Kelly, Ex parte - Re Madgwick & Ors

[2003] HCATrans 671

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S403 of 2002

In the matter of -

An application for Writs of Quo Warranto, Mandamus, Certiorari, Prohibition and other relief against RODNEY NEVILLE MADGWICK, FEDERAL COURT JUDGE

First Respondent

RIGHT REVEREND, DR PETER JOHN HOLLINGWORTH, GOVERNOR‑GENERAL OF AUSTRALIA

Second Respondent

PROFESSOR MARIE ROSLYN BASHIR, GOVERNOR FOR THE STATE OF NEW SOUTH WALES

Third Respondent

GEORGE CAMPBELL, SENATOR FOR NEW SOUTH WALES

Fourth Respondent

HELEN COONAN, SENATOR FOR NEW SOUTH WALES

Fifth Respondent

KERRY NETTLE, SENATOR FOR NEW SOUTH WALES

Sixth Respondent

MARISE PAYNE, SENATOR FOR NEW SOUTH WALES

Seventh Respondent

SANDY MacDONALD, SENATOR FOR NEW SOUTH WALES

Eighth Respondent

URSULA STEPHENS, SENATOR FOR NEW SOUTH WALES

Ninth Respondent

ANDREW KINGSLEY BECKER, AUSTRALIAN ELECTORAL COMMISSIONER

Tenth Respondent

DAVID JOHN FARRELL, AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF NEW SOUTH WALES

Eleventh Respondent

WILLIAM PETER SHEPARD, AUSTRALIAN ELECTORAL OFFICER FOR THE TERRITORY OF THE NORTHERN TERRITORY

Twelfth Respondent

JEFFREY WILLIAM HOWARTH, AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Thirteenth Respondent

AUSTRALIAN ELECTORAL COMMISSION

Fourteenth Respondent

Ex parte –

NED KELLY

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 APRIL 2003 AT 10.16 AM

(Continued from 25/2/03)

Copyright in the High Court of Australia

__________________

MR D.C. FITZGIBBON:   With your Honour’s leave, although I have not been involved in the preparation or other matters of it, Mr Kelly has asked that I appear and argue the matter.  (instructed by the applicant/prosecutor)

HIS HONOUR:   Yes, very well, Mr Fitzgibbon.

MR FITZGIBBON:   For that limited purpose, with your Honour’s leave, I would – I believe it would save time is what ‑ ‑ ‑

HIS HONOUR:   Yes.  There is no objection to that, is there, Mr Basten?

MR J. BASTEN, QC:   No, your Honour.  I appear with MS R.M. HENDERSON for the Electoral Commission, which is the fourteenth respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, and the position of the other respondents is sufficiently set out in the transcript of the proceedings before me on 25 February.

MR BASTEN:   Yes.

HIS HONOUR:   Yes, Mr Fitzgibbon.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, I have informed my friend that I do not in fact rely on those parts of the argument that involve what his Honour found in the judgment to be in fact a ‑ ‑ ‑

HIS HONOUR:   Well, perhaps, firstly, we had better get the evidence sorted out, I think, Mr Fitzgibbon.

MR FITZGIBBON:   Yes, thank you.

HIS HONOUR:   There are some affidavits of service.  I do not think there is any point in reading them, but there is an affidavit by your client on 20 February 2003 with a very bulky collection of annexures and exhibits.

MR FITZGIBBON:   Yes.  Much of it, your Honour, may not be of much help at all, but it is nevertheless there.  I do not know what attitude my friend takes to that.

MR BASTEN:   I have no objection to any part of that and if your Honour needs a paginated volume of it, we can provide that.

HIS HONOUR:   I think I will be right.  Then there is an affidavit of Alexander Cornell Stewart sworn on 14 April 2003 which annexes some material as well, including the proceedings before Justice Madgwick.

MR FITZGIBBON:   Yes, your Honour.  I believe the proceedings in front of Justice Madgwick would be of assistance, but the other part is really the tendering of the yellow ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR FITZGIBBON:   It really ‑ ‑ ‑

HIS HONOUR:   Annexure D is the New South Wales Senate Results Election 2001 issued by the Commission.

MR FITZGIBBON:   Yes, it may be of assistance – I put it no higher than that – and it would only be of assistance ‑ ‑ ‑

HIS HONOUR:   Anyway, you rely on that affidavit?

MR FITZGIBBON:   I do rely on it, thank you, your Honour.

HIS HONOUR:   All right.  Any objection, Mr Basten?

MR BASTEN:   Only in relation to relevance, your Honour.  Most of it said by us to be irrelevant, but that can be dealt with.

HIS HONOUR:   Yes, very well.  I will admit it.  Yes, now ‑ ‑ ‑

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, in the – and I am relying particularly on the prosecutor’s reply.

HIS HONOUR:   Let me just find that.  Yes, I have that.

MR FITZGIBBON:   Thank you.

HIS HONOUR:   That is a document ‑ ‑ ‑

MR FITZGIBBON:   It is a document of something like 14 pages, I believe – 17 pages.  What I believe ‑ ‑ ‑

HIS HONOUR:   That is right.  Dated 16 April.

MR FITZGIBBON:   Yes, thank you.  Your Honour, in order to, I believe, get to the gravamen of what we really are dealing with here I do not argue those issues 8 ‑ ‑ ‑

HIS HONOUR:   Just let me find ‑ ‑ ‑

MR FITZGIBBON:   1 to 7 I rely on ‑ ‑ ‑

HIS HONOUR:   Just a minute.

MR FITZGIBBON:   ‑ ‑ ‑ subject, of course, my friend would say as to relevance.  8 I do not rely on.

HIS HONOUR:   Just a minute, 1 to 7, 8 not pressed.

MR FITZGIBBON:   Yes.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Your Honour, and that commences with the words “VALIDITY OF GOVERNOR’S APPOINTMENT”.

HIS HONOUR:   That is right, yes.

MR FITZGIBBON:   Through to, your Honour, page 11 and at point ‑ ‑ ‑

HIS HONOUR:   There does not seem to be a 9.

MR FITZGIBBON:   Yes, there should be a 9 in there but for some reason there is not.

HIS HONOUR:   Anyhow, as to 10?

MR FITZGIBBON:   But – no, I do rely certainly in part on 10, on the counting of the days, but perhaps if your Honour would note that under the words “Sue v Hill” at point 6 on page 11, down to that I do not rely on those issues.

HIS HONOUR:   Thank you, yes.

MR FITZGIBBON:   And the answer, your Honour, quite simply is that his Honour found as a fact in the judgment at – at page 16 of the judgment he has a description “A new matter” and that is dealt with the final paragraph on page 16 and a leading paragraph on page 17.  That I believe to be the correct position, your Honour.  I really do not see that I can usefully argue against that.  They are not ‑ ‑ ‑

HIS HONOUR:   This is Justice Madgwick’s judgment of 11 September?

MR FITZGIBBON:   Yes, your Honour.

HIS HONOUR:   Paragraph?

MR FITZGIBBON:   Paragraph 48.

HIS HONOUR:   Yes, I see.

MR FITZGIBBON:   Yes, and I believe that – although my client does not wish to relinquish those arguments, it is an argument for another time and another place, in my submission, and I believe that to be correct.

