper…..marked in accordance with subsection 239(2)….. ‑

that is the vote above the line –

(b)  the candidates in that group have only one group voting ticket registered for the purposes of that election;

that ballot-paper shall be deemed to have been marked in accordance with that ticket.

The point is that it is obvious that a ballot-paper marked in accordance with section 239(2) or (3) cannot be marked as a group voting ticket has been marked, that is in comparison a ballot paper which has been marked below the line.  So that section 272 is a statutory fiction. 

Now, in Butterworth’s Australian Legal Dictionary has a reference which says the Commonwealth Parliaments cannot deem a fact or thing to exist so as to acquire legislative power with respect to it, and they quote Herald & Weekly Times Ltd v The Commonwealth. Now, I have the relevant section here, found by Justice Kitto. This is in 115 CLR at 438.

The submission was that the Parliament cannot turn a law which is not upon a subject matter of legislative power into a law which is upon such a subject matter by the simple expedient of creating a statutory fiction.  This abstract proposition may be accepted at once –

Now, what I contend is that section 272 is an attempt to make group voting tickets, preselected as it were by party officials or candidates, into the votes of electors. That would be contrary to section 7 in two ways. Firstly, senators are people. Group voting tickets are not people. As I referred to earlier in section 211, group voting tickets are the list of senators set out as below the line under section 211(3) and the only difference between one group voting ticket and the other is that the sequences of numbers vary. That is they are essentially permutations of the group voting ticket. So that when an elector is confronted with a ballot paper and sees that he has a choice of marking his ballot paper above the line – and if I can find my copy of it, the choice then is either between various group voting tickets, if the elector is aware of it – and there is at least according to Dean Jaensch in his book which I have a copy here, “Elections, how and why Australians vote” by Dr Dean Jaensch, who was reading politics at Flinders University at the time of publication. I do not know if he is still there. He made ‑ ‑ ‑

HIS HONOUR:   It would not surprise me, Mr Ditchburn, if he told us that some voters do not vote in a way that represents the full application of intellect to the process.

MR DITCHBURN:   What he was trying to state was that electors rarely look at the lists of group voting tickets which are displayed at the election.

HIS HONOUR:   Again, assume that to be so for the purposes of argument, the point comes back to the central point which you have made, and which I grasp, which is whether the group voting tickets, because of the interposition of the party officials, means that electors are not directly choosing their senators.  That is the nub of it.

MR DITCHBURN:   Yes.

HIS HONOUR:   Do we need to go into further detail than that?

MR DITCHBURN:   There is just one aspect which I think you should be made aware of, that is that under section 211A(2) and section 211, where party officials lodge two or three group voting tickets, under section 272(2), (3). (4) and (5), I think, those group voting tickets are allocated in turn.  Effectively they are divided between the number of ballot‑papers or the ballot‑papers are divided between the number of group voting tickets submitted.  In such a case, it is not possible for an elector to vote for a particular group voting ticket because there is nothing to indicate which group voting ticket the elector wished to vote for, in which case they could only have voted for a party.  This contention is also supported by the fact that under section 210A and section 214(2) which provides for the printing of abbreviated party names adjacent to the squares printed above the line, so that, as I say, when an elector is confronted with the ballot‑paper, his immediate reaction would be to look at the names of the parties alongside and think, right, I will vote for that particular party.

HIS HONOUR:   Is there any difference between a voter doing that and a voter taking with him or her into the polling booth a copy of the party’s how-to-vote card and copying it slavishly on to the ballot‑paper?

MR DITCHBURN:   In either case there would be no difference, but that does not mean that a person who votes for a party who has submitted two or three group voting tickets can do that because, as I say, they are allocated in practically random fashion. 

HIS HONOUR:   They are allocated not randomly, they are allocated proportionately.  If there are two tickets, the votes are divided in half; if three, they are divided into thirds, and the remainder dealt with accordingly.  Yes, I understand that.

MR DITCHBURN:   There is also a factor that electors, if they vote above the line, must accept completely that party’s voting ticket.

HIS HONOUR:   I understand that, and that is an argument about voting behaviour and about politics.  The legal question is whether above the line or below the line voting constitutes direct choice.  If it does, your argument fails; if it does not, your argument succeeds.

MR DITCHBURN:   The point is – I have lost it – the point I wanted to make was – I have difficulty because there is chronic sinusitis and it makes it difficult for me to express myself when I have got cold weather. 

