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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2016] HCAB 4 (25 May 2016)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

Summary of New Entries

1: Cases Handed Down

Case	Title
Day v Australian Electoral Officer for the State of South Australia & Anor; Madden & Ors v Australian Electoral Officer for the State of Tasmania & Ors	Constitutional Law
Bell Group NV (In Liq) & Anor v State of Western Australia; WA Glendinning & Associates Pty Ltd v The State of Western Australia; Maranoa Transport Pty Ltd (In Liq) & Ors v State of Western Australia & Ors	Constitutional Law
Nguyen v The Queen	Criminal Law
Attwells & Anor v Jackson Lalic Lawyers Pty Limited	Negligence
Badenach & Anor v Calvert	Negligence
Military Rehabilitation and Compensation Commission v May	Workers Compensation

2: Cases Reserved

Case	Title
Murphy & Anor v Electoral Commissioner & Anor	Constitutional Law
Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia	Criminal Law
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor	Equity
Hall v Hall	Family

4: Special Leave Granted

Case	Title
Simic & Ors v NSW Land and Housing Corporation & Ors	Contract
The Queen v Baden Clay	Criminal Law
Hua Wang Bank Berhad v Commissioner of Taxation	Taxation
Bywater Investments Ltd & Ors v Commissioner of Taxation	Taxation
Blank v Commissioner of Taxation	Taxation
Comcare v Martin	Workers’ Compensation

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the March 2016 sittings.

Constitutional Law

Day v Australian Electoral Officer for the State of South Australia & Anor; Madden & Ors v Australian Electoral Officer for the State of Tasmania & Ors

S77/2016; S109/2016: [2016] HCA 20

Judgment delivered: 13 May 2016

Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ

Catchwords:

Constitutional law – Election of Senators – Validity of provisions of Commonwealth Electoral Act 1918 (Cth) as amended by Commonwealth Electoral Amendment Act 2016 (Cth) – Whether provisions for voting above or below dividing line on ballot paper prescribed more than one method of choosing Senators contrary to s 9 of Constitution – Whether indicating vote for party or group above dividing line contrary to requirement in s 7 of Constitution that Senators be "directly chosen by the people" – Whether prescription of "Droop quota" resulted in effective disenfranchisement – Whether instructions on ballot paper infringed implied freedom of political communication or system of representative government.

Words and phrases
– "above the line", "ballot paper", "below the line", "directly chosen by the people", "dividing line", "Droop quota", "free and informed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCAB 4
Decision Date

CaseChat Overview and Summary

The applicants, the Electoral Officers for the States of South Australia and Tasmania, challenged the validity of provisions in the Commonwealth Electoral Amendment Act 2016 (Cth), which amended the Commonwealth Electoral Act 1918 (Cth), in the High Court of Australia. The applicants argued that the new voting system for the election of Senators, which allowed voters to vote above or below a dividing line on the ballot paper, prescribed more than one method of choosing Senators, contrary to section 9 of the Constitution. They also argued that the system did not require Senators to be directly chosen by the people, contrary to section 7 of the Constitution, and that the Droop quota resulted in effective disenfranchisement. The applicants further contended that the instructions on the ballot paper infringed the implied freedom of political communication or system of representative government. The High Court dismissed the application with costs. The Court held that the new voting system did not prescribe more than one method of choosing Senators, as it allowed voters to choose either above or below the dividing line, but not both. The Court also found that the system did require Senators to be directly chosen by the people, as it allowed voters to choose their preferred Senator or party. The Court rejected the argument that the Droop quota resulted in effective disenfranchisement, as it was a mathematical formula that ensured a fair distribution of votes. Finally, the Court held that the instructions on the ballot paper did not infringe the implied freedom of political communication or system of representative government, as they were necessary to ensure a fair and informed vote. The Court's decision upheld the validity of the new voting system for the election of Senators.

Orders