Green, In the matter of an application for leave to appeal; Freemantle, In the matter of an application for leave to appeal

[2011] HCATrans 237

[2011] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2011

In the matter of an application by ANDREW GREEN for leave to appeal

Office of the Registry
  Sydney  No S151 of 2011

In the matter of an application by GRAHAM FREEMANTLE for leave to appeal

FRENCH CJ
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2011, AT 11.05 AM

Copyright in the High Court of Australia

MR P.E. KING:   If your Honours please, I appear for the applicant in both matters.  (instructed by James R.G. Bell)

FRENCH CJ:   Yes, Mr King.

MR KING:   Yours Honours, we sent to the Registry yesterday an outline of oral argument, bearing in mind that the nature of the matter is for leave to issue process, and also with ‑ ‑ ‑

FRENCH CJ:   I do not think we have seen that.

MR KING:   I see. 

FRENCH CJ:   What time did you send it in yesterday?

MR KING:   At lunchtime, your Honours.  We also sent a bundle of material the day before.

FRENCH CJ:   Well, we have applicant’s authorities and – I am sorry, wait a minute, under the heading “Applicant’s Supplementary Material and Applicant’s Outline of Oral Argument”.

MR KING:   Yes.

FRENCH CJ:   All right.

MR KING:   Would it be convenient, your Honours, to quickly look at that.  There are only two issues I wish to add supplementary to what is in that document. 

FRENCH CJ:   This is a document with - the one I am looking at appears to have 16 pages in it, is that right?

MR KING:   Yes, your Honour. 

FRENCH CJ:   Not much of an oral outline, Mr King.  I do not think we are going ‑ ‑ ‑

KIEFEL J:   Magnifying glass for the font too.

FRENCH CJ:   Yes.  Well, we have read your submissions in the application book.  I suggest you had better take us concisely and succinctly to the particular points you want to make.  I do not think we are going to sit here for 10 minutes and read this. 

MR KING:   I am sorry that your Honours did not have that opportunity.  There are two issues that I would wish to address supplementary to the outline of argument in the application book which is at pages – in effect, on the key point of validity at 162.  On the first issue, your Honours, in relation to the validity of the rule, we deal with those in the outline at pages 1 to 7, but can I just address your Honours on the form of the rule itself.  I should indicate we served a 78B notice in relation to these issues and an affidavit has been filed. 

FRENCH CJ:   Yes, go on.

MR KING:   The rule contemplates a three‑stage process.  Firstly, there is a decision by the Registrar to refer to a Justice, then a direction by a Justice in chambers and then, if an application is made ex parte, then an ex parte judgment.  In the matter of Letts, Justice Toohey, when he was sitting in the Federal Court, held that that process – that whole process was an exercise of judicial power, not administrative power.  Therefore, the Administrative Decisions Tribunal provisions did not apply. 

That has significance for the validity of the rule insofar as it prevents the filing of non-pendant proceedings.  Of course, the rule operates with respect to pending proceedings but it is only with respect to the limitation upon access to the court, in the exercise of its original and exclusive jurisdiction that we respectfully submit that the fetter which the rule, in effect, provides for is inconsistent with the exercise of judicial power, as that has been defined, and it is most conveniently found in your Honour the Chief Justice’s judgment in Totani, summarised at paragraph 62 which is in our bundle.

Can I bring it to a head and put it this way. In that judgment, your Honour the Chief Justice dealt in some depth with the open court principle. Our respectful submission on that is this, that assuming, as Justice Toohey held, that the process is an exercise of judicial power, then we respectfully submit in relation to non-pendant proceedings seeking to exercise it in proper form, as it has not been suggested the contrary in this case, in relation to a traditional or conventional exercise of the Court’s judicial power under section 75 of the Constitution, in this case subparagraphs (iii) and (v), that to place any further limit upon the filing of process is inconsistent with those principles which your Honour referred to.

There is one decision of the Court constituted by Chief Justice Barwick and Justice Walsh and Justice McTiernan of Inglis, which is in our bundle, in which a not dissimilar question arose in respect of the exercise of power to prevent the filing of an appeal and their Honours held that there was no inherent power of the Court to restrain or prevent the filing of any process of that type and inferred that it was inconsistent with section 73 of the Constitution.