HIS HONOUR:   Yes, very well.

MR FITZGIBBON:   Thank you.  Your Honour, can I commence with this – might I just ask this, does your Honour have in mind the time we have for leave to appeal or are we not fixed ‑ ‑ ‑

HIS HONOUR:   No, please, proceed.

MR FITZGIBBON:   Thank you.  Your Honour, I believe there are, as I have indicated, two major issues.  One I do not think is arguable in front of this Court, as I have already stated, it could well be an argument for another time and place.  But I believe that the position however is different with the bulk of the argument, and I have very much concentrated, your Honour, in arguing this on the basis of the prosecutor’s reply.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Your Honour, if I might with leave – and I must say I have been greatly assisted by this – hand to the Court a speech which the Chief Justice gave at the University of Monash, 24 July 2001.

HIS HONOUR:   Has Mr Basten got a copy of this?

MR FITZGIBBON:   Yes, I have ‑ ‑ ‑

MR BASTEN:   We have been handed it, thank you.

MR FITZGIBBON:   I have provided my friend ‑ ‑ ‑

HIS HONOUR:   This is the Lucinda Lecture.

MR FITZGIBBON:   Yes, the Lucinda Lecture.  I believe, your Honour, that is of great assistance in perhaps bringing the argument into a perspective that I hope to obtain later.  In essence, your Honour, I believe in the Lucinda Lecture at pages 4 and 5 his Honour very precisely sets out what is one of the major issues here.  Perhaps I can clarify that to this extent, that in the judgment the position taken by his Honour, I say, is one where ‑ ‑ ‑

HIS HONOUR:   This is Justice Madgwick?

MR FITZGIBBON: Yes, thank you. At pages 13 and 14 of the judgment, your Honour, he deals Mr Hanks – I think he is Professor Hanks, I am not sure on that - your Honour, his Honour deals particularly with section 9 of the Constitution at paragraph 39 of the judgment and, in particular, of course, he sets out that part of the Constitution. Then on page 15 he comes to the decision and particularly he sets out at paragraph 43:

On this basis, counsel submit that the [Commonwealth Electoral] Act thus determines the dates fixed for the close of rolls and nominations.  The CE Act does not make reference to the subject of the relevant times and places of the election, which are determined by the relevant State legislation.  Thus, whilst there is a timetable provided for in the NSW Election Act, as to matters preceding the poll it has been displaced by the provisions of the CE Act.

The particular relevance is on page 16:

that the CE Act does not require publication of the writ in any Gazette as part of the issuing of the writ.  Indeed the effect of s 152 is that time must run from . . . 6:00 pm on 8 October 2001.

What, with respect, his Honour has done in regard to that is, and to also one other area I want to visit in the judgment – what he seems to have done is that he has taken counsel’s submission that in fact the Commonwealth Electoral Act may prevail over that precise part of the Constitution itself which I say, or I submit, really he cannot do. That is particularly why I went back to the Lucinda speech. As I say, it is particularly of help in the area of pages ‑ ‑ ‑

HIS HONOUR:   Pages 4 to 5.

MR FITZGIBBON:   ‑ ‑ ‑ 4, 5 – and, your Honour, I am sorry, the machine did not print the numbers out but I added to that – and at page 6 his Honour says this in the first paragraph, halfway through:

It is the Constitution that determines the powers of the Senate, and requires that there be equal representation for each State, but it is the Parliament that, subject to the constraint earlier mentioned ‑ ‑ ‑

HIS HONOUR:   I am sorry, where are you reading from?

MR FITZGIBBON:   Sorry, your Honour, at ‑ ‑ ‑

HIS HONOUR:   Page 6?

MR FITZGIBBON:   ‑ ‑ ‑ page 6, the top paragraph at approximately halfway through that.  It is after “in Biblical terms, as straining at a gnat and swallowing a camel”.

HIS HONOUR:   Yes, I see it.

MR FITZGIBBON:   Then he goes on to put there, in my submission, quite correctly:

It is the Constitution that determines the powers of the Senate, and requires that there be equal representation for each State, but it is the Parliament that, subject to the constraint earlier mentioned, determines the method of election of senators.

But what your Honour has not – he correctly does not state anything as to this. Of course when one goes to the precise terms of section 9, it is important, I think, to remind ourselves of – and your Honour would have been reminded on many occasions, I am sure, but the first part of section 9:

The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States.  Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Then, your Honour, very precisely put in there, in my submission, are these words:

The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

Now, that, your Honour, is what I say has occurred here, and that is the major question, in my submission, that is found in the prosecutor’s argument.  It might not be as precisely stated as that, but that is really what I am saying.  It is on that part and although the prosecutor has in fact referred to the background, there is an interesting part that he has not put and Quick and Garran has it that after this amendment was put during the debates – there are two aspects to this. 

The first aspect is the Bathurst Convention and Dr Quick has in fact given us a very precise definition from that Bathurst Convention. I will come to that in just a moment. But, equally, Quick and Garran itself says that even after the amendment was put, to put that extra line in section 9, if I can put it that way, although it was pointed out that it was an amendment and it clearly altered powers, the fact of the matter was that it was left that way. Insofar as we are able to determine, in my submission, what we have is a very precise piece of legislation and that, in my submission, although his Honour correctly points out in the Lucinda speech:

It is the Constitution that determines the powers of the Senate, and requires that there be equal representation for each State, but it is the Parliament that, subject to the constraint earlier mentioned, determines the method –

but what, your Honour, I say cannot happen here is that in fact the State makes the laws for determining the times and the places of the election of the senators.  Your Honour, that is where I believe the problem that arises – and arises, I think, very specifically in this case and, indeed, I believe I will be able to demonstrate to your Honour that it arises in a more dramatic fashion than even the prosecutor has referred to.

Now, the prosecutor, your Honour, in fact at page 12 of his submissions, for instance, talks at 10.2 of the counting of the days under the Commonwealth Electoral Act and he submits that:

the State Act would still arrive at the arithmetic conclusion that the poll could not be lawfully held on November 10, 2001;

and the second problem, your Honour – it is said to be (c) but it obviously should be (b) – is this:  if the judgment, that is extant at the moment, of his Honour Justice Madgwick stands, in my submission what it would do would be to derogate from the powers of the States – if “derogate” is the wrong word, your Honour will forgive me for using that, but I believe it states the intention behind what would happen here because very, very clearly ‑ ‑ ‑

HIS HONOUR:   We are construing section 9 of the Constitution obviously enough.

MR FITZGIBBON:   Yes.

HIS HONOUR:   Now, what do you say is the outcome of your construction?

MR FITZGIBBON:   I say the outcome of my construction is this ‑ ‑ ‑

HIS HONOUR:   For this case, for this election, in which your client was involved.

MR FITZGIBBON:   Yes.  I am assuming the argument on illegality, or whatever, which we will have to cross at a later time.  But assuming that, what I say is this, that, in effect, if one were to follow the rationale in the judgment of Justice Madgwick, then in fact we would have the situation where the Commonwealth Electoral Act on this precise issue, time, and ‑ ‑ ‑

HIS HONOUR:   Place.