HIS HONOUR:   Said from Brisbane to Canberra, Mr Ditchburn, that has a certain irony about it in Canberra, but there we are.  It is cold for you, I know, coming from where you come from.

MR DITCHBURN:   The reason I live in Townsville is because I cannot handle the weather down south.

HIS HONOUR:   I understand that, yes.

MR DITCHBURN:   But I have lived in Canberra too, and I appreciate the significance of your remarks.

HIS HONOUR:   It surprises me that you moved away, Mr Ditchburn, but there we are.  Now, what more is it that you want to tell me?

MR DITCHBURN:   I am sorry, I have lost track of my train of thought.

HIS HONOUR:   Can I just say this to you, Mr Ditchburn, and this is something that I want you to reflect on.  I do not think there has ever been anybody who has addressed a court anywhere, whether that person has been a barrister or a lay person like you who, after the argument has finished, has not thought of five dozen things that they ought to have said, might have said, could have said, would have said, if only.  I have no doubt that you, at the end of this process, will go away feeling exactly the same thing, if only.  Why did not I?  If only I had said this or that.  In that you will be in good company with every barrister that has ever appeared in any court in any society.  But I think I do understand the nub of the argument that you want to make and, as I say to you, that argument is right or it is wrong.  Now, I do not think, at the moment, that the argument is going to improve or it is going to get worse by restating it.  So take a moment, but is there really anything else that can be said about this point, other than the points you have made.

MR DITCHBURN:   Can I just check my notes, please?

HIS HONOUR:   Yes, of course.

MR DITCHBURN:   I cannot expand on what I have said in relation to that particular argument.  The other arguments, of course, are still – so that would you like me to move on to my second argument?

HIS HONOUR:   That is the other petition?

MR DITCHBURN:   No, the argument as to the section 8 providing that party officials or the candidates are elected as – are qualified as electors by the legislation.

HIS HONOUR:   I think I understand that argument that you make.  I am not sure that it is altogether clearly advanced in your petition but at least I understand the argument.  Yes?  Is there anything else you want to say in support of the petition?

MR DITCHBURN:   Yes. The implied conditions to which I alluded previously, based on section 34(i) of the Constitution, I take it that you are familiar with that.

HIS HONOUR:   Yes, and I think that I had restated to you, had I not, the argument that you sought to make, namely that sections 7, 8, 34(i), 41 and the other provisions of the Constitution give to an individual a right to vote and that individual right to vote is here subject to intrusion, you say, by the party officials, and that is impermissible. Now again, that is the nub of it, is it not?

MR DITCHBURN:   It is the nub of it, but it is not quite accurate.

HIS HONOUR:   Yes, what is the inaccuracy?

MR DITCHBURN:   I am not claiming that sections 34(i) and section 41 give electors a right to vote as such. What I am claiming is that those sections imply that where section 8 refers to “but in the choosing of senators each elector shall vote only once” we are referring to an individual elector and that that is supported, because of in section 34(i), that an elector:

“must be…..an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector –

HIS HONOUR:   And the key to this part of your argument is, is it not, that you say that the party officials who are themselves electors are in effect voting more than once because it is their voting ticket that is given effect to in the count.  Is that the nub of it?

MR DITCHBURN:   The nub of what I am saying here is that electors – the interpretation of section 8 is such that electors should be considered as individuals and not as a mass, people of the State. Also, one can make the point there is several authorities saying that the people of the State referred to in subsection (7) must be the qualified electors referred to in subsection (8).

HIS HONOUR:   Yes.  I understand that.

MR DITCHBURN: Section 41 has similar effect. While I am not saying that it provides a right to vote of itself, it is the State legislation which would do that, and I well understand that the section 41 has been held to be redundant. So that – but what I am saying is that when it was in operation it applied to an individual person.

HIS HONOUR:   Yes.

MR DITCHBURN:   That is simply that point.

HIS HONOUR:   Now, is there any further point that is made in the petition that you seek to support?

MR DITCHBURN:   There is the wider scope that section 7 and section 24 of the Constitution support a contention that representative democracy is an inherent feature of the Constitution and that by having parties having the Electoral Act such that people’s right to vote is determined by the parties, as it were, the parties direct the electors as to how to vote, rather than the electors being the fundamental bulwark of representative democracy that is determined by the parties.