Our respectful submission is, if it is inconsistent with section 73 and the exercise of judicial power to restrain or prevent the filing of process otherwise formally valid in relation to the exercise of the appellate process, then so is it inconsistent in relation to original process under section 75.

FRENCH CJ:   All this rule does is to impose a requirement that you seek leave of a Justice, which is what you have done.

MR KING:   We certainly did that but ‑ ‑ ‑

FRENCH CJ:   And that is all done in open court.

MR KING:   No, it is not done in open ‑ ‑ ‑

FRENCH CJ:   Well, in the sense that the reasons have been published, you are appealing against those, or seeking leave to appeal against those.

MR KING:   The problem there, your Honour, is that, as Justice Toohey pointed out in Letts Case, it is a three‑stage process.  Firstly, it is a decision by the Registrar to refer, then a direction by a single Justice without any submissions or appearance by anybody, and then the further ex parte judgment itself does not involve any appearance by any person.  It is true, as your Honour points out, that the judgment is then published and then we have an opportunity to appeal from that and that is what we are doing today, seeking leave to appeal from that.

CRENNAN J:   But the facts in a petition need to disclose an arguable case in relation to alleged contraventions of the Electoral Act, and what would be the point of permitting a proceeding to be issued in circumstances where the petition has failed to contain facts sufficient to support an arguable case?  It would be immediately subject to a strike‑out application.

MR KING:   Well, that may or may not be so.  The Court has powers of its own motion to act and, indeed, the respondents may themselves move in that way but ‑ ‑ ‑

CRENNAN J:   It is difficult to see why the principle set out in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 – difficult to see why that principle should not be applied to election petitions, having regard to the fact that the provisions concerning petitions in the Electoral Act are directed to ensuring that the election results need to be determined as quickly as is reasonable in the circumstances and one can see the public policy that lies behind such provisions.

MR KING:   Of course, your Honour is absolutely right.  But there are two qualifications to that, in our respectful submission, relevant here.  Firstly, the rule does not apply the test in Dey’s Case.  The rule speaks of a process on its face that does not fall within the jurisdiction of a court, or on its face is an abuse of process.  His Honour, with respect, just did not apply the rule in that way.  So that even if we are wrong about the validity question, then his Honour, with respect, adopted the wrong test.

But the second observation your Honour makes about delay, in our respectful submission, is to be addressed this way. His Honour treated the issue of delay in section 363 of the Act – the Electoral Act – as somehow or other being a gloss or a superimposed additional requirement in respect of the Dey test.  What we submit is that ‑ ‑ ‑

CRENNAN J:   Well, it is a very important requirement in the context of electoral petitions.

MR KING:   Well, yes, but what is more important is that the electoral process and the integrity of the electoral process be maintained.  In this particular case, the Parliament had before it in June of last year a reform bill which would have addressed these very issues and they lapsed – and that bill lapsed.  They had been considering that for 15 years.  The problem with abuse of the postal voting system which is raised by these cases, has exponentially grown in the last three electoral cycles, and the abuse of the postal voting process is a matter of ongoing significance.  So we would respectfully submit, it is more important to address the question, the vice that is raised by the matters than to, as his Honour Justice Emmett and, with respect, Justice Hayne did, to have regard to possible delays of consideration, and in any event there has been no relevant ‑ ‑ ‑

CRENNAN J:   In relation to the substantive complaints about the application forms for postal votes, his Honour has said in relation to the complaint that there was no provision for a declaration that an applicant was an elector.  His Honour has dealt with that at page 132, and his Honour has found in relation to that allegation that the petition has not disclosed any case fit to go to trial.  Then his Honour at about line 25 deals with the two differences between the form. 

MR KING:   Yes.

CRENNAN J:   His Honour finds that:

No fact was alleged in the petition, and no argument was advanced –

to show how those differences –

had any effect on the outcome of the election –

Now, that requirement that certain allegations have to be framed in a way that shows that they are going to have an effect on the outcome of the election is linked to section 363 requirements.