MR FITZGIBBON: ‑ ‑ ‑ place – and I just want to be perfectly precise on that – that would be to displace that precise part of the Constitution which I say would then deprive the States – it would deprive the States of the right to set times and places.

HIS HONOUR:   Now, wait a moment.  We have to take it by steps.  So what section of the Commonwealth Electoral Act do you say wrongly and beyond power displaces this State position as to times and places?  There must be some section you complain of in the Commonwealth Act.

MR FITZGIBBON:   Yes, your Honour.  There are two answers, I believe, to that.  The first answer is this:  I am not at all sure it is the actual sections 155 and 156, so much as the interpretation that my learned friend in the lower courts – I think he is Professor Hanks, is he not?

MR BASTEN:   No.

MR FITZGIBBON:   He is not.

HIS HONOUR:   He was.

MR FITZGIBBON:   He was, all right.  I will come back from that.  He placed an emphasis and the submission was made to the Court that in fact there could be that – yes, your Honour, it is at page 14 of his Honour’s judgment, paragraph 40:

Counsel for the Commission point out that the effect of s 9 is that, whilst the NSW Parliament may make laws concerning the method of choosing senators, including laws to determine the time and place of the State’s elections of senators, such State laws will, except as to the actual times and places of the elections themselves, give way to any Commonwealth legislation on the same subject.

Now, in the normal course of events, yes. Where there is a conflict, your Honour, yes, of course the Constitution tells that Commonwealth law must prevail, but here, in my submission, what we have is a very clear part of the Constitution itself which very precisely says it is the Parliament of the State ‑ ‑ ‑

HIS HONOUR:   Well, it says “may”.

MR FITZGIBBON:   Sure – yes, I hear your Honour, but I say that even on that basis – and, as his Honour said:

(It is implicit in the submission that, in this context, the “elections” are the polls; I agree with this assumption.)  Therefore, one must first look at the CE Act, as it prescribes the method for choosing senators, including the times available for the nomination of candidates and as such, displaces any State legislation on the subject including the NSW Election Act.

Now, your Honour, unfortunately the problem does not stop there because in fact if one is able, as his Honour seemed to have done, to have brought the number of days within the appellant’s argument – he does so at page 16 of the judgment – but there is an additional problem, your Honour.  It is this, that specifically three States had in place at the time of that election the – they had amended the Election of Senators Act in Western Australia, South Australia and at that time also they had amended the legislation in Tasmania.

Now, if I can, with leave, hand to the Court, first of all, the West Australian – and the marking, your Honour, is mine; that clearly is mine – your Honour will see that those States, those three States – and South Australia, if I might once again – South Australia also amended that.

HIS HONOUR:   So you have handed up the Election of Senators Act of Western Australia ‑ ‑ ‑

MR FITZGIBBON:   I think I have handed your Honour the Western Australian ‑ ‑ ‑

HIS HONOUR:   Yes.

MR FITZGIBBON:   Thank you.  Might I also add the South Australian consolidated Election of Senators Act as well and, equally, an Acts Interpretation Act amendment in that State.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Likewise, I should have joined earlier the computation of time for Western Australia – I am trying at the same time, your Honour, to in fact give the same to my friend ‑ ‑ ‑

HIS HONOUR:   But we are immediately interested in New South Wales.  Your client only has standing ‑ ‑ ‑

MR FITZGIBBON:   I accept that.

HIS HONOUR:   ‑ ‑ ‑ really in relation to New South Wales senate ‑ ‑ ‑

MR FITZGIBBON:   True, but what I am really saying is this, that the problem is that almost half the geographical part of the continent voted on an 11 day, which, whatever way you emasculate, in my submission, the arguments put by Professor Hanks ‑ ‑ ‑

HIS HONOUR:   Dr Hanks.

MR FITZGIBBON:   ‑ ‑ ‑ Dr Hanks, the answer is, of course, that there is no way it could have fitted within that 11 day problem.  Now, interestingly enough, I have the Tasmanian legislation and I am told that – and I really – I am sorry, I only have one copy of this, your Honour.  I will show it to my friend, but I need to qualify that.

HIS HONOUR:   Now, what about New South Wales?

MR FITZGIBBON:   The position in New South Wales has not been the subject of that ‑ ‑ ‑

HIS HONOUR:   The Senators’ Election Act 1903.

MR FITZGIBBON:   No.  The history is really quite interesting, your Honour.  I know that it is not a court of history but it is quite interesting because in the original Acts Interpretation Act, in the first volume of legislation passed by the Commonwealth Parliament ‑ ‑ ‑

HIS HONOUR:   Yes, but we have to get down to tintacks, Mr Fitzgibbon, perhaps. What is the New South Wales law made under this last sentence in section 9 of the Constitution which you say was the governing law and which was wrongly described by Justice Madgwick as having been overridden by Commonwealth law? If there is nothing for the Commonwealth to override, that is one thing, but what is there in the State law?

MR FITZGIBBON:   No.  Your Honour, it must be the Interpretation Act 1987 section 36.

HIS HONOUR:   What does that say?

MR FITZGIBBON:   What it says is that:

(1)  If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2)  If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:

(a)  on a Saturday or Sunday, or

(b)  on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

Essentially, your Honour, New South Wales never altered their Act.  South Australia did to take the extra time into that, so did Western Australia, so did Tasmania.

HIS HONOUR:   But is there any relevant New South Wales section upon which the Acts Interpretation Act operates?  You have to find another Act.  Is there anything other than section 4B and 4C of the New South Wales statute of 1903 referred to by Justice Madgwick at paragraph 43 of his reasons?

MR FITZGIBBON:   Yes.  His Honour in fact relied on that, but I have taken it forward of that to include the 1987 amendment, but that amendment still does not cure the problem, in my submission.

HIS HONOUR:   This is 1987 amendment to what?  What 1987 amendment?

MR FITZGIBBON:   Yes, I have a copy, your Honour, but my copy is marked, if your Honour ‑ ‑ ‑

HIS HONOUR:   That is all right.  But what is it?

MR FITZGIBBON:   I am not trying in any way to ‑ ‑ ‑

HIS HONOUR:   What is it?

MR BASTEN:   That is the Interpretation Act.  That is the Senators’ Election Act.

MR FITZGIBBON:   Yes.

HIS HONOUR:   It is the New South Wales Interpretation Act, is it?

MR FITZGIBBON:   Yes, I am sorry, I read to you out of the Interpretation Act.

HIS HONOUR:   Yes, I understand that. So it is section 36 as it stands after 1987?

MR FITZGIBBON:   Yes.

HIS HONOUR:   Yes, I understand.

MR FITZGIBBON:   So what I say is that there has been no curative act by New South Wales such as the other States took, but the problem arising, your Honour, is this – there are two problems.  One, we say that the number of days cannot be brought and that the interpretation by the prosecutor is correct as to the number of days.  But, secondly, your Honour, we say that in any case, if one looks at South Australia, Tasmania and Western Australia, there is simply no way one can bring that within the 11 days and, hence – that is a matter, your Honour, not of statutory interpretation, it is just straight‑out arithmetic, with respect.  If one takes that, then one is faced with, I say, an insurmountable problem – I submit an insurmountable problem.  There is no way the equation by his Honour can be brought within 11 days.  Now ‑ ‑ ‑

HIS HONOUR:   So you are going to another point?