HIS HONOUR:   Again this is a point, is it not, that comes back to that fundamental point that you seek to make, that the interposition of group voting determined by, as you say, party officials means that senators are no longer directly chosen.  We are back to the same point, are we not, Mr Ditchburn?

MR DITCHBURN:   Yes, indeed.

HIS HONOUR:   As I say, I understand the point.  It is either right or it is wrong.

MR DITCHBURN:   Right.  It is simply as a matter of supporting that argument.

HIS HONOUR:   Yes, I understand that.  Mr Ditchburn, you must have a fair opportunity to present your argument, and I do not wish to cut you off from presenting your argument, but I am not going to be assisted simply by repetition and there are other matters in the list today.

MR DITCHBURN:   Yes.  Again that simply reinforces what I have said. 

HIS HONOUR:   Have we come then to the end of what you would say in support?

MR DITCHBURN:   Unfortunately, yes.  I thought it would be considerably more detailed but I am more than confused, as it is.

HIS HONOUR:   As I said to you earlier, you will at the end of this process, like anybody who has ever appeared in a court, have a very bad dose of reflection on what could and might have been.  You are in the worst of all possible positions to judge how effective your argument is.  Do not, at the end of this process, go away thinking that you have done your case a disservice.  You are the last one who can judge that, Mr Ditchburn.  You have, if I may say so, put your case.  I understand your case.  There we are.

But perhaps now if I hear whether Mr Gageler has anything to say in reply.  Mr Gageler.

MR GAGELER:   Your Honour, may I say one or two things very briefly in reply.  The first thing is to take your Honour very briefly to one or two of the provisions of the Act to point out that in section 211(1) the group voting ticket must be lodged shortly after the closing of nominations.  Then in section 216 the group voting tickets must be displayed at polling booths.

HIS HONOUR:   And the form of paper in the schedule indicates, does it not, that is at schedule 1, that “You may vote in one of two ways”, either above or below the line and if you vote above the line you “indicate the voting ticket you wish to adopt as your vote.

MR G AGELER:   Indeed, and the marking of votes in that way is dealt with in section 239, and then sections 272 and 273 deal with the scrutiny of votes so marked.  So that when the system is properly understood, it is seen that, contrary to Mr Ditchburn’s argument, there is no interposition of any step between the marking of the vote and the scrutiny of the vote giving rise to the choice of the elected candidate.  That is the first point, simply by reference to the scheme of the Act.

Secondly, whatever might be said about Chief Justice Gibbs’ judgment in McKenzie, it is very difficult to say that his Honour did not deal precisely with this point in the last two paragraphs.  His Honour was also called upon to deal with what appears to be exactly the same point shortly afterwards, in the case of Soegemeier 58 ALR, and his Honour dealt with it even more succinctly in the penultimate paragraph in that judgment. The final sentence of that paragraph contains a statement by his Honour that “s 8” – and his Honour added, “and 30 of the Constitution simply had no bearing on the question.”

So far as section 34(i) is concerned, the same answer can be given. But, in any event, that is one of the provisions of the Constitution that is expressed to operate, “Until the Parliament otherwise provides”, and Parliament has otherwise provided. Section 41 has no bearing on the matter and although it is not something upon which I have refreshed my memory, my best recollection is that in the case of Sipka 152 CLR 254, from a secondly reference that I was able to find, the Court held that section 41 was, in any event, a spent provision.

MR DITCHBURN:   Could you speak up, please, I cannot hear what you are saying.

MR G AGELER:   I said that section 41, from my best recollection, was held in the case of Sipka to be a spent provision.

HIS HONOUR:   I think Mr Ditchburn proceeded on that assumption in any event.

MR G AGELER:   Yes.  Those are the submissions in reply.  Your Honour, I should point out that I do seek costs in the event that the petition is dismissed.

HIS HONOUR:   Those are matters that will fall for argument perhaps later.  I will announce the course I will take in relation to this petition after I have heard argument in the other petition in which Mr Ditchburn is engaged. 

Mr Ditchburn, I will go on now to hear your second petition and after I have heard argument in that petition, I will tell you then whether I will reserve my decision in this one and the other one or, perhaps, give judgment in it today, but let us go on and hear argument in the second of your petitions which is matter No B50 of 1998 which is the petition concerning the House of Representatives election for the Division of Herbert.

MR DITCHBURN:   I understand that I cannot respond to the respondent.

