Hudson v Lee

[1993] HCATrans 207

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S60 of 1993

B e t w e e n -

ROBERT JAMES NEILSON

HUDSON (JNR)

Petitioner

and

MICHAEL JOHN LEE, MP

First Respondent

and

THE AUSTRALIAN ELECTORAL

COMMISSION

Second Respondent

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 1993, AT 2.17 PM

(Continued from 7/7/93)

Copyright in the High Court of Australia

Hudson	17	30/7/93
HER HONOUR:	Yes, Mr Hudson?	You appear again.

MR R.J.N. HUDSON:  With the Court's indulgence.

HER HONOUR:  You do not need any indulgence, Mr Hudson. You

are here as of right. It is the others who need

indulgence.

MR J. McCARTHY, QC:  I seek leave to appear for the first

respondent. (instructed by McClellands)

HER HONOUR:  Yes. You have been granted leave, have you

not? I think you have not been granted leave, have

you, Mr Sackar?

MR J. SACKAR, QC:  No, I have not, Your Honour. I seek

leave to appear for the Australian Electoral

Commission. (instructed by the Australian

Government Solicitor)

HER HONOUR:  Yes. Now, what do you say to that? Do you

object to that again?

MR HUDSON:  I object very strongly under the rules of the

petition procedure and the Electoral Act,

Your Honour. It states quite clearly in there that

the only counsel or solicitor to be had is by the

grace of the Court or by all parties in agreeance

and I feel it is just a little unlevel playing

field just to be on my own here and daunted by

these team of people on my right and I would ask

the Court to either adjourn today and let

Mr-Michael Lee come in at a later date on his own

or just - I do not know what other side you can

take from that, Your Honour, but I do strongly

object under the Electoral Act that I have got to

contend against such a barrage of people,

Your Honour. I do not have their expertise or the knowledge that these gentlemen and ladies have - I

should say, "ladies and gentlemen". So, that is

one thing I would ask.

HER HONOUR:  Yes. Well, Mr Hudson, there seem to be

somewhat complicated issues raised in consequence

of your petition and I would propose to continue

the leave to Mr McCarthy and to grant leave to

Mr Sackar.

MR McCARTHY: If Your Honour pleases.

MR SACKAR: If Your Honour pleases.

MR HUDSON:	Can I ask one question, Your Honour?
HER HONOUR:	Yes.

Hudson 18 30/7/93

MR HUDSON:	I am still a little confused. Today is to hear the remainder of my asking for the waiving of (3)
and the notice of motion?

HER HONOUR:  Yes. Would it be more convenient to hear their

notice of motion? If their notice of motion
succeed - their notices - there are two, are there

not - succeed, any other questions are academic.

MR HUDSON:  I see.

HER HONOUR: That is as I see it. Is it - - -?

MR HUDSON: Well, I would like to put a few points up. I

will be given time to debate this, in other words?

HER HONOUR: Certainly, yes.

MR HUDSON: Firstly, I would like to make you aware,

Your Honour, that there has been another affidavit

filed in the Registry this morning.	You have a
copy of it before you.	I believe the Clerk has

brought it in for you, Mr Ryan.

HER HONOUR:  I think that is right. Can you tell me what it

is about?

MR HUDSON:  And I would like to give one to each of the

gentlemen. It is in relation to your orders to

really specify things and I have done that.

HER HONOUR:	Yes.
MR HUDSON:	I have now specified that:

I ROBERT JAMES NEILSON HUDSON (Jnr), herein

the petitioner, alleges that the first

respondent MR MICHAEL JOHN LEE MP did on or

about 3 March 1993, contravene section 352(1)

of the Commonwealth Electoral Act 1918, as per

"ILLEGAL PRACTICE" means a contravention of

this Act or Regulations -

and section 4 of that affidavit:

I ROBERT JAMES NEILSON HUDSON (Jnr), herein

the petitioner alleges that the first

respondent MR MICHAEL JOHN LEE MP, did on or about 3 March 1993 contravene section 352(1)

of the Commonwealth Electoral Act 1918, as per

"UNDUE---- INFLUENCE" means a contravention

of section 327 of this Act or section (28) of

the Crimes Act 1919.

And it just goes on, as you can read there:

Hudson 19 30/7/93

FACTS SUPPORTING 3 and 4 above have been filed

by the petitioner herein at the SYDNEY OFFICE

of the HIGH COURT of AUSTRALIA - - -

HER HONOUR: Well, what are those facts? Are those facts

relating to the use of the electoral allowance?

MR HUDSON:  Yes. Well, it is in the previous affidavit,

Your Honour.

HER HONOUR:  Is that the only matter you rely on, the use of the electoral allowance to post the letter?

MR HUDSON:  I have a copy of the letter. The letter that I

received on or about 3 March is the basis of my

allegations. I have postal receipts and - - -

HER HONOUR:  Yes. But leave aside the question of how you

prove it for the moment, is that your only

allegation?

MR HUDSON: Just the postal allowance, Your Honour.

HER HONOUR:	The improper use of the postal allowance.
MR HUDSON:	Improper use of the post and all I am asking is that - be given the chance for the petition to be
heard on behalf of myself and the community out
there, Your Honour.
HER HONOUR:	Yes. Well, you will certainly.- well, I do not

know about that in this respect because what is

said against you is that that could not possibly

amount to illegal practice or undue influence under

the Electoral Act.

MR HUDSON:	I would argue that in layman's terms, any way, Your Honour, the point that using public taxes to fund, one, a personal campaign and also the Labor
Party's campaign for re-election - because the
gentleman is a Labor P~rty member - in fact, I was
up until 1990.  I was the president of the Labor
Party up that way. I find that that, in layman's terms, puts him on a party/political business for starters, just being a sheer member. All his signs
had "Michael John Lee, party: ALP" on them, and I
feel that the letter that was sent out - if the
gentleman had put in that where it says, "The Labor Party is committed" - if he had put the words in
there, "I am committed", and in the second paragraph down, I think it says something there
about Labor, if he had put in there that, "I,
Michael Lee", I would have no arguments with it.
But at the moment when I saw it on the_ day I got it
out of the letter box I realized that there was a
problem with it as far as I was concerned.