MR KING:   Can I address that important issue your Honour has raised.  If your Honours go to page 131 of the blue book, at line 28, his Honour Justice Hayne referred after looking at the approved form:

Two differences can be identified between the approved form and what is tendered in evidence as a copy – 

His Honour identified those two differences as being the fact that there was a difference in the reference to prisoners and a second difference in the reference to the number on the form.  Your Honour, neither of those differences were ever the subject of submission or complaint.  The differences are far more significant.  The second problem is this, that his Honour referred to the approved form but the approved form was not in evidence.  It is not clear how it was ‑ ‑ ‑

CRENNAN J:   What are you saying are the significant differences?

MR KING:   If your Honours go to page 256, there is the Robertson form, and this was before his Honour but for reasons that are obscure his Honour did not refer to it.  Firstly, the first panel is not in the approved form.  The whole of the page at 256 and Mr Bell’s evidence at page 174 indicates that those telephone numbers there are in fact not the AEC’s numbers, as one might expect if one looks across to page 259, but rather is the hotline of the local candidate, in this case the successful candidate.  On the next page, the first panel is not in the approved form and the problem with that, if your Honour looks at the third pictogram it says:

Fold and insert the application form in the reply paid envelope.

It has got a person cutting up the form.  Then if your Honour goes over to page 260, your Honour will see that the envelope referred to is to be sent to the Robertson Postal Voting Centre.  Now, that was an address made up in respect of the campaign for the candidate’s benefit.  So that, in this case, the candidate could harvest the postal votes, obtain the information from them and then lodge them with the DRO herself. 

Now, that meant that other candidates were prevented from accessing the information that was obtained by that candidate. It also meant that section 184(2) of the Act was contravened, which was that an application for a postal vote be submitted to the DRO, not to a candidate who has got money – and a large sum of money is required to send such a form out to each household in the electorate on the first day of the election – redirecting applications for postal votes to the candidate and not to the returning officer.

FRENCH CJ:   You are saying that is a breach of the words “an application made in Australia shall be made to a DRO”.

MR KING:   That is right.  But in addition, if your Honour looks at 184(1) – and these are clearly set out in the petition, these allegations – if your Honour goes to 184(1) it required – perhaps if I can take your Honours back to 258.  Your Honours will see a further difference between the approved form and the form that was actually used.  There are two copies of the postal vote application. 

Now, in the approved form there is only one, and what the pictogram suggests is that it should be cut up and then sent into the candidate’s office, masquerading as the Robertson Postal Voting Centre.  When one cuts up the second form from the first all of the protections which Parliament has provided for about identification of postal voters, of witnesses and the like, in other words the protections against impersonation and fraud, are gone. 

In this Court in Maloney’s Case, one of the first cases it is dealt with, and indeed the only other case that is dealt with on postal voting, held that a failure to comply with even the most – with any condition in relation to postal voting meant that the votes were invalid, and the reason for that was, their Honours said, and particularly Justice Barton, that postal voting is the greatest breach of the secrecy of the ballot which the law will allow. 

What has happened here is that that breach of the secrecy of the ballot has gone beyond, as it were, the pale.  Those were the issues that were sought to be raised before Justice Emmett and they were not because they were dismissed in limine without being heard.  Justice Hayne correctly, in our submission, at the passage which I have referred to at page 132 and again at 134, did address those issues in a more substantive way than Justice Emmett. 

But, with respect, it is difficult to understand how his Honour sought to draw conclusions from the approved form and it was not in evidence before him.  If your Honours go over to page 134, line 40, your Honours will see that he refers to the fact that there was no coat of arms on the document.  But that is simply an error.

If your Honours go to the document I was just showing the Court at page 261, there is the external envelope that was sent to the electors. That has the Commonwealth coat of arms on it.  That is the one in Robertson.  If your Honours look back at page 157, your Honours will see a clearer picture of the coat of arms, the Commonwealth coat of arms, there is the envelope.  What the ruse was was to convince electors as soon as they got this material, three documents, not one as Justice Hayne thought – three documents, two envelopes and a pamphlet – was that this is an official communication affiliated with the Commonwealth, not a particular candidate, that all you had to do was fill in the form for early voting, instead of attending on polling day like everybody else, and then send it to the Robertson Postal Voting Centre, not the DRO.

