McGinty & Ors v The State of Western Australia

[1994] HCATrans 438

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Law Courts Building

TRANSCRIPT

OF PROCEEDINGS -- "'t-~

1 Victoria Avenue

Perth WA 6000

AUSCRIPT	GPO Box 9955 Perth WA 6001
Phone [phone]
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IDGH COURT OF AUSTRALIA

TOOHEY J

No P 44 of 1993

JAMES ANDREW McGINTY
GEOFFREY IAN GALLOP

STANLEY JOHN HALDEN

and

COMMONWEALTH OF AUSTRALIA

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PERTH

10.16 AM, TUESDAY, 16 AUGUST 1994

ms HONOUR: Mr Johnston?

IvfR P.W. JOHNSTON:  If it please the court, I appear with my

learned friend, IvfR P .G. LASKARIS, for the plaintiffs in this matter.

ms HONOUR: Yes, thank you. Ms Wheeler?

5	MS C .A. WHEELER:	May it please your Honour, I appear for the
defendant in this matter.

ms HONOUR: Thank you. Mr Staker?

IvfR C.R. ST AKER:  May it please the court, I appear for the

Commonwealth Attorney-General, intervening pursuant to section 78A

10           of the Judiciary Act.

ms HONOUR:  Thank you. Yes, Mr Johnston?

IvfR JOHNSTON:  Sir, this is a summons for an order under section 18

of the Judiciary Act that a case be stated to the Full Court of the High Court. The case stated is set out in annexure A to the summons and,

15           since there may be matters of timing which may affect the directions which your Honour may give, I thought I might, by way of brief introduction, indicate some of the aspects of the case stated, if your Honour is prepared to take the time to go through it.

ms HONOUR:  It all sounds rather cryptic.

20           IvfR JOHNSTON: Well, it comes down basically to this, if I can slash through to the nub of the issue. It really is the question of whether this is a case stated which could be heard by a court composed of less than seven justices or whether, for one of two reasons, it is a case which really does require the consideration of all justices of the court. We

25           appreciate that, this time, the assembly of a 7-person court is not easily

achieved and, in fact, may not be a real prospect say until April or May next year.

That could be accommodated within the time scheme that I was going to explain to your Honour that if the plaintiffs were successful in this it

30           would, of course, be a situation where the State Parliament would have to put through a new legislation and a new redistribution occur and so there would be a lead back from February 1997, which is the outside date at which the next election for the state would be held so that our submission will be that it can be accommodated at a May hearing if a

35           7-person court is not available before that date.

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HIS HONOUR:  Could we just take it step by step. So far as the case

stated itself is concerned and the order that is sought for the stating of
the case and the reserving of questions, is that consented to by the

defendant?

5 1v1R JOHNSTON: It is, sir. There has been some considerable

negotiation getting the actual terms and there is no difference of opinion

on that. Well, there is on the outcome of it.

HIS HONOUR:  Well, that is one way of putting it but let me ask Ms

Wheeler direct. Is there a consent, in effect, to an order in terms of

10           paragraph 1 of the summons for directions, Ms Wheeler, which is that an order be made for a case to be stated - well, it says: all questions reserved, I suppose it is: and questions reserved, for consideration of the Full Court in the terms set forth in annexure A.

MS WHEELER:  Yes, your Honour,-·there is. There are a couple of

15           small typographical matters that need to be sorted out before the case is actually stated. Subject to those being corrected, and they easily can be, there is consent to the stating of a case in the terms of annexure A.

HIS HONOUR:  Could that be done now because the order that I will

make will be for the stating of the case in terms of annexure A.

20           MS WHEELER: Yes.

HIS HONOUR:  Unless it is too time consuming. Can we clear up

those matters now?

MS WHEELER:  I think it can be done now.

1v1R JOHNSTON:  I think that it is only a matter of one word and the

25            comma, and they have been drawn to my attention by my learned friend. Perhaps if she just indicates them now.

MS WHEELER:  Yes.

1v1R JOHNSTON:	We are in agreement.
MS WHEELER:	Yes, I will do that now, your Honour. It just makes

30 

it easier to read.  If I can take your Honour to page 8, paragraph 17.

HIS HONOUR: Yes.

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MS WHEELER:  In the fourth line of paragraph 17 there is a comma

after the word "are" which does not assist to understand the sense of the

paragraph. If we could take that out.

HIS HONOUR: Right.

5 MS WHEELER: And then, over the page, on page 9, in paragraph 18,

in the fourth line from the top of that page, the first word "may", where
it reads, "In each of those regions may have been", the word "may"

should be deleted.

HIS HONOUR:  Yes, I see that.

10	MS WHEELER:	And they are the only alterations.
HIS HONOUR:	And that is the only matters you cavil at in the case
stated?
MS WHEELER:	Yes.

HIS HONOUR: Thank you.

15	MS WHEELER:	It is otherwise the subject of consent.
HIS HONOUR:	I take it that there is no problem with those two

matters, Mr Johnston?

:MR JOHNSTON:  No, sir. They were drawn to our attention and

they, in fact, as my learned friend says, make clear what was intended.