Hudson 20 30/7/93

From that time onwards, I then went off and I

spoke to Mr Paul O'Neill in Canberra, and the first

day was rather an amicable talk. We had about half

an hour or more. And then when I kept pursuing the matter, because I had come across something similar

in a council election and I just could not believe

that you could use public taxpayers' moneys without

the public knowing for party campaigning or your

own personal campaigning either, and I just kept

asking and asking and every time I got told, "No",

I dug my heels in a bit deeper and I believe I was

misled totally in the first up and. that is why my original petition did not have in it the absolute

facts that I am putting to you now.

I was not told that there had been a change in the entitlements in November 1992: tribunal No 10

determination, and when you read through that
determination, Your Honour, it is no different to

the 1991 one except in the exact amount of money.

And in a letter that was also sent out to all the

members signed here by Julie McKinnon, it states in

here:

As I mentioned before, senators and members

should note that campaigning for their own

re-election is regarded as part of electorate

business.

And then a bit further up it also states that:

Electorate business includes campaigning for

re-election provided that the material to be

posted relates to the re-election of the

individual senator or member.

When I say the individual senator or member, then

it is directed to the individual constituents.

Well, this letter - - -

HER HONOUR:  Mr Hudson, would it be convenient, do you

think, if we heard from Mr McCarthy and Mr Sackar

their argument that that is not a matter which

comes under the Electoral Act?

MR HUDSON:	Yes.
HER HONOUR:	Then you can answer that and also deal with the question whether we need worry further about
publicizing the petition further.
MR HUDSON:	I feel, also, Your Honour, I have carried out

your instructions to the seventh and I have

answered all those questions. I have got them in a

bit of detail here. If I get a chance to answer

that.

Hudson 21 30/7/93

HER HONOUR:	Would you like to deal with that now?
MR HUDSON:	Yes, I would, if you do not mind.
HER HONOUR:	Yes, all right.
MR HUDSON:	The affidavit - I have got to get the right

bundle back here - sworn 28 July 1993, in 6 and 7
provides facts as to the legal representation.

Well, we have just clarified that so we will drop

that one off.

Notice of motion dated 25 June 1993 asks

relief from.rule (3) which we will deal with a bit

later. All these facts have been widely

published, Your Honour. There are letters in there

from the AAP stating that they sent it out to some

60-odd. Their letter in there:

However, our usual practice with a story of

this nature would be to send it to all

metropolitan and regional daily and Sunday

newspapers in Australia -- about 60 newspapers

in all.

It would also have been distributed to a number of non-media clients.

And there is also a copy of the actual in that

affidavit that you have.

There is the other affidavit there where it

was in all the local papers, and I have produced

that. And I believe on the 3rd and the 4th, in the

two local papers it was put in there, and if I can

remember rightly Mr - the gentleman on my right

here at the last hearing said the legal people of

Mr Lee's had only been brought into this on the

last 48-odd hours. But in these paper

advertisements, Mr Lee is threatening me with libel

and I feel I have been intimidated from the word

"Go" on this one.

I have got four letters which I would like to

answer to after their two. And there are further

letters there, and I think we just should let

Mr McCarthy go on with it, I think.

I have also asked for a grant of relief under

section 358(2) of the Commonwealth Electoral Act

and that allows you, Your Honour, to grant me
relief from having to comply with 355(aa) wholly or

in part. So, I have tried to keep up with what you

have asked last time, and that is one thing.	I
will leave it at that for the time being.	Thank
you.

Hudson 22 30/7/93

HER HONOUR: Yes, thank you, Mr Hudson. Yes, Mr McCarthy.

MR McCARTHY:  Thank you, Your Honour. Your Honour, when the

matter was before you on the last occasion,

Your Honour gave directions that the respondents,

if they so wished, were to take out notices of

motion in relation to any orders that they may wish

to seek concerning the petition, it having been

foreshadowed to Your Honour that it was the

intention of the first respondent to seek to have

the petition no further proceeded with under

section 358 as a result of it not being in

compliance with section 355(a) and section 355(aa).

Your Honour set a programme in relation to

that and a notice of motion from my instructing

solicitors was filed on 26 July and should be with

the Court papers.

HER HONOUR:	Yes, I think I have that.
MR McCARTHY:	Your Honour also indicated on that occasion

that it would be of assistance to the Court and

hopefully to Mr Hudson if the respondents made

clear to Mr Hudson what were the grounds on which

it was proposing to proceed in the notice of motion

and to try and set out as succinctly as possible

to him what it was that was being said about his

petition and about the reasons why the Court ought

not to proceed with his petition.

There had been, just prior to the directions

hearing before Your Honour, a letter sent, and

Your Honour may recollect that there was some issue

raised by Mr Hudson concerning that as to whether

it had been properly addressed to him. As a

result, a further letter was sent on 23 July, and I

hand up to Your Honour a copy of that letter that

was sent to Mr Hudson.

I would maintain, Your Honour, that that

complied with Your Honour's direction, it having

set but in a fairly succinct fashion what it was

that was said by my attorney as to what were the

difficulties with the petition. Now, Your Honour,

there were as well - because I would like to rely

on some of this - the second respondent as well

filed a notice of motion in these proceedings

seeking similar orders to that which is sought in

our notice of motion. As well as that, Your Honour

- because it is relevant for some of the material

here - there were a number of affidavits filed by a

Paul O'Neill which made reference to the

Parliamentary Entitlements Act and to an affidavit

of Peta Dawson which made reference to the writs

and the voting and return for the seat of Dobell.

Hudson 23 30/7/93

HER HONOUR:  You do not need to worry about the formal

matters in these affidavits, do you?

MR McCARTHY:  Thank you, Your Honour. Your Honour, the

respondent's position is simply this, that the

petition, as it is said - if I could take

Your Honour to the letter of 23 July because

Mr Hudson has that with him. It is said that:

The petition does not disclose any facts in

support of the allegation made by yourself

that the First Respondent used

benefits/entitlements illegaily contrary to

the Parliamentary Entitlements Act -

There is then reference made to the fact that what

has been referred to, that was the schedules

et cetera, it then said:

the petition does not clarify precisely when,

how and where the postal benefit was used by

Mr Lee so as to amount to a breach of a

legislative provision you have referred to.