HIS HONOUR:   That is the ordinary course of events, Mr Ditchburn, that he goes first; you go second; he has a reply and that is it.  I rather suspect, Mr Ditchburn, that anything you do wish to add may, however, find its way into our argument on the second petition, so I am not sure that you are going to be greatly disadvantaged.  I think if we go on to hear argument in the second petition, that you may find an opportunity to bring to my attention those things that you want to arising out of the first.

MR DITCHBURN:   There is a small point, your Honour, which does not have any bearing on the second petition and it is simply that where he said that there is no intervention in any of the processes under sections 211, 272 and 273, I might point out that the allocation of ballot‑papers to two or three different group voting tickets could only be done by the intervention of an electoral official.

HIS HONOUR:   Yes.  Thank you, Mr Ditchburn.

AT 10.39 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

HIS HONOUR:   On 30 November 1998, Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act 1918 (Cth) (“the Act”).  The petition was said to “[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998”.  The relief sought by the petition is described as:

“1.A declaration as to the validity of Sections 211, 211A, 272 and Subsections 239(2), 239(3) and 273(5) paragraphs (c), (d) and (f) of the Commonwealth Electoral Act 1918.

2.An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to Sections 211, 211A, 272 and Subsections 239(2), 239(3) and 273(5) paragraphs (c), (d) and (f) of the Commonwealth Electoral Act 1918.”

The petition named as respondent the “Australian Electoral Officer for Queensland”.  The Australian Electoral Commission (“the Commission”) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined.  It has also sought an order that the petition be dismissed on the ground that it does not set out facts which would justify any relief under the Act, or in the alternative, that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.

Section 359 of the Act provides:

“The Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed, and to be represented and heard thereon, and in such case shall be deemed to be a party respondent to the petition.”

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted.  Because I consider that the petition cannot succeed and should be dismissed, I need form no view on whether the respondent named in the petition was “improperly joined” within the meaning of O 16 r 4 of the Rules.

The central complaint of the petitioner relates to what has come to be known as the “above the line” and “below the line” voting, or “group voting”, system in Senate elections.  That is dealt with in ss 211, 211A, 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate elections.  The petitioner contends that:

“Where voters mark their Senate ballot papers 'above the line', ie in accordance with subsections 239(2) or (3), they select a political party or group which has lodged a group voting ticket pursuant to Section 211 or Section 211A.

Section 272 creates a statutory fiction by 'deeming' those ballot papers to have been marked according to an order of preference specified by that political party or group of candidates.

No Senator is directly chosen by people who vote 'above the line' (refer to Senate ballot paper) - voters merely select the political party or group of candidates whose previously chosen order of preference is then attributed to the voter by the statutory fiction created under Section 272.

Consequently the provisions of the Commonwealth Electoral Act 1918 referred to above prescribe a method of electing Senators which resembles an electoral college, and where Senators are indirectly chosen by the people of the State.

The first paragraph of Section 7 of the Constitution of Australia states:-

'The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.'

Hence those provisions conflict with Section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under Sections 8 and 51(xxxvi) of the Constitution.”

As I said in McClure v Australian Electoral Commission (1999) 163 ALR 734 at 741-742:

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group, the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement, being an order that gives preferences to the candidates lodging the statement before any other candidate.  Section 211A of the Act makes like provision for candidates who are Senators or, if there has been a dissolution of the Senate, were Senators immediately before the dissolution and who are not members of a group.  There is no like provision for other candidates not part of a group.

The constitutional validity of provisions like s 211 has twice been considered - in McKenzie v Commonwealth (1984) 59 ALJR 190; 57 ALR 747 and in Abbotto v Australian Electoral Commission (1997) 71 ALJR 675; 144 ALR 352. At the time of McKenzie, the Act was cast in slightly different terms and did not contain s 211A. Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution –

Section 7 provides (so far as relevant):

“The Senate shall be composed of senators for each Sate, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.” 

Section 16 provides:

“The qualifications of a senator shall be the same as those of a member of the House of Representatives.”

‑ and held that the provisions then in force did not 'so [offend] democratic principles as to render the sections beyond the power of the Parliament to enact' (1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. In Abbotto, Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution.

Section 10 provides:

“Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.”

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1. Particular reference was made to those parts of the reasons of Gibbs J (at 44), Stephen J (at 56), Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that “the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth”.

Like s 24, s 7 of the Constitution also uses the expression “directly chosen by the people” and as Stephen J said in McKinlay (at 56):

“Each [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose; in each the method of choice is required to be that of direct choice, there is to be no interposition of an electoral college between the chooser and the chosen.”