As a result, the candidate was not, to use the words which your Honours has dealt with in great detail and, with respect, in an enlightening way in Rowe’s Case, directly elected.  Interestingly enough, your Honours, in the reform bill that was put before the Parliament in June of last year which lapsed before the election, somewhat ironically, they addressed this very problem, and we have set out the reform bill provisions, and it was never addressed.

CRENNAN J:   Where in the petition do you deal with the effect on the outcome of the election of these matters?

MR KING:   There are two answers to that.  If I can take your Honours firstly to page 22, which is the Lindsay petition.  In paragraph 6 the petition details the documents that I have just taken your Honour to, that is three documents not one as, with respect, Justice Hayne thought, that is, two envelopes plus a pamphlet.  But in line 4 your Honours will see

influenced by electoral matter entitled “To the Householder” -

Now, electoral matter is defined in the Act as pamphlets or other material designed to influence or calculated to influence the elector. Then if your Honour goes to paragraph 8 your Honour will see there that:

2504 persons who had received the adapted ALP form influenced thereby apparently completed one of the duplicate sections –

and then sent them off to the successful candidate.  Then what happened is that the form was cut up, it is alleged in 9 and 10, and then lodged with the DRO, not by the elector but by the candidate.  But critically, and this harkens back to some observations of Justice Gaudron in Webster, in 12 and 13 what is alleged is that none of the applications in the adapted form, or in the altered form, “was an application  . . . in the approved form”.  Then in 13:

Each application made . . . was invalid and each vote cast by each applicant as a consequence of the application was invalid.

Those are the words Justice Gaudron used in Webster.  Then directly on the question that your Honour Justice Crennan asked, if your Honours go to paragraph 20:

In the premises the ballots cast by the applicants using the adapted ALP form or the altered ALP form – 

and those words are defined to show they are different from the approved form –

were cast in contravention of the Act and/or as the consequence of an illegal practice . . . whereby the election was likely to be affected such that the said votes should have been excluded from the scrutiny and the count whereby this Honourable Court should order a recount excluding the said ballots or declare the election of the First Respondent void –

Your Honours, in the case of Webster v Deahm, Justice Gaudron used those very words, that is “whereby the election was likely to be affected” as the sufficient words dealing with the issue of affectation.  In our respectful submission, at the very least in terms of both the factual questions and the legal questions, they were matters which should have gone to trial. 

What happened was when the petitions were filed in the Court, Justice Gummow referred it to the Federal Court for trial.  But the respondents immediately filed summary dismissal applications and it never went for trial.  That is the regrettable aspect of the case.  But we respectfully submit that no delay can be sheeted home to the applicants.  They have acted expeditiously all the way through to bring these matters to the public attention.

CRENNAN J:   Justice Hayne deals with this at page 132, about line 34:

If, as Mr Green contended in the petition, none of the disputed postal votes should have been counted –

So his Honour is dealing with the points you have just taken us to.

no fact was alleged, as required by ss 355(a) and 362(3), that showed that the result of the election was likely to be affected, or that it would be just that Mr Bradbury should be declared not to be duly elected or that the election should be declared void.

You see, that is the underpinning of the finding that the petition has not disclosed a case fit to go to trial.

MR KING:   There are two problems with that, your Honour.  If I can take you back to 128, line 39.  Justice Hayne had before him evidence that the margin was 1,026 votes, more than 1,000 votes difference between the number of invalid votes cast and the winning margin.  But there is another problem, and this is why Justice Gaudron expressed herself in the way she did, with respect, correctly in Webster, that it is not a relevant proposition to set out in a petition the precise differences in relation to votes cast which are disputed. 

What one needs to allege is that the result of the election was likely to be affected, which is what both the evidence and the petition alleges.  The reason for that is, as your Honours can imagine – let us assume we have seven candidates in a preferential system of voting.  If there are two votes difference in the first count between, say, the sixth and seventh candidate, that may in fact lead to a 5,000 vote difference on the final count. 