As such it appears to us that it does not

comply with the provisions of s.3SS(a) and

( aa) -

that is, the reasons why it would invalidate an

election or, indeed, why it justifies relief.

In the second paragraph on page 2 we make

reference to the provision which is quoted as not

being applicable to the 1993 election. We make

reference to what is the appropriate provision and

we give the background and details in relation to

the Parliamentary Entitlements Act and the

Remuneration Tribunal Act 1973. We say that there

has been a determination, which was sent, and that

the relevant determinations:

in this case are determinations No 13 of 1991

and No 10 of 1992. The latter of these two

determinations was applicable at the time of
the election and not the schedule referred to

by yourself.

And we enclosed copies. We then go on and say:

Your petition alleges that Mr Lee used

taxpayer funded benefits illegally for

party/political business. As has been noted

no facts have been given in support of this

contention -

and, Your Honour, we rely on that -

Hudson 30/7/93

and the schedule you have been referred to is

not applicable.

As well, Your Honour, we say that nothing that is

set out there or that has been referred to make

anything that was done by Mr Lee or is alleged to

have been done by Mr Lee illegal. The Act itself,

the Parliamentary Entitlement Act, simply confers a benefit or an entitlement. There is then reference

to the letter of Julie McKinnon, which was referred
to by Mr Hudson, as to what the entitlements were

under the heading of "Postage".

So, at that stage, Your Honour, what we say is that there has been no proper allegation of any

illegal practice which is the only matter to which

he had made reference. Secondly: that in the way

that it has been framed, there is no reference that

suggests that it could have affected the result of

the election and, thirdly, it makes no reference

therefore as to why it would be just in any

circumstances for the first respondent to have his

election to the Federal Parliament declared void.

In any event, Your Honour, we then go on and

say in paragraph 4 and, perhaps, depending on

Your Honour's view of this matter, this is either the beginning or the end of it, but when one goes

to the Electoral Act, Your Honour, it goes to

section 362, with which Your Honour is

becoming - - -

HER HONOUR:	I suppose they will change it by the time of the next election. This knowledge of numbers will
be of no use to me.

MR McCARTHY: Well, Your Honour has become a sort of a

frequent flyer now with 362(3), but what is

referred to there is, "any illegal practice" or

"ground of any illegal practice" and it is "illegal

practice" in the way that this petition has been
sent out.	He says that something is illegal and so
on.

Now, Your Honour, what I wish to draw

Your Honour's attention to is this: "illegal

practice" is a specific term with a specific

meaning under the Commonwealth Electoral Act and Your Honour will find that in section 352(1) and

the meaning of:

"illegal practice" means a contravention of

this Act or the regulations.

In our respectful submission, Your Honour, as a

consequence of that, even on the facts that are pleaded, there is no way that Your Honour could

Hudson 25 30/7/93

find that what Mr Hudson has alleged amounts to an

illegal practice for the purpose of the

Commonwealth Electoral Act and for the purpose of

section 355(a) because that is specifically what he

says it is not. He is alleging apparently some

sort of breach of another Act of Parliament in some

general sense. That allegation, Your Honour, could

not and does not amount to an illegal practice for

the purposes of the Act.

As well, Your Honour, we say, taking it

further, that there are no facts that are pleaded
or could be pleaded at this time that could amount

to bribery or corruption or attempted bribery or

corruption or any or undue influence and that no

allegations of that sort have been made in the

petition and nor would any allegation of that

nature by Mr Hudson be entertained by this Court at

this time.

So, consequently, Your Honour, we say that

what Mr Hudson alleges, if he alleges anything, can

only be an illegal practice. It cannot be an

illegal practice for the purposes of the Act

because he relies on some other Act. In any event,

the details that he gives in relation to this for

the purposes of whether he has made out facts to

invalidate the petition are not there and, further, that any other matters that he has sought to allege

in his other material do not meet those particular

arguments or those particular facts.

Your Honour, it is on those bases that we seek

orders in the notice of motion and, in particular,

that there be no further proceedings in this

matter.

HER HONOUR:  Yes, thank you. Now, Mr Sackar, do you have

anything to say to your notice of motion?

MR SACK.AR:  No, Your Honour, not really in addition to this.

There is another question which may be not appropriate to deal with at the moment and that is, of course, the question of whether the current

petition has been properly publicized.

MR McCARTHY:  No, Your Honour stood that issue down, had you

not?

HER HONOUR:  I thought I would hear your motion and then let

Mr Hudson deal with that.

MR SACK.AR:  Yes, quite. Thank you, Your Honour.

HER HONOUR:	No, perhaps you should mention that because the only other motion before me is Mr Hudson's motion
to dispense with publication whereas, of course,

Hudson 26 30/7/93

you say there was no compliance at all with the

service requirements.

MR McCARTHY: There is no, Your Honour, and I understand

that is Mr Sackar's position also at the present

time.

HER HONOUR: That being because - - -?

MR McCARTHY:  Your Honour, he has not complied with Order 68

rule 3. It is rule 3(a).

Now, Your Honour, I would only succinctly put,

if it is of assistance to Your Honour and to

Mr Hudson, our position as it was on the last

occasion and is now and that is simply this, that

the Act and the rules are of such a nature that

Your Honour would have to find within those rules a power to dispense with the rules and not find it in

the High Court Rules elsewhere.

A similar position existed in relation to the

Supreme Court and the Court of Disputed Returns.