MR FITZGIBBON:   Yes, thank you.  Your Honour, that I believe to be – and that is consistent within the Lucinda principle, if I can call it that, with the greatest of respect, of saying that whatever one can do – and it is very clear, his Honour points that out very clearly in that speech to Monash.  He does not, however, venture at all into the area of time or place, because it is very clearly set out.

Now, your Honour, if I then might move to the second page of the prosecutor’s argument.  I know I have the cart somewhat before the horse, but, your Honour, in the court it is set out there as to the nomination and how it occurred.  The prosecutor has set out what occurred in the court and at point 5 of that page his Honour asks the question:

Now, if the conduct of the Australian Electoral Commission was such that it amounted to a constructive refusal to accept the nomination on the part of the Australian Electoral Officer, then there would be, we would think, an illegal practice.

I am sorry, that is actually Mr Hanks in reply to his Honour.  His Honour’s question at point 3:

Is there anything in the Act that says they have to advise the candidate where to pay?

So what we say here is this, that – and, indeed, his Honour in the judgment itself actually at page 9 in paragraph 24:

I have however been troubled, to some extent, as to whether facts asserting the illegal exclusion of a candidate might not, of themselves, oblige the Court to say that the result of the election is likely to have been affected.  Such an interpretation of the CE Act would tend to vindicate a fundamental notion of modern Australian democracy that, in general, any citizen should be able to stand for election to Parliament.

Then, of course, he goes on to deal with Webster v Deahm and, indeed, over the page with Sykes v Electoral Commission.  Now, what I submit to your Honour is this, that in the court it was clearly established a number of things which, I think, go to this area.  The evidence suggests that in fact Mr Kelly went to the Queensland office and there he obtained a copy of the document that governs elections.  That document of itself had nothing in relation to him, and his Honour questions over this to Mr Hanks, indeed, cover some of the aspects of what occurred.

Having realised he had to attend down here, it seems to be an accepted fact that the train broke down.  I do not think anyone has contested that as an issue.  He then decided to exit at Newcastle.  He attended – the money was tendered in cash.  It was refused.  The agency argument was certainly considered by his Honour but, at the end of the day, he then goes into alternate mode and the affidavits of Mr Stewart and, indeed, the affidavit of – I am sorry, there is one other person who actually attended with the money, having gone around Sydney to get it.  He gets to the Electoral Commission 10 minutes late and there he is told no.

Now, I think it is important that there is – and I have sought access to the file that has been brought up from the Federal Court and there is attached – this is a document, as I understand it, that was discovered on the Commission’s documents.  Your Honour, I have not had time to have it photocopied but if your Honour would accept ‑ ‑ ‑

HIS HONOUR:   Well, what does it show?

MR FITZGIBBON:   It is a memorandum – it is actually an email attaching ‑ ‑ ‑

HIS HONOUR:   Was this in evidence before Justice ‑ ‑ ‑

MR FITZGIBBON:   This was in evidence in the lower court.  No, I am informed that it was filed but it was never read, so I really do not believe ‑ ‑ ‑

HIS HONOUR:   I do not think so, no.

MR FITZGIBBON:   ‑ ‑ ‑ I can properly rely on that.  I was not aware of that, your Honour.

HIS HONOUR:   Yes, I understand that.

MR FITZGIBBON:   I am grateful to my friend for telling me that.  But, nevertheless, whatever one may think about it, the fact of the matter is that in the circumstances, if one remembers that how these events came about – and at page 13 of the submissions, your Honour, there – I am looking for the precise part of where an amendment to the Act was sought so that the time in fact could be given to consider circumstances like we are dealing with here.

Now, what I say here is this, that the circumstances were such that it must raise the inference, in my submission, that in fact what happened here was an illegal practice, as accepted by Mr Hanks as being a constructive refusal because we do know that Mr Stewart attended and his nomination, although 10 minutes late, was accepted.  So what I am really putting to your Honour is this, that within the terms – and I am not saying this is corrupt practice within the normal sense of the word, within the criminal sense of the word.  It is not that at all.  It is an illegal practice as defined in the Act.

What occurred, in my submission, was that Mr Kelly did everything he could to in fact make his nomination certain and, indeed, as I say, there was that amendment to the Act that gave – it is in fact referred to on page 3 of the submission, where the Electoral and Referendum Amendment Act 1998 No 94 – it is at point 3.3, or point 3.2 and point 3.3. It was sought in fact to give more time so that discretion could be exercised in those circumstances. The prosecutor says that in fact that was not in fact applied in his particular case.

So really to sum it up what I say, your Honour, is this, that his Honour himself considered that if a person was excluded, that of itself could amount to – to be perfectly precise at page 9, he says:

exclusion of a candidate might not, of themselves, oblige the Court to say that the result of the election is likely to have been affected.

I rely on that.

HIS HONOUR:   Paragraph?

MR FITZGIBBON:   Sorry, your Honour, paragraph 24 on page 9 of the judgment.

HIS HONOUR:   Yes, reference to Sykes.

MR FITZGIBBON:   Yes.  Secondly, even his Honour was prepared to accept that he might have got 4 per cent of the vote – I think really fetching probably a figure out of the air, because that is one of the great problems.  The problem with the Commission is, if one says, “Prove to me what you can get in an election or make a substantial guess at one can get”, then, your Honour, I think, with great respect, we are into the field of either prophecy or speculation or both.

I do not see that we can go beyond, and that is why I attached the exhibit E, the election results.  Your Honour, the system we have – and I could bore your Honour for hours and I know you would not thank me for that, but what I say is this:  in effect if you have even a small number of votes and on the basis that tendered in the evidence were a number of parties – and this is part of the evidence, your Honour, the Advance Australia Party, non‑aligned Stewart group, Non‑Custodial, Help End Marijuana ‑ ‑ ‑

HIS HONOUR:   Now, this all depends on the phrase “illegal practice”, does it not?

MR FITZGIBBON:   Yes.

HIS HONOUR:   Which means a contravention of the Act or the regulations?

MR FITZGIBBON:   Yes, it does.

HIS HONOUR:   That follows at 352.  Now, if there was no contravention of the Act or, to put it another way, to get into this area this assumes that you succeed on the first arguments you were developing.

MR FITZGIBBON:   Yes, it does, your Honour.  I accept that one must get over barrier one before one approaches that.

HIS HONOUR:   Yes, I understand.

MR FITZGIBBON:   But all I am submitting to your Honour is this, that – and I would be perfectly prepared for my friend to object to this, but if I can give the example of where Mr Kelly stood in the recent State election he got 2.8 per cent of the vote ‑ ‑ ‑

HIS HONOUR:   Is this for the Legislative ‑ ‑ ‑

MR FITZGIBBON:   I should not be doing this, but I am giving it as an example to try and tell your Honour that this system – it is amazing, I am sorry, but what it does is because one has a number of party votes, then if you get up on a system of progressively – if you survive the 143^rd count down to the 227^th count, when finally you have a vote, then the person concerned could have a very substantial voting number.  It is a system – I have actually had it worked out, your Honour, on his standing up here but it is not evidence before the Court, and I accept that, but I am putting it up just simply to say that a person with a primary vote of 2,000 votes, if we had in place the parties who say on oath that they would have voted for the candidate, then on a progressive total he would not have been elected but he certainly would have been in the position where he affects the fifth and sixth major candidacy, because effectively 2,000 votes – and given that equation, then he would have had something like 94,000 votes on the lowest possibility.