What is critical is the fact that there are invalid votes cast which impact upon the likelihood of result, but the second problem, with respect, with the dictum at 132, line 35, which is taken from Justice Emmett’s observation, is that it requires a petitioner to prove, contrary to all practice in petition matters, as to the intention of the voters had the votes cast been valid.  In other words, not only does it require an allegation of and proof of a difference in winning margin, but also showing their preferences, because otherwise, according to Justice Emmett, the result of the election was not likely to be affected.  But with the greatest respect, that is totally contrary to, as we have said in our submissions, learning and law in relation to elections because it breaches the secrecy of the ballot.

If your Honours look at section 360(1)(iii) of the Act, which is set out in our material, your Honours will see that the information that the Court of Disputed Returns may address and the documents that may be inspected – in this case that is what we sought but we were never permitted to do that by Justice Emmett – are all information relevant except ballot papers. The reason that ballot papers were excluded from consideration by the Court of Disputed Returns is to protect the secrecy of the ballot, to protect and – otherwise one would have to call 2,504 persons to show what their preferences were and how otherwise it would have been invalid.

Justice Isaacs in the leading case of Kean v Kerby pointed out, that it is sufficient to show that there were votes that were invalid that might have made a difference, not that would have made a difference or did make a difference, otherwise one breaches the secrecy of the ballot.  Those are our submissions, your Honours.

FRENCH CJ:   Thank you.  The Court will adjourn briefly to consider what course it should take.

AT 11.33AM SHORT ADJOURNMENT

UPON RESUMING AT 11.40 AM:

FRENCH CJ:   I will invite Justice Crennan to deliver the decision of the Court.

CRENNAN J: These matters are ex parte applications for leave to appeal from judgments of Justice Hayne. In each matter, Justice Hayne dismissed an application for leave to issue a proceeding following a direction made by Justice Heydon under rule 6.07 of the High Court Rules 2004.

Each applicant was an unsuccessful candidate in the federal election held on 21 August 2010.  Each applicant sought, amongst other things, an order of certiorari to quash orders of Justice Emmett who dismissed election petitions which had been issued by each applicant in this Court (sitting as the Court of Disputed Returns) and referred to the Federal Court by order of Justice Gummow.  Mr Freemantle’s petition was substantially identical to that of Mr Green. 

Section 355 of the Commonwealth Electoral Act 1918 (“the Act”) relevantly requires that an election petition “set out the facts relied on to invalidate the election or return” (section 355(a)) and “set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief” (section 355(aa)).

In his reasons for judgment dismissing Mr Green’s petition, Justice Emmett concluded “that the petition in its present form does not comply with section 355(a) or section 355(aa)” of the Act. His Honour went on to decide, correctly, that “there is no dispensation under section 358(2) that could overcome the deficiencies in complying with section 355(a)”. His Honour dismissed Mr Freemantle’s petition for the same reasons.

Three allegations in the petitions were pressed before Justice Hayne: allegations of contraventions of sections 184 and 327 of the Act and errors or omissions by the Divisional Returning Officer (which depended on the alleged contraventions of section 184). His Honour found that the petitions as constituted disclosed no arguable contraventions of the Act.

It was contended in the submissions in support of the applications for leave that a proceeding within the original jurisdiction of this Court, in which constitutional writs are sought, should be permitted to be filed without any assessment of whether or not there is a “real question to be determined” in accordance with the relevant principles set out in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. We reject that submission, more particularly since the structure of the Act, and its provisions concerning election petitions, are directed to ensuring that decisions about election results need to be determined “as quickly as is reasonable in the circumstances” (section 363A).

Both petitions in their present form fail to comply with section 355(a) or section 355(aa) of the Act in that it is not demonstrated that allegations of non‑compliance with the Act in the applications for postal votes resulted in an effect on the postal votes as cast. It would be vexatious in the technical sense to allow the proposed proceedings to be issued in reliance on the petitions in their present form. Accordingly, there is no reason to doubt the correctness of Justice Hayne’s conclusions in both matters. For these reasons, we refuse leave to appeal in each matter.

FRENCH CJ:   The Court will now adjourn to reconstitute.

AT 11.43 AM THE MATTERS WERE CONCLUDED