Though he did not find finally, Justice Gleeson, in

a decision that I handed into Court on the last

occasion, fairly clearly raised the issue as to

whether there is any dispensing power under the

Supreme Court Rules. We would submit, Your Honour,

that the rules of this Court of Disputed Returns
bears the same reading and that for the reasons of

public policy that are set out by

Chief Justice Gleeson, Your Honour would, firstly,

read the rules in that way, that is, if it became
finally relevant, that Your Honour would find that

there is no power in a Court of Disputed Returns to

dispense with the gazettal publication of the

petition; that the requirement of the rules would

seem to be that what is the intendrnent is that the

Australian public, through the most official organ of the Australian executive be informed in general

division who are to be notified of the details of a	and ha\~ a permanent public record of a petition. It is not only just those within an electorate or a
petition but the Australian Commonwealth or the Australian electorate as a whole that are to be
notified and that that notification takes the form
of an entry in the Gazette.
Your Honour, in our submission, as those are the public policy reasons, that Your Honour would not as a matter of discretion, if Your Honour was
minded to see - well, before even Your Honour went
to a question of law, that as a matter of discretion Your Honour may believe that in the facts - we submit, would find in the facts of this
matter that the Court of Disputed Returns in the
nature of the rules about publicity that have been

Hudson 27 30/7/93

established, it is a requirement that has not been

met and that Mr Hudson ought to meet that and for

that reason his motion ought to be dismissed or,

alternatively, Your Honour, that if Your Honour

considers that you are pressed to a final
determination of law, and we submit, Your Honour,

it may be appropriate, as one of the small matters

to come out of this case, that there could be a

definitive ruling, in our submission, Your Honour,

that those rules are such that the Court cannot

dispense and that the implication of

Chief Justice Gleason's decision would be made

manifest, if that is the way it would be,

Your Honour, in Your Honour's judgment.

Your Honour, that is our submission in relation to Mr Hudson's motion.

HER HONOUR:  Yes, thank you.

MR SACKAR: There is nothing, if Your Honour pleases, that

we wish to add to that except to say that the rule

appears to make it mandatory that the Government

Gazette be the vehicle by which the petition is advertised and, in the light of that rule - and we say the underlying policy for it, no occasion would arise to, we say, relieve the petitioner of compliance, notwithstanding the fact that I expect that Mr Hudson will certainly suggest by reason of some of the materials he has annexed to the

affidavits, that there has been a rather diverse

dissemination of the material in a number of

different sections of the media. That is really

not to the point, and it would appear to be

mandatory that it be the Gazette, and he has not

done so. But we do not wish to add any more at

this stage, Your Honour.

HER HONOUR:  Thank you. Yes.

MR HUDSON:  Just on a point with the notice of motion,

Your Honour. A notice of motion is usually a form

of some description like that, signed and dated, in

my belief, and served on myself, is it not? Well,

put it another way: that is not a notice of

motion, as far as I - I have got four of those with

me, and that is the latest one that I received this

week, and it has no date on the notice of motion

that accompanies it; so as far as I am concerned,

Your Honour, that is not a notice of motion for dismissal of this issue.

HER HONOUR:  I think what you have to look at, Mr Hudson,

are two documents like that.

Hudson 28 30/7/93

MR HUDSON:  Yes, well, that is what the gentlemen have sent

me, and that is all I got and I received that

on

HER HONOUR:  What is on the front of that document?

MR HUDSON: That is a letter from McClellands, the

solicitors, and that was the letter that

Mr McCarthy was just referring to, and I received

that on Wednesday, the 28th of this month. That

has nothing, and none of them - I will say again,

Your Honour, none of them has the date on the back filled in and none of them have the date or time on

the front of them. So, how can that - I received a

proper one from the Government Attorney-General's

Office; that was all above board, but this one from

these people is totally - and I asked that it be

dismissed on that ground.

HER HONOUR: Well, we will proceed on the Government

Solicitor one, the Australian Electoral

Commissioner's one in that case.

MR HUDSON:  Now as far as I am - the other bit - I have

submitted to you papers - - -

HER HONOUR:  Are you going to add to the Government

Solicitor's motion.

MR HUDSON: That I just got?

HER HONOUR:  No, the one from the Government Solicitor that

was dated and signed - - -

MR HUDSON: It was just not dated. It was just signed -

HER HONOUR:	No, the one from the Government Solicitor.
MR HUDSON:	Pardon?

HER HONOUR:  You said you got one from the Government

Solicitor.

MR HUDSON:  Yes, I have got that one here, Your Honour, and

that is all legal and above board as far as I

have - - -

HER HONOUR: Well then, do you have the answer - - -?

MR HUDSON:  I do not mind anything that is done legally,

Your Honour.

HER HONOUR:  Yes, well do you have any answer to the

submissions which Mr Sackar adopted, they being the
submissions made by Mr McCarthy in support of his

notice of motion?

Hudson 29 30/7/93

MR HUDSON:	Yes, I do have, Your Honour.
HER HONOUR:	Good.

MR HUDSON: This item, albeit was published in the Terrigal

Times - - -

HER HONOUR:  Before you go to publication, do you have

anything to say to the submissions that an

allegation of breach or of the use of the electoral

allowance to send out the letter simply does not

fall within the Electoral Act: it simply not a

ground on which to challenge an election?

MR HUDSON: Well, I believe they are totally wrong,

Your Honour. I have the 1990 copy of the

Parliamentary Act and it says definitely no party/

political business, and what I am relying on is the

actual letter that was sent out, using his

electorate office, and in that letter, Your Honour,

that is addressed to me, and it reads:

Dear Mr Hudson,

Before you vote on 13th March I would like to

ask you to think about your choice.	It's a
choice between Labor's -

and I will reiterate again, Labor's -

commitment to creating new jobs, or

Dr Hewson's new tax, the GST.

This election is also about change.

Labor is committed to change that will help

everyone ..... training and education for our

new university and TAFE campuses like

Ourimbah ..... the development of our industries

and building on Australia's strengths -

Dr Hewson is committed to change for the sake

of change.

Unemployment is too high. But that shouldn't

mask the facts that there are more than

1.5 million more people in work than nine
years ago, there are more students in

universities than ever befor~, inflation is

the lowest for 30 years, last year Australian
industry manufactured more goods than ever,

and we are competing internationally and

holding our own in an uncertain world.

I will not make any remark about that:

Hudson 30 30/7/93

Dr Hewson's plan is an experiment that would

change the tax system, cut wages and increase

the cost of health care. His changes would

hurt many to help a few.

If you choose to vote for Dr Hewson, you will be voting for:

GST, not jobs

A tax on day to day living, even Council
water, sewerage and garbage rates

Lower wages and higher prices.

Industrial chaos, trauma and confrontation

Lower -levels of government services, like

health, education and law enforcement

An uncertain future -

And the last line is a bit dubious, in my words,

too, Your Honour:

I would not ask for your vote if I did not think it was the best way to vote for our

community and the future.