Now, all I am saying is I am explaining to your Honour that if one gets over the barriers to this point, the fact of the matter is it is doubtful if he would have been the elected candidate, although one does not know, but, secondly, it certainly would have influenced who in fact would have been, of the two major parties – they come in four and four and then whoever comes in on the fifth of that four and four would be affected by this equation.  That is as far as I believe I can take it.

HIS HONOUR:   All right.

MR FITZGIBBON:   I can say that, your Honour, quite confidently, it needs a mathematician to work it out but on the basis of exhibit E.  I do not go beyond that.

HIS HONOUR:   That is the second area.

MR FITZGIBBON:   Yes, thank you.

HIS HONOUR:   Is there anything else?

MR FITZGIBBON:   Now, your Honour, I have dealt with, I believe, the legislative history in relation to the Acts.  They are set out very clearly in the notes.  The history of how it has got to this Court is also set out, in my submission.  The Sue v Hill point on void elections I have not really dealt with, but that is referred to, as I say, within the submissions very clearly.

HIS HONOUR:   Whereabouts?

MR FITZGIBBON:   At page 4, your Honour, at the bottom of page 4.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Your Honour, I believe that sets out what his submission is.  He relies particularly on that Canadian case, your Honour, that went eventually to the Privy Council.  In the Privy Council of course ‑ ‑ ‑

HIS HONOUR:   What is the citation?

MR FITZGIBBON:   The citation, your Honour, is R v Speyer and R v Cassel – I am sorry, I said it was Privy Council; I am wrong on that.  It relates to the status of a Privy Councillor.

HIS HONOUR:   I remember this one.

MR FITZGIBBON:   Yes, I am sorry.

HIS HONOUR:   It is 1913 or ‑ ‑ ‑

MR FITZGIBBON: It is [1915] 1 KB 595.

HIS HONOUR:   We will get a copy.

MR FITZGIBBON:   Thank you, your Honour.  I am able to make a copy available if you wish.  I am sorry.

HIS HONOUR:   You can show that copy to Mr Basten.

MR FITZGIBBON:   What he essentially says at this point is – he alleges that there really has not been an election according to law and he goes further than that and of course he uses the corruption and the likelihood – he repeats that as such.

HIS HONOUR:   The judge being?

MR FITZGIBBON:   That being, your Honour, what I believe I have canvassed in front of your Honour, that the conduct of the Commission and the acceptance, it seems, of Mr Hanks, a constructive refusal as such.  Now, the other issue he raises, which seems on the reading of the judgment to be accepted, onto the publication aspect, your Honour.  Your Honour will realise there is an extensive amount of material on there.  It seems, on my reading of the judgment, that in fact Mr Hanks accepted that the publication and proroguing of Parliament – I am not sure of my friend’s attitude to this now, but the bottom line is that his Honour found that it still was not sufficient of its own to say ‑ ‑ ‑

HIS HONOUR:   The judge being who?

MR FITZGIBBON:   I am sorry, your Honour, in the judgment itself, page – no, your Honour, I am actually dealing with Justice Madgwick’s judgment itself.

HIS HONOUR:   I see, yes.

MR FITZGIBBON:   I am sorry, I was not clear on that, your Honour.

HIS HONOUR:   That was not clear.  What paragraph of Justice Madgwick?

MR FITZGIBBON:   It is referred to, your Honour, on page 7 of the submissions and then – I am sorry, your Honour, I have misplaced the actual judgment.  I think I might have placed it back into the sleeve.

HIS HONOUR:   Yes.  Well, just take a moment to find it.

MR FITZGIBBON:   I am sorry, but in essence ‑ ‑ ‑

HIS HONOUR:   Well, I think it is best if you find it, so we know this particular paragraph.  Just take a moment to find it.

MR FITZGIBBON:   Thank you.

HIS HONOUR:   Re Speyer is [1916], not [1915] – [1916] 1 KB 595.

MR FITZGIBBON:   It must be reported in 1916 – it is a 1915 – because of the war it would have gone on to ‑ ‑ ‑

HIS HONOUR:   Yes, anyhow.

MR FITZGIBBON:   Thank you.

HIS HONOUR:   Now, whereabouts in Justice Madgwick’s judgment?

MR FITZGIBBON:   Your Honour, at page 13 of the judgment, under “The method of election and the timing of the poll”, there is there the allegation of course on ground two of the petition.  Now, at the bottom of that page at paragraph 35:

Mr Kelly alleges, the Special Gazette No 155 (which presumably sets out the text of the writ) was not printed and published until Friday, 12 October 2001 and was not available to the public until 2:00 pm on that day.  Mr Kelly submits that time must run from publication of the writ –

and then he refers to the New South Wales Act.  His Honour deals with that.  Then he deals on page 14 in paragraph 36 with the number of days, which I have – at paragraph 38:

Counsel for the Commission submit that, assuming the facts alleged by Mr Kelly regarding the issue and publication of the writ to be correct, those facts do not provide a ground to declare that the NSW Senate election was invalid or void.

At the bottom of that page at paragraph 40:

Counsel for the Commission point out that the effect of s 9 –

which we have dealt with.  Then, of course, at page 15 there is once again the repeated argument that the Commonwealth Electoral Act can overcome those problems as such.

HIS HONOUR:   Yes.

MR FITZGIBBON:   I am sorry, your Honour, I have my own marked copy and I just cannot lay my fingers on it, but I know that in fact there is a mention in regard to the publication issue.

HIS HONOUR:   Mention of what?

MR FITZGIBBON:   It is a mention in relation, your Honour, to the non‑publication or not being published on time.

HIS HONOUR:   Anyhow, I will invite you to finish your submissions fairly soon, then I will take a short adjournment and if you find it over the short adjournment, you can tell me when I resume before I hear from Mr Basten.

MR FITZGIBBON:   Yes, thank you, your Honour.

HIS HONOUR:   All right.

MR FITZGIBBON:   Just what is said here, of course, is this, that in essence his place is that in fact there was not a valid election as such.  I think he is saying that as a combination of factors too, your Honour.  In my submission, it cannot simply be dealt with by isolating factors off, as seems to have happened in the judgment itself.

The counting of the days, your Honour, I do not believe I need to return to that.  I believe that I have very clearly set out what that position is.  There is reference, your Honour, there to the Canadian authority of Grandchamp v Masse.

HIS HONOUR:   Whereabouts is that?

MR FITZGIBBON:   That is reported in (1938) 65 Que KB 539 (CA).

HIS HONOUR:   Just a minute, in which submissions does it appear?

MR FITZGIBBON:   It appears on page 12, your Honour.

HIS HONOUR:   Of the submissions?

MR FITZGIBBON:   Of the submissions, yes.

HIS HONOUR:   Right.

MR FITZGIBBON:   In essence it says by the affixing of days are essential legal formalities of the writ, if held on any other day other than prescribed by law, the election as a consequence is rendered a nullity and even the fact that a large majority of qualified voters have expressed their desires – and such an irregularity cannot be cured.