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance.  I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitioner's contentions.  However that may be, as I said in McClure, I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution. See also McKenzie v The Commonwealth (1987) 59 ALJR 190; 57 ALR 747; Abbotto v Australian Electoral Commission (1997) 71 ALJR 675; 144 ALR 352. In particular, I do not accept the contention that those provisions “prescribe a method of electing Senators which resembles an electoral college, and where Senators are indirectly chosen by the people of the State”.

The petition cannot succeed.  It should be dismissed.

Mr Gageler.

MR GAGELER:   Your Honour, I seek the costs both of the named respondent and of the Australian Electoral Commission.

HIS HONOUR:   Mr Ditchburn, do you point to any reason why costs should not follow the event?

MR DITCHBURN:   Yes, your Honour.  I am getting an echo here.  The first point that I want to make is that there is no personal gain that I expected to receive by lodging these petitions.  I was not a candidate or had any party affiliation or had any contact or dispute with any of the candidates.  That is in either petition.  I have certainly no prospect of entering politics, living with chronic sinusitis.

The reason for lodging the petition was to acquire a right to vote for a candidate of my choice in common with every other elector and that the Constitution should be interpreted literally where there is no ambiguity.

HIS HONOUR:   Yes.

MR DITCHBURN:   The second point was that the petition was based on information provided by the Australian Electoral Commission and a guide referred to in the petition, both as to the choosing of parties rather than senators, and the transference of votes from excluded candidates in respect of members of the House of Representatives.  As I stated in my submission, I was prompted by these considerations in lodging a petition, searching further whether there is a case to be answered.  If the statements in the guide to the Electoral Commission are not valid, then I would suggest that perhaps the Electoral Commission should share some of the costs.

My third reason goes to my current financial situation or lack of it.  I have not had paid employment for seven or eight years, primarily because chronic sinusitis affects my ability to perform to the expectations of most employers.  While I have been seeking other avenues to surmount this problem, including attending TAFE courses and university for a year, I have been unable to complete those courses for the same reasons.  It just becomes very difficult for me to maintain any consistency in the work requirements of those institutions too.  I have also been undergoing work training rehabilitation without any particular prospect emanating from that.  So that if these costs are substantial – by that I mean perhaps more than about $2,000 – I may well be forced to sell what few assets that I have, which are primarily my home and the meaning attached to it, and I feel this would be an unconscionable cost to pay for simply trying to establish whether the laws of Parliament were, or were not, valid. 

I had no other means of doing this.  I could not afford to seek legal opinion on this matter, nor on other matters that come to mind.  My experience in the past has been that trying to establish whether such concepts as are brought before you in the petition are valid or not is very difficult to ascertain how factual the responses from Government or Government ministers are in such matters.

HIS HONOUR:   Yes.  Is there anything else you wish to say on this subject, Mr Ditchburn?

MR DITCHBURN:   It did occur to me, perhaps, that if the statements made in the guide to the Electoral Commission were not accurate, they may constitute an illegal practice in respect to – according to the definition, I think, in section 351.

HIS HONOUR:   Yes, I am familiar with those provisions, but these are allegations that have not previously been made, Mr Ditchburn.  You have not previously suggested that the Electoral Commission’s publications were themselves illegal practices and I think that there may be, at the least, very serious difficulty about you relying on that allegation in answer to the claim for costs now made.

MR DITCHBURN:   It is simply a matter raised by the way, your Honour, and it was simply as a matter of an observation and you did ask me if I had any other comments.  I took that to be general comments.

HIS HONOUR:   Yes.

MR DITCHBURN:   I did not raise those allegations because I agreed with what was said in the guide to the Electoral Commission and it was not in my advantage to try and say that what they had stated was contrary to fact.

HIS HONOUR:   Yes.  Thank you, Mr Ditchburn.  Mr Gageler, do you persist in your application for costs?

MR GAGELER:   Yes, I do, your Honour.

HIS HONOUR:   Yes.  I need not trouble you further on the aspect of costs.

In my opinion, the matters urged by the petitioner provide no sufficient reason to permit departure from the general rule that costs follow the event.  Accordingly, the orders are:

1.Petition dismissed.

2.  Petitioner to pay costs of respondent and of Australian Electoral Commission.

AT 2.36 PM THE MATTER WAS CONCLUDED