Now, I terminate that as following on from the rest of the Labor's word; he is asking you to vote for

Labor, and then on the end of it - - -

HER HONOUR:  Now, what do you say brings that within the

Electoral Act?

MR HUDSON: Well, what the gentleman has done here: sends

something like 42,000 of these letters out to each

and every one, or a couple of letters to each home,

in other words - I think there is about 29,000

homes in the area; I could not remember right off

the top - and by using his government allowed

postal allowance - and it states in there that you

are not allowed to use it for party/political

business, and I am saying that by using that annual

postage allowance for this type of thing, that is
party/political business and that letter is, as far

as I am concerned, nothing but. So therefore I

find, in my layman's terms, that he has breached

the postal allowance part and he is - - -

HER HONOUR:  Yes. Now let that be assumed. The next

question is:  how do you make that a fact relevant

to the election? You see, if you look at
section 355(a), how do you make that invalidate the

election, or how do you say it constitutes an

illegal practice, or even undue influence?

MR HUDSON: Well, I say it constitutes the Electoral Act by

means of using taxpayers' funds without them

knowing for the postage of these letters. Now in

there - I will go back again - it excludes party/

Hudson 31 30/7/93

political business. And what was the last thing

you asked me, Your Honour?

HER HONOUR:  How does it constitute an illegal practice as

defined by the Electoral Act?

MR HUDSON: Well, I find it is illegal to use taxpayers'

funds to put out for party/political business. Now

I will go back again and I will say - I will read

this letter in a slightly different form - and I

will not go right through it, I will just come to

the words where - - -

HER HONOUR:  No, I do not think it is necessary to read the

letter, because I am aware of what is in the
letter. The question is: how do you connect the

letter to any matter which allows the election to

be invalidated?

MR HUDSON: Well, what I did do, Your Honour, I went to the

Freedom of Information Act, copies of which are in
front of Your Honour, and I asked for copies of

Mr Lee's postal allowances during the period of the

election and he had the right then to write back to

them, which he did, and he tried to have them exempt from disclosure. Now, if you have got

something to hide you do not usually go to those

lengths, but that is as for everybody's knowledge.

There is the actual postage, and it is marked on

the 3rd, the same date as the letter, and that is

what I have tied it in with, to that, and also it

goes back here. He has also charged two amounts to

the Department of Arts and Administrative Services
because, apparently, from what I can see, he did

not have sufficient credit on his franking machine;

so he is charged $2047.46 and another $805.22 to

the - they are the two amounts marked on the

debitor's ledger.

election. They were the days that show up on his So that is how I have tied it into the postal and that letter came to us and it was dated

on the 3rd and I received it on or about the 4th or

the 5th - that many things have happened since -

and I have tied it in, because what happened: I

contested the Gosford City Council elections,

Your Honour, and in that there was use of the local

bush fire brigade, which is funded jointly by the

State government and the Gosford City Council.

Now, I found that certain persons within - I do not know whether I should mention names or not or just

leave it at that -

HER HONOUR: Perhaps better not to.

MR HUDSON: All right. But that particular person used that

to man his polling booths, the flashing red lights,

Hudson 32 30/7/93

the tankers, the white uniforms, the crown on the

sleeve and the hat and they were all out manning

the polling booths. Now that is using a State and

local government funded thing and that is where I

got the knowledge from. The moment I saw the

letter I knew that there wasa - just was not and I

could not do anything about it at that time so I

just put it aside for now. Now, that is where I

believe that this sort of thing should not happen.

I also believe that there was a sum of some $2 million spent in New South Wales through

Australia Post.	Now I cannot substantiate that at
this moment.	It is way out of my league at this

stage, financial-wise, to try and substantiate it,

but I do believe that it can be substantiated

through Australia Post.

Also I refer this back to Charles Blunt - a

precedent set back in 1990 with a

Mr Charles Blunt - and, if it pleases Your Honour,

I also took out another affidavit this morning; I

did not think I would need it, but it is - I went to the library and got hold of a copy of that bit

about Mr Blunt, basically just to show that I am

not talking through my hat. It was just to prove

something did happen back in 1990, and also with

that affidavit is a stat dee from a local lady up

there who visited Mr Lee's office on

22 February 1993:

I personally called in to Michael Lee's

electoral office at The Entrance to collect a

copy of a draft policy for Commonwealth

responsibilities in a coastal zone which his

office obtained for me at my request. While I

was waiting I asked the lady at the front desk

if Michael was in the office and she said,

"No". I then asked her, where Michael's

campaign office was and she said they were

running the campaign between this office and

the State office down the road.

I think that is an illegality on its own.

She was referring to the office of Mr Grant

McBride, State Member for The Entrance.

And I, also through the Freedom of Information Act, sought copies, but that is a different matter - - -

HER HONOUR:  That is a different matter. That is not

remotely involved in your petition, Mr Hudson; not

remotely.

MR HUDSON:  No, fair enough, but basically all I did it was

to be able to prove that there was a precedent set

Hudson 33 30/7/93

of some description with Mr Charles Blunt. It

makes quite interesting reading. And as far as

this letter, sent out by Julie McKinnon,

Your Honour - it states in there - I do not see

Mr McClure around - yes - with the courtesy of
Mr McClure he sent me up a copy with the notice of

motion of the remuneration tribunal, determination

No. 10 1992. Now, I have read through that and

nowhere does it state what is stated in this letter

that went out to all members and senators, the bit

that I will read out to you. The only difference

between that and the 1990 one is the amount of

money. The 1990 Entitlement Act,. I think it was

$9000; this one is $22,000, and that is the only

difference.

But in this letter sent out to all the

senators and members - I tried through
Mr Paul O'Neill to get some information from him

and I just ran up against a brick wall. All I got

was what I put in my original petition, and that was the only reason that it went that way. They would not give me any further - it was not until

the 3rd of last month that Mr O'Neill - - -

HER HONOUR:  Mr Hudson, I just want to be sure that you

appreciate that the application is not simply based

on your lack of particulars. It is based on the

proposition of law that, even if you establish

everything that you claim relating to the postage

allowance, it still does not justify a petition

under the Electoral Act.