HIS HONOUR:   So the citation seems to be (1938) 65 Que KB 539.

MR FITZGIBBON:   Yes, thank you.  Now, your Honour, I have, although it is redealt with, in essence – perhaps even more fully, the wrongful rejection of the nomination is set out at ground 11 at some considerable length, but I do not believe it states more than in fact what I have put as the position that the prosecutor was in.  As I say, beyond that, your Honour, I rely very much on the various matters set through ‑ ‑ ‑

HIS HONOUR:   Thank you.

MR FITZGIBBON: There is only one matter, your Honour, which may be of assistance back on the issue of intent behind section 9. I do have a copy, your Honour, of Dr Quick’s Bathurst speech. It is really just simply reinforcing the position. The marking, your Honour, at about point 8 is mine, where Dr Quick says:

For the purpose of exercising powers such as this, he was of opinion that the members of the Federal Senate could and should be elected by the people directly and there was no occasion to test the choice in State legislatures.

And that is why he goes on to say ‑ ‑ ‑

HIS HONOUR:   Well, one has to understand that at that stage in the United States senators were not elected by popular election and came through the State legislatures.

MR FITZGIBBON: That is right, and that is why he very carefully sets out in that Bathurst speech what I believe to be the reasoning behind why section 9 was framed the way it was.

HIS HONOUR:   Yes. Now, that brings me to this: it may be that involved in looking at section 9 in the way you wish me to do I am embarking on the interpretation of a provision in the Constitution. Now, are 78B notices necessary? Have they been given?

MR FITZGIBBON:   No, they have not, no, because I do not believe that the prosecutor has ‑ ‑ ‑

HIS HONOUR:   That was my understanding, yes, but it seems to have changed.  You are ‑ ‑ ‑

MR FITZGIBBON:   I think that I have taken ‑ ‑ ‑

HIS HONOUR:   You have I think gone into that area.

MR FITZGIBBON:   Yes, and that is why I really – I guess the answer is I came to it very late and ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that, but I am just concerned that the Court meet the requirements of 78B.

MR FITZGIBBON:   Yes.  No, they have not been issued, your Honour.

HIS HONOUR:   Well, I will take a short adjournment in a minute and it can be thought about.

MR FITZGIBBON:   Yes.

HIS HONOUR:   Maybe the best answer is to allow the argument today to conclude, then for 78B notices given essentially annexing the transcript of today and with a response date of several weeks or so and if there is no response, well, that will be it.  If there is a response, the Court will perhaps have to reconvene.

MR FITZGIBBON:   Yes, thank you, your Honour.

HIS HONOUR:   All right.  Is there anything else?

MR FITZGIBBON:   No, thank you.

HIS HONOUR:   Yes, very well.  I will take a short adjournment.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

HIS HONOUR:   Yes, Mr Fitzgibbon.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, might I return in short to the issue that I raised and then I had misfiled my papers.

HIS HONOUR:   Yes.

MR FITZGIBBON:   In the judgment, your Honour, at paragraph 35 the issue was raised:

Mr Kelly’s argument that the writ issued did not comply with the requirements of the Senators’ Election Act –

on publication.  At 38, which is found on page 14, his Honour says this:

Counsel for the Commission submit that, assuming the facts alleged by Mr Kelly regarding the issue and publication of the writ to be correct, those facts do not provide a ground to declare that the NSW Senate election was invalid or void.

That was the part I was particularly looking for.

HIS HONOUR:   Yes.  Then there is the sentence you complain about in paragraph 40 about giving way, yes, I understand.

MR FITZGIBBON:   Yes, thank you.  Just one other matter, or perhaps two.  Your Honour, there was, in my submission, just in relation to that, on the affidavit of Mr Dean Horne, who told about taking the publication and so on and so forth, very, very clear evidence, almost incontrovertible evidence, in my submission.

HIS HONOUR:   Whereabouts is this?

MR FITZGIBBON:   That, your Honour, is attachment C.

HIS HONOUR:   To what?

MR FITZGIBBON:   To the affidavit of the prosecutor.

HIS HONOUR:   This is the affidavit of Dean Gregory Horne?

MR FITZGIBBON:   Yes, your Honour.

HIS HONOUR:   Sworn on some date in September 2002?

MR FITZGIBBON:   Yes.  It seems to be an uncontradicted fact, your Honour, that New South Wales did not publish until the Friday.  On the basis of the arithmetic presented, they should have published on the Monday, so they were five days later than they should have.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Only one other matter, your Honour, basically this:  I think what I was putting to your Honour was that the candidate, or the prosecutor as a candidate if he had been accepted for that, is really arguing he had a real, not a remote, chance.  In the interval I have looked at the yellow book and an extraction from the yellow book and if your Honour wants to look through there, you will find that.  Robert Wood of the Nuclear Disarmament Party began with only 1.4 per cent of the vote and he was elected the senator.  So that tells your Honour the mathematics, if I can put it that way.

HIS HONOUR:   Yes.

MR FITZGIBBON: Finally – this is final from this point of view – your Honour, the court, although in dealing with the matter of the prosecutor in the lower court, it refers to section 364 of the Commonwealth Electoral Act.  With respect, there would seem to be, in my submission, a deficiency in the fact that although the judge appeared to in some areas to exercise that, I am reminded that the words, your Honour, were:

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

I simply raise that for your Honour’s attention because I believe that if it is applied, particularly to the first barrier he has to cross, then, indeed, the judgment I say is in error to that extent.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Basten.

MR BASTEN:   Your Honour, could I go just briefly to the amended order nisi which your Honour may have. There are a number of grounds raised in it, many of which assert that sections of the Constitution are relevant in one way or in another. I think it is page 4 at paragraph 9 a number of grounds are set out, most of which, I think it is fair to say, have little consequence for the present proceedings.

HIS HONOUR:   Yes.

MR BASTEN:   The matter comes before your Honour by way of an application for writs in substance against the judgment of the trial judge and therefore there is a need, of course, to establish jurisdictional error. The issue which my friend has addressed on and which your Honour has adverted to in relation to section 9 of the Constitution I think is in substance that set out in paragraph 14 of the amended order. I am not sure that I fully understand all of the language, but it is a complaint that:

The first respondent erred in law –

presumably a form of jurisdictional error rather than error within jurisdictional is intended –

in deciding on a plea of convenience –

well, I am not sure what ‑ ‑ ‑

HIS HONOUR:   I am sorry, which paragraph?

MR BASTEN:   I am sorry, paragraph 14, your Honour, at the bottom of page 4 of my amended draft order nisi of 25 February ‑ ‑ ‑

HIS HONOUR:   Yes:

the third respondent’s . . . as a consequence the power to issue the Order‑In‑Council –

We have a different document, I think.  I will hand you down the one I have.

MR BASTEN:   Yes.  Your Honour’s grounds start at paragraph 10, so that it is a different document, your Honour.  I am sorry, I do not know why that is, but it is paragraph 17 to which I was referring.

HIS HONOUR:   Yes.  I think the complaint is focused on that paragraph 40 of Justice Madgwick’s judgment, is it not?