MR HUDSON: Well, in this, as I have submitted to you, in an

affidavit on this week, Your Honour, under 358, I

think, you do have the power to waive

section 355(aa) of the Commonwealth Electoral Act

and that is - if you see fit that I have put my

case in a certain -

HER HONOUR:  Yes, but I want you to understand what the

argument against you today is, that even if I

exercise that power, completely in your favour, it

would not help because your petition is fatally

flawed in that the use of the postage allowance

simply has no relevant connection with the election

and is not a matter on which the election can be

invalidated.

MR HUDSON: Well, I beg to differ.

HER HONOUR: 

Yes.

MR HUDSON: 

If you use that postal allowance according to

the 1992 determination, Your Honour, if you use it
according to that and if you use it for party/

political business, that is a contravention of that

Hudson 

30/7/93

Act. It is a contravention of that and that is

tantamount to me walking into a bank with a gun and

saying, "Give me $10,000", or whatever.	I have
committed a criminal offence.	By taking money and

using it for party/political business is a crime.

You are stealing money without the people knowing

and that is getting down to the broad .... of it and

that is what I am saying.

Now, whether Mr Lee did it unintentionally or

not, I do not know, but this letter sent out
states, "Electoral business, including campaign for

re-election, provided that the material to be

posted relaies to the election of the individual

senator or member".	Now that letter does not -
only his name on the top and on the bottom.	The
basis of the letter is strictly purely party/
political business.	Now in there - I went through

that with a fine tooth comb and there is nothing in

there that states that you can do that, and then on

travel allowance the determination specially

excludes party business, and then we come over to

the back then, and there is an interesting little

bit:

As I mentioned before, Senators and Members

should note that campaigning for their own

re-election is regarded as part of electorate

business.

Well, I looked through all of that.and there is

nothing in that postal allowance that tells you you

can use that for your own personal use or for

party/political business, and that is what I am

saying all along: it is illegal, as far as I am

concerned, and what that Act says in there, to use

public funds for party/political business.

HER HONOUR:  Yes, well I understand it, the submission, yes.

MR HUDSON:  I know my petition was fundamentally flawed, and

I think it was designed in that direction,

Your Honour, by certain persons in Canberra so that

I would not get to the truth of the matter. And I

would also say, "All right, why did Mr Lee try to

have these postal receipts stopped from coming out?

Why did he try to declare them exempt? Why is he

trying to now knock out this on a technicality?

What does he have to fear?" If the man is

confident that he has done nothing wrong; why does

he not allow it to proceed to its end and have his

good name cleared. The man has been in Parliament

for two years. He has represented us overseas; he

has been on many committees and I think he is quite
capable enough of coming and representing himself,

so, if he has done nothing wrong, again, I

reiterate, why is he afraid to let it proceed past

Hudson 35 30/7/93

this point irrespective of the technicality of

that? And that is all that has been knocked on at

this stage is a technicality, and I would ask

Your Honour to be fair to the community and fair to

the future voters of all persuasions, not just
independents, who I represent, but to future Labor,

Democrats, Liberals, National Party, that we get a

fairer voting system.

That is what I am basically pushing for

because I - and where it has had undue influence it

has got into every home, where I could not. I did

not have the government's tax money there to get me

to put up for that purpose and that is where I call
undue influence and I believe the illegal part -

and I go back to it again - he has used government

funds, which are taxpayer's funds, for his own

political use and for the ALP's use.	Now that is
about as layman's terms as I can put it.	I have

nothing against Michael himself personally, but on

the technical side of it I would like to see us get

a fairer election.

HER HONOUR:  Now, do you want to say anything about service?

MR HUDSON: Service?

HER HONOUR:	Yes, or publication in the gazettes.
MR HUDSON:	Yes, well in that I - do you mean the petition?
HER HONOUR:	Yes.
MR HUDSON:	I published that in the Tuggerah Lakes Times, as

you have it in front of you there, and it was

incorrectly - my name was left off, if I remember

rightly, and I went back to them and they

republished it for me, and then I was lucky enough,

the Australian Associated Press picked up on it and
they sent it out to some 60 regional papers, plus

too - they will not give the names naturally of the

non-commercial people. It was published in the

Sydney Morning Herald which you have copies of it

there. It was published in the Wyong Shire

Advocate; it was put over 2NC radio and I have

sworn that in an affidavit there; 2GO, that is a

radio station up in Gosford; Coastrock 103, that is

up in Gosford; and 2NC, that is a Newcastle FM

station I believe, and I believe it went across

NBM3, that is a television station. They rang me

and spoke to me and did an over-the-phone interview

with me, but I do not receive channel 3 on my set,

so I can never say I honestly saw it, so I did not

tell them that, but I did have several people ring

me and tell me that they had witnessed it. But the

rest of those I swore because I took part in the

Hudson 36 30/7/93

interviews, but the NBM I have just said "I

believe" in the affidavit.

So, all in all there are other papers that it

has probably gone out in, right around the country

that I cannot - again I do not have the money and

that is why I asked the people from AAP if they

could give me some sort of an example of where it

went so that I could have something concrete and

they were good enough just to send that letter I

read before and which I have a copy of. And

therefore it is widely known that there was a

petition put forward and not in the full details of

what is in the petition, although there is not much

in the petition, it is only a little one like

that, it was basically all covered; the facts of

what was in the - - -

HER HONOUR:	Yes.
MR HUDSON:	So, as far as I am concerned, even though there

may be that rule in the High Court that I have

asked for it to be waived, to save me - and to save

costs - to have to go to Canberra and have it

printed. I faxed down to them a copy of the

petition and you have in front of you there a copy

of their quote, which came back. It was $259. I

telephoned to speak to the gentleman down there and

then he said, "Well just fax it down and I will

have a look at it and I will send you back by fax a

quote on it", which he did. And then I did, with

the State one up here, I faxed the actual thing
down with a covering letter asking if they could

give me a quote and if they could give me some sort

of relief on it. And they contacted me by

telephone and stated they could not and said this

is how much it would cost, and I said, "Well, could

I have a copy of the quote please", and they said,

"Yes", and you have got that all in front of you by

way of affidavit.

So that is as far as trying to get those two

bodies to do something for me.	I am a
community-minded person.	I was accused of

pre-empting both Houses of State Parliament some

time ago over a beach issue up there. At the time

I was President of the Labor Party and we had the

local Labor fellow come along and help to save it

and then unfortunately they got put out in 1988 and

the Liberals were there in power then -

HER HONOUR: Well, I do not know that you should go into

this.

MR HUDSON:  No. That is fair enough. What I am trying to

achieve is this, that I am only interested in

community - this is nothing for my personal gain.

Hudson 37 30/7/93

The only gain I will get out of it is a little bit

of satisfaction knowing - and that is what I do for

all people, I do not get a financial reward out of

it and it is just pure satisfaction knowing that I have helped somebody, and that is basically what I

am doing here today too. So that is just me and I

have said a little bit about Michael because I have

known Michael for some time.

HER HONOUR:  Yes. That is all you wish to put to me, is it?

MR HUDSON: Well, you know, you have got it all in front of

you.

HER HONOUR:  I think that is right, yes. I think that is

correct. I have got it all.

MR HUDS_N:	I do not think there is much more I can say at this stage. All I would ask is that you do not
dismiss it on any technicalities or incorrect legal
procedures that have happened and that you give the
people and myself a chance to have it heard, the
petition itself.  I did not come down prepared
today for it to be heard in this extent. I just
came down thinking I was going to be on for the
waiving side of it, of the High Court rules. But
mostly what I have got here is probably what I
would put up anyway.  I could probably do it in a
bit better form.

HER HONOUR: Well, do you want to put - I am prepared to

give you - if you are prejudiced in some way by the

notice of motion, I would be prepared to allow

written submissions.

MR HUDSON:	A notice of motion for - - -?
HER HONOUR:	To strike it out on the basis of - - -
MR HUDSON:	I would like to move a motion that - you are

talking about these gentlemen's notices?

HER HONOUR:	Yes.
MR HUDSON:	On the grounds that this is all on behalf of the

community and myself, one, we do not have the

financial rewards to do it and we would ask that,

so that the community gets a fair and a bit more

equitable go at the next elections, that these

gentlemen's motions be struck out and let Mr Lee

come along and put his case and let us do it on a

equitable fair and level playing field.

HER HONOUR:  I am concerned only with any difficulty you

might have by reason of - - -

Hudson 38 30/7/93

MR HUDSON: Well, the difficulty I have, Your Honour, is

that, for a starters - - -

HER HONOUR:  You had better just listen: by reason of the

argument that use of the postage allowance does

not, in any event, entitle you to any relief

whatsoever under the Electoral Act. Now, I think

you have probably said everything that can be said

but if there is anything else you feel that you
would like to say on that issue, I am prepared to

allow you to put written submissions in.

MR HUDSON:  Your Honour, could we have this motion before

you here today struck out -

HER HONOUR:	No, you cannot do that.
MR HUDSON:	- - - on the grounds that we can have some

further investigations into the postal side of it

to find out just - - -

HER HONOUR:  No, you have to deal with the argument. I

think you have dealt with it at length.

MR HUDSON: That is for starters. As far as I am concerned,

that is not a legal notice of motion.	So I would
ask - - -

HER HONOUR:  No, but we will not worry about that one. We

will worry about the one from the Australian

Government Solicitor. That is a good one, is it

not? That is a good notice of motion.

MR HUDSON:  Yes, I accept that, Your Honour, and there is a

lot of good information in it and I would like to

see that one struck out on the grounds and, two, I

would like to see - I will go into this a bit

further. This is why I say - I did not bring it

down with me, but I have a letter from the

Electoral Commission.	I wrote to Mr Brian Cox
seeking some help and advice with it, and I was

told that the Australian Electoral Commission does

not hold statutory power over this issue, therefore

it had to be passed or it was then passed onto the

Department of Arts and Administrative Services for

their surveillance and looking after. So,

therefore, in one sense, I believe that when I

included the Australian Electoral Commission in my

first petition I thought that they would have to be

involved in it and I thought I was doing the right

thing by them, in a sense. So, I have now found

out that with this letter - and I wish I had

brought it - it states that Mr McClure, in a sense,

does not have any jurisdiction over this matter on

postal allowance.

Hudson 39 30/7/93

HER HONOUR:	Well now, what he is saying today - and I want you to be quite clear about this - is that I do not
have any jurisdiction over this. As the Court of Disputed Returns, I have no jurisdiction over it.

MR HUDSON: Well, I think you would have jurisdiction,

Your Honour, over the whole electoral bit. I do

not know about just one item. That was the only

thing that was ever sent to me by the electoral

people and that is the only way I have been able to

form some sort of basis for putting the argument.

And I will go back to saying again, I believe I was

deliberately misled in some of the material sent to

me to keep me off the track. And, as far as I can

see, I have complied with everything in there, with
the exception of what Mr McCarthy here says about

the petition itself, and I do not - admittedly

there is nothing in there about the postal

allowance, but under the actual determination No 10

and the Parliamentary Entitlements Act 1990, which

governs all of these things, it is an offence.

HER HONOUR: Well, I think I understand that sufficiently.

MR HUDSON:  I do not know that you do. I am battling, I

tell you. I will be quite honest with you. I am

not too well today.	I am a diabetic and I took
crook up the back of the room.	I am lucky to be

standing here I think. I am very hot. All I can

say is this is the thing - one page - and in it

again, it just says it should not be used for party

business. If you have got it as plain as day in

all of these documents, "Not for party business" -

now if you use something for something that it is

explicitly told to you not to use it for, that is a

wrong.

Now, I do not know if somebody here has got the full Act besides what is in this other one that

Mr McClure sent up, and all it states in there is

the entitlements and "Not for party/political
business".	So the man has gone - well, he has gone

and stolen money, in other words. It probably

ought to go before the Federal Police. It would be

the next best step. If these people are saying

here today that there is nothing in the Act - and I

will say it again, I have not got the way with it

all to be able to get hold of every word, every

letter of the Act, and I would ask Mr McCarthy to

show me in the Act where it states that it is not

an offence.

HER HONOUR:	No.
MR HUDSON:	Can he do that?

Hudson 40 30/7/93

HER HONOUR: That is not the argument, Mr Hudson, and I

think you know it is not the argument. The

argument is, as I have told you several times, that

even if everything you say be correct, it is not a

ground for invalidating the election.