MR BASTEN:   Yes, and it may be, as is now put, that the argument revolves around whether what is the scope of the election which is referred to in section 9, because what his Honour has in substance held was that setting a time for an election is setting a time and place for where the polling is to happen rather than dealing with matters of nomination and those sort of matters.

HIS HONOUR:   Yes.

MR BASTEN:   That was the argument that he accepted, so that in substance there was no issue on that view of the second paragraph of section 9 but that the Parliament had the power to do what it did and therefore any State legislation would give way in his Honour’s terms.

HIS HONOUR:   But there was no State legislation that gave way, was there?

MR BASTEN:   There was ‑ ‑ ‑

HIS HONOUR:   What is the State legislation that is given away?

MR BASTEN:   It is the Senators’ Election Act 1903.  I know your Honour has not been given a full copy of it.  Could I hand up a copy?  It is an internet version, I am afraid.  What his Honour did, I think, is to set out sections 4B and 4C ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR BASTEN:   ‑ ‑ ‑ in the judgment, but those are the sections which his Honour accepted were properly within the second limb of section 9 and therefore operated.

HIS HONOUR:   Yes.

MR BASTEN:   Now, that did not take the argument terribly far because 4B provides for dates which are the same as those contained in 157 of the Commonwealth Electoral Act, so that I think the argument needed to rely on 4A concerning:

the date fixed for the nomination of the candidates shall not be less than 10 days nor more than 27 days after the date of the writ.

Now, again, on one view, it does not matter very much because if the calculation deals with the return or the issue of the writ which is the writ for the senate election, then the calculation is the same under the Commonwealth and State Act.

HIS HONOUR:   What is the counterpart to 4A in the Commonwealth Electoral Act?

MR BASTEN:   Section 155, I think, but I will check that.

HIS HONOUR:   Section 155?  Yes, I think that is right.

MR BASTEN:   No, I am sorry, it is 156(1) for the date of nomination:

not less than 10 days nor more than 27 days after the date of the writ.

HIS HONOUR:   Yes.  It is rather strange that – and that section has been in the Federal Act for a long while I guess.

MR BASTEN:   Yes.

HIS HONOUR:   It is rather strange that the State legislated in 1984.

MR BASTEN:   Yes.  I think that was the date when the Commonwealth Electoral Act was recast.  I might be wrong about that.

HIS HONOUR:   That could be right.

MR BASTEN:   It was substantially recast at some stage and all the sections were renumbered.

HIS HONOUR:   Yes, I remember that.

MR BASTEN:   It was 144 of 1983.  I think that came up in Berrill v Hughes, I think, which your Honour was in which the Chief Justice kept referring to the old sections ‑ ‑ ‑

HIS HONOUR:   Yes.

MR BASTEN:   But, your Honour, assuming that there is an issue as to whether it is correct to think that ‑ ‑ ‑

HIS HONOUR:   You see the problem, I think, is that Quick and Garran, for example, says that the last sentence in paragraph 9 is an exclusive State power.

MR BASTEN:   Yes.  Well, I do not think we would quibble with that for the purposes of this argument, so that the only question – well, there are two questions, I suppose.  The first is, as your Honour noted, has the Parliament exercised its power?  The answer is it certainly seems to have in New South Wales and apparently elsewhere too.  The second question is, what is the extent of the exclusive power in relation to time?  The reference to the time of election of senators must be compared with the power in the Commonwealth to prescribe the method of choosing.

HIS HONOUR:   I know.

MR BASTEN:   I know election in some circumstances can involve all the stages and matters which go with the ultimate return of the writ, but in this circumstance it is clear that a distinction has been drawn so that the Commonwealth has power to deal with the method of choosing senators and the States’ exclusive power is limited to the time and place of the election.

HIS HONOUR:   The question is what is bound up by the notion of time, I guess.

MR BASTEN:   That is the time of an election.

HIS HONOUR:   Yes, the time of election – “the times . . . of election of senators for the State.

MR BASTEN:   Yes.  Now, if the complaint is, in this case, that his Honour was in error in that aspect of his judgment, then the question is what flows from that.  The point we sought to make in the written submissions was that for this prosecutor what flows is presumably that his nomination was no longer out of time and – this is in paragraphs 5.5 and 5.6 of the outline of submissions.

HIS HONOUR:   Yes, I have it.

MR BASTEN:   Accordingly, the rejection of his nomination constitutes an illegal practice within the terms of 352(1) of the Commonwealth Electoral Act.  The difficulty with that is that it brings him back into his failure to comply with 362(3).  Nobody did suggest in the petition that there was any issue of bribery or corruption, so that the court was controlled by the mandatory provision of 362(3) which says:

The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void:

(a)  on the ground of any illegal practice . . . 

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected –

That was what the motion which his Honour dealt with asserted, namely that there was nothing in the petition which would allow him, on any view, to be satisfied that the election would be affected by any error in relation to the rejection of the nomination.  His Honour dealt with that matter from paragraphs 17 through to 26 of his Honour’s judgment.  If I might just take your Honour to paragraph 23, he starts by saying:

It is immediately apparent that the petition is quite deficient in failing to set out the necessary facts.  The facts as to the result of the election, such that one might be able, even by a process of generous inference, to conclude that the exclusion of Mr Kelly and the other candidates in his group might, as a real possibility, have influenced the actual outcome of the election, are simply not there.

HIS HONOUR:   This is paragraph?

MR BASTEN:   Paragraph 23 of his Honour’s judgment, the first five lines.  I might say that between paragraphs 17 and 23 he has accepted the most generous view of what is required to be alleged in the petition that was put before him, including the extract from Sykes which I think your Honour may have looked at earlier.  Then at paragraph 26 he acts on the basis of his conclusions, namely:

The failure to assert facts regarding the likely effect on the election –

following Sykes resulted in a fatal flaw in the petition.  At the last three lines he says:

some factual assertion . . . should have been made.

So that as with each, I think, of the bases of challenge in the petition the matter failed before his Honour on that ground. The questions which might have been considered extraneous to the “illegal practice” grounds, although they were dealt with thereafter in paragraphs 28 and following, and included the method of election and the timing of the poll, it remains our submission that his Honour could, and probably should, have dealt with the timing issue on the same basis and, accordingly, the petition would have been dismissed without any need to discuss the particular interrelationship of the Commonwealth and State Acts and section 9 of the Constitution. That was the way in which we saw the matter being dealt with without the need to address section 9 and therefore section 78B of the Judiciary Act.

Your Honour, I think, dealing, if I may, in a rather brief way with what my friend was putting to your Honour this morning, the cases of Speyer and Grandchamp do not need to be addressed for this purpose because immediately one comes within the concept of an illegal practice in the Commonwealth Electoral Act, one is really confined to a petition which deals with matters on the basis set out in paragraphs 355 and following, including 362(3).  None of those paragraphs have any bearing or have any relevance in considering the overseas cases because they were not dealing with the scheme of this legislation.

HIS HONOUR:   Yes.

MR BASTEN:   The only other thing I wanted to say in that regard was that in the amended reply which I understand my friend relies upon there are references, in an attempt presumably to avoid the consequence of this argument on 362(3), to allegations of corruption and bribery.  I think my friend said this morning that he was not talking about corruption in the sense that the criminal law might mean it, but the fact of the matter is that the petition does not allege corruption in any sense at all.

Your Honour may recall that the terms “bribery” or “corruption” are defined in section 352(1) in a specific way, picking up the meanings given in section 326, and those are, indeed, the criminal offences of the various kinds defined there.  If one turns to ‑ ‑ ‑

HIS HONOUR:   Just pardon me a minute, Mr Basten.  Which paragraphs in the prosecutor’s reply?

MR BASTEN:   In the prosecutor’s reply, paragraph 11, where he is dealing with wrongful rejection of nomination.  He says:

The precise basis of the argument is that the conduct of the general election and ballot paper used for the poll . . . as pleaded in the petition at grounds two & three were defined by s352 of the CE Act and s28 of the Crimes Act 1914:

(a)  corrupt conduct within the meaning of s326(1) –

and I do not read the rest of it.  Your Honour will see that it does not quite fit with the definition.

HIS HONOUR:   That is just assertion, I am afraid.

MR BASTEN:   It is an assertion and ‑ ‑ ‑

HIS HONOUR:   It will not get anywhere.

MR BASTEN:   That is so, and I am not sure whether it is put differently.  If one goes back to the petition, grounds two and three do not assert that.

HIS HONOUR:   Yes.

MR BASTEN:   I merely refer to it because it would be a legitimate way, if it had been properly pleaded, to avoid the consequence of 362(3).  At paragraph 4.9 on what may be a different matter, although if it is additional, it will not assist the prosecutor at this stage, he says:

The prosecutor is a person whose group nomination . . . was rejected for alleged failure to comply with s170(2)(c) of the CE Act.

That relates to certain specific requirements in relation to nominations, but, again, it must have been an illegal practice, however it is formulated.  I think that was one of the grounds which was formulated in the original petition.  So that I am not sure once one abandons paragraph 8 whether there is anything which can properly be understood as dealing with an allegation other than something which constitutes an illegal practice and therefore is subject to the constraint in 362(3).

I am sorry to jump around a bit, but at 5.6 of the prosecutor’s reply he does seem to formulate in paragraph (b) again the allegation which is not pleaded but which seeks to rely on the pleading of corruption as asserted in the petition.

Now, if I am right that those arguments about corruption must really be put to one side, the prosecutor is squarely confronted with the fact that each of his grounds in seeking an order nisi in this Court will ultimately run into the prohibition in the qualification to 362(3) and therefore there are no reasonable prospects of success and on that basis it would be appropriate, we say, to dismiss the order nisi.

HIS HONOUR:   Now, can we just go back to section 9 of the Constitution for a minute ‑ ‑ ‑

MR BASTEN:   Yes, certainly.

HIS HONOUR:   ‑ ‑ ‑ and paragraph 43 of the judgment in the Federal Court.  What is his Honour speaking about when he says in the third sentence:

whilst there is a timetable provided for in the NSW Election Act, as to matters preceding the poll it has been displaced –

what is he talking about there?  What sections is he talking about with reference to that copy you gave me?

MR BASTEN:   Your Honour, I think he is talking in part about section 3, though not about the whole of it.

HIS HONOUR:   Of the State Act?

MR BASTEN:   Of the State Act, and 4 and 4A – relevantly 4A, I think, because he speaks in the first sentence of that paragraph about the Commonwealth Act determining “the dates fixed for the close of rolls and nominations”.

HIS HONOUR:   Yes.

MR BASTEN:   But not the times and places of the election.  So that that would pick up ‑ ‑ ‑

HIS HONOUR:   If 4A is in the same terms as 156(1), how would that have any – this is really a question for Mr Fitzgibbon, I suppose – but how would this have any impact on this case?

MR BASTEN:   As I understood the way that it was argued below, it was based on reliance on a definition in the New South Wales Interpretation Act about the meaning of the term “clear day”.

HIS HONOUR:   I see.

MR BASTEN:   Now, “clear day” does not appear, so it does not answer your Honour’s question very clearly, but that, as I understood it, was how the difference was said to arise.

HIS HONOUR:   I see. Section 36 of the New South Wales Interpretation Act?

MR BASTEN:   I am not sure if it was 36, but it was one of those provisions, your Honour, yes.

HIS HONOUR:   Yes, applied to 4A but there was no similar provision applying to the Commonwealth section 156(1).

MR BASTEN:   That was the argument, as I understood it, your Honour, yes.  There were two problems with it.  One is that the word is “day”, not “clear day”, and, secondly, it is a reference to the date of the writ, which is clearly the writ issued for the senate election under Commonwealth law.

HIS HONOUR:   Yes.  So before 78B notices had to be given I would have to be satisfied there was a question.

MR BASTEN:   Yes.

HIS HONOUR:   Because I will have to think about that.

MR BASTEN:   Yes.  We understood that that argument might be available and we did consider whether it was appropriate to give 78B notices.  The difficulty, as your Honour would appreciate, is that there are an awful lot of allegations in the order nisi ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.

MR BASTEN:   ‑ ‑ ‑ which your Honour probably would not have any concern about. If there is a specific question about the meaning of the term “election” in section 9, then we would understand that if our arguments as to why this matter could not proceed in any event are wrong might need to give rise to ‑ ‑ ‑

HIS HONOUR:   Yes, but if they are correct, it would not arise on any footing.

MR BASTEN:   No.

HIS HONOUR:   And if they are wrong, it might arise.

MR BASTEN:   That is so.

HIS HONOUR:   Yes, thank you.

MR BASTEN:   Yes, thank you.

HIS HONOUR:   Yes, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you, your Honour. Your Honour has already pre‑empted me, but Quick and Garran, of course, at page 427, paragraph 79, bearing in mind the lead up to this, says very clearly these powers are permanently and exclusively vested in the States. That is on section 9. The order nisi – let me put it this way, it would never have got to this point had ‑ ‑ ‑

HIS HONOUR:   No.

MR FITZGIBBON: ‑ ‑ ‑ so your Honour must and I am sure your Honour does, but basically the prosecutor does talk of the skewing of the poll and it is language that is remote in itself, but basically I think what he really is saying is that under section 9 there is a real question, in my submission, and, indeed, I believe I have put that to the Court as being the principal issue here. On that basis, I believe no matter how one deals what his Honour meant at page 15 of the judgment, and that of itself is not clear, in my submission, the fact of the matter is if the judgment is read as it stands, then it would be to derogate – directly derogate from the second part of section 9. That is where the issue really lies, in my submission.

So I am saying there is a real question there and I am putting to your Honour that it is appropriate for 78B notices, because really it is a States/Commonwealth issue.

Now, I have tried, your Honour, to separate the chaff from the wheat and I believe I have, as much as I have been able to, to do that and I believe that it is appropriate – that it really is a section 9 question and it is appropriate to seek to issue ‑ ‑ ‑

HIS HONOUR:   Well, I will have to think about that.

MR FITZGIBBON:   Thank you.  There is nothing really I can raise beyond that, your Honour, thank you.

HIS HONOUR:   Thank you.  Yes.  I will consider my decision and, according to the course I decide to take, it may or may not be necessary for us to reconvene.  Very well, the Court will now adjourn.

AT 12.21 PM THE MATTER WAS ADJOURNED