MR HUDSON: All right, well if it is not a ground for

invalidating the election, if I take this to the

Federal Police and they investigate it and they

find that it is what I am saying and what is said

in Mr McClellands' letter here:

Even if your argument is correct that some

illega_lity has been committed -

In that last letter they are starting to even admit

that, something along the lines that there could

have been some illegality committed. If I take

that to the Federal Police and ask them to pursue

it and then they take the action and they find him

guilty under the 1914 Crimes Act he is then
automatically dismissed from Parliament, I should

believe.

HER HONOUR:  I think that is for another time and place if

that happens, is it not?

MR HUDSON:  I think the petition should go further than just

what these gentlemen say. I have no other proof

except that you could say bribery or undue

influence. I still believe that as a fact. It

would not have much difference with the outcome of

my personal vote. I think it is something like

36,000 votes with preferences and everything

against my paltry couple of thousand or more, but I

reiterate again, I am pushing on the community side

of it that this has been going on - it happened in

1990 and it goes into it in great detail in that

Hansard and it also happened to the tune of $2

million in New South Wales, I believe.

HER HONOUR:  No, no, that is well outside your petition now,

Mr Hudson. You know you must confine yourself to

what is in the petition.

MR HUDSON:  I withdraw that, Your Honour. But it is

happening, and I have had verbals	from different
people that should this win, that	half the House
would go with it because they all	participate in
the same act.

HER HONOUR:  Now, I think you have said everything you can

say.

MR HUDSON: All I am asking is, Your Honour, not to toss it

out today and to have Mr McClure's - the

Government's notice of motion withdrawn so that the

Hudson 41 30/7/93

public can have a fair go at it and we can see what

we can do. That is the only thing that I can think

of at the present.

HER HONOUR:	Yes, thank you.
MR HUDSON:	I thank you very much for putting up with me to

this date.

HER HONOUR:  Not at all. Mr McCarthy, anything?

MR McCARTHY: Just three things briefly, Your Honour.

Firstly, in relation to the notice of motion, I

just draw Your Honour's attention to this: in the

letter of 23 July 1993 which Mr Hudson brandished

around, it was drawn to his attention there by

McClellands that the respondent would be proceeding in the Court, this is at page 3, with proceedings

to terminate the petition. It said:

A copy of that proposed Notice of Motion is

enclosed herewith.

That is why it was not signed. It is in exactly

the same terms as the one that is before the Court.

Mr Hudson referred to it in a notice of motion to

which we take no objection that he filed today.

Your Honour, I hear what he says, I just bring that

to your attention to say that if there had been any

difficulty about the matter I would have sought to

proceed on it, but in the light of what has been

put, while I believe there is no substance on it, I

will proceed on the motion of the second

respondent.

The second matter is this. In my respectful

submission there is no value in any further

proceedings on this petition. As Your Honour

indicated a few moments ago, Mr Hudson well

understands that the problem with his petition is

that whatever he is alleging is not an illegal

practice under the Commonwealth Electoral Act for

which the Court of Disputed Returns can invalidate

an election. However else he may have gone this

afternoon, I think it has become well and truly

clear to him, as I believe it was clear to him a

week ago, that that in actual fact was the case and

that Your Honour, as the Court of Disputed Returns,

could take the matter no further.

Finally, Your Honour, I submit that in terms

of any of the material that has been put before

you, if Your Honour was with us, that it would be

an appropriate case, amongst other things, in which

it was stated that the first respondent, on the

material that had been put before this Court, had

certainly not been shown to have done anything that

Hudson 30/7/93

amounted to an illegal practice, or, indeed,

something that was a breach of the Entitlements Act. Your Honour, as Mr Hudson has made clear,

Mr Hudson has received very considerable publicity

in relation to this matter - - -

MR HUDSON:  I object to that, Your Honour. A point of order

on that one.	I have not received publicity on the
matter.	On the day it went out through the papers,

sure, so did Mr Lee get some publicity out of it

and since that day I have kept my mouth shut and

nobody has come near me.	I have not done anything
in the papers or the newspapers or the radio.	I
was not looking for publicity, sorry.

HER HONOUR:	Yes.
MR McCARTHY:	And, Your Honour, in relation to the third

matter I would just reiterate that it is our

submission, and really, I think Mr Hudson

understands but has nothing to say, that there are

wider considerations than just the electorate of

Debell that are the purpose of the rules about the

Gazette and that the Court, either on a

discretionary basis or on a basis of the other

matter of an interpretation of the Act, would not

excuse him if, indeed, it came to that particular

issue. Your Honour, the only other matter I would ask, subject to Your Honour's judgment in this, is

that could any issue in relation to costs be

reserved?

HER HONOUR:	Do you have anything to say?
MR SACKAR:	No, nothing.
HER HONOUR:	You seem to wish to reply to that in some

respect. You do not have a right of reply,

Mr Hudson, but I could let you have five minutes,

but at the absolute most.

MR HUDSON:  I think it is a travesty of justice that a

politician, one, does not have the wherewithal to

come and defend himself, and also can use public

tax moneys without telling the public and to be

able to get away with it.	I find it hard to
believe.

HER HONOUR:  I do not know that you can say that by way of

reply.	Your allegation is of a certain kind in the
petition.

MR HUDSON:  I think we have put sufficient enough evidence

into it and I believe the public should be made

fully aware of what has happened and I think where

I have double checked and gone backwards and

forwards through the different departments and

Hudson 43 30/7/93

found, sure, at this stage it does not spell out

that there is an Act that states what can be done

if you do misuse your Parliamentary allowances, but

on the top of this it does say undue influence

means a contravention of section 327 of the Act, or
section 28 of the Crimes Act 1914. Well, I still

say that by his using - and I go back to the word

"illegal use of" - - -

HER HONOUR:  Yes, but you are repeating what you have said

before, are you not?

MR HUDSON:  I was going to say something but it has gone

right out of my silly old scone at present.

HER HONOUR:  I see, yes. I think you have said everything

that really can be said, Mr Hudson.

MR HUDSON: All right.

HER HONOUR:  I will reserve my decision in this matter and

give judgment next Friday along with the other

matter.

AT 3.26 PM THE MATTER WAS ADJOURNED SINE DIE

Hudson 44 30/7/93