20           HIS HONOUR: Well, in due course I will make an order in terms of paragraph 1. Then that leaves the question of any further directions that

are sought. Am I being invited to fix a date because if I am that is an

:MR JOHNSTON:  Our proposal was we were - - -

25 HIS HONOUR: Well, just let me finish, because if that is an invitation

it will be declined simply because it is not possible at this stage to fix a

date for the hearing.

:MR JOHNSTON:  No, sir. In fact, it was not our intention to seek

that direction from your Honour this morning. I do have a draft of

30            proposed orders if that assists.

HIS HONOUR: Yes.

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:MR JOHNSTON: That is in terms of the action be set down on a date to be fixed so that it would leave open what your Honour is anticipating.

HIS HONOUR:	Thank you. Does Ms Wheeler have a copy of this
Mr Johnston?

5 :MR JOHNSTON: I think it has been handed down.

HIS HONOUR:	And does Mr Staker?
:MR JOHNSTON:	Yes.
HIS HONOUR:	Mr Staker, I did not invite you to comment on the
terms of the case stated.	Perhaps I should have but I assume there is no

10           problem with the content of it.

MR STAKER:  No, your Honour. The Attorney has no submissions in

respect of the actual content of the case stated although there were one or two other typographical errors that I think our solicitors drew to the attention of the solicitors for plaintiffs.

15 HIS HONOUR:  Well, I think I will leave that to the parties to sort

out.

MR ST AKER:  If it pleases the court.

HIS HONOUR:  I would imagine any of that calls for much comment

really, does it?

20 MR JOHNSTON:  No, sir, it is fairly open-ended, dealing with the

contingency of, we say - - -

HIS HONOUR:  That is why I am not clear what it was that you were

about to embark on.

MR JOHNSTON:  All it was I was going to say, sir, is that if I take
25	quickly, we are arguing that on the basis of the mal-apportionment between, effectively, metropolitan electorates and those in the rest of the you to the heart of our submissions and if I can summarise it very Because of that, we then say there is a number of infringements of, in
30	constitution. There are variations on a theme starting with a proposition

the first instance, the Federal constitution, the Commonwealth one ratio, or as near as practicable to that.

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That entails really taking McKinlay's case, Attorney-General for the Commonwealth, ex parte or ex roll, McKinlay, in 1975. We have to take that head on, as it were, and have the 6-person majority overturned on the issue of, in so far as that case held, that a one to one parity was

5           not required in relation to Commonwealth legislation. If that is to remain then we have to put that in context and seek the leave of the court to open that authority, or re-open the authority of it. So that would be factor number one as to why we would say that a 7-person court is necessary.

10           The other element is that the first step is to identify the relevant constitution limitations in the Federal constitution and there is a step which has, in a sense, been already addressed in the cases of Theophanous and the Stevens and the West Australian Newspaper case. That has arisen there as an issue but it is an important issue as to the

15           inter-relationship between Federal guarantees and state laws and, in this instance, state constitutions. So for both those reasons we would say that a 7-person court would be necessary and that was all I was - - -

HIS HONOUR: Yes, I appreciate that. Yes, thank you. Otherwise, Mr Johnston, having told me that you are seeking an order in terms of

20           the minute, are you?

:MR JOHNSTON:  That is so and perhaps in an advisory way, drawing
your Honour's attention to, when the date does come to be fixed, the considerations which we would see would be relevant to that.
HIS HONOUR:  You mean there are other matters you wish to tell me?
25	:MR JOHNSTON:  Those are essentially it, sir. I have already adverted

to the time frame issue, that if the court were to address a hearing to this issue in, say, April or May, that would probably allow time over

. the ensuing 20 months or so for necessary steps to be taken; although my learned friend, Ms Wheeler, has drawn my attention to the fact that

30           a redistribution, if necessary, under new legislation might take 6

months. So, our anxiety would be that if it were to be put down into,

say, August or whatever next year, to use an extreme case, the

time-frame would be rather compressed to take any remedial action.

HIS HONOUR:  Well, those matters appear on transcript and certainly

35           will be noted, Mr Johnston. Just while you are on your feet, just looking at the terms of the orders sought, the minute does not precisely identify annexure A as the case stated itself. I appreciate it does in relation to the questions reserved but maybe that needs some - - -

:MR JOHNSTON:  Precision.

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HIS HONOUR:  - - - prec1s10n, yes. Well, why not just paragraph 2:

the action proceed by way of the case stated in annexure A.

:MR JOHNSTON:  That, in our view, would be a sufficient indication.

I do not think anyone would misapprehend that.

5 HIS HONOUR: Well, if it just said: by way of the case stated in

annexure A under section 18. Yes, all right, thank you. Well, perhaps
again because of the way in which paragraph 3 is formulated, namely,
set forth in annexure A to the summons for directions, perhaps you
could include that in paragraph 2 as well. In other words: the action

10           proceed by way of the case stated set forth in annexure A to the " summons for directions dated 3 August 1984. And then under section 18 then you need not repeat that in paragraph 3. It will just be: the

agreed questions of law in the terms set forth in annexure A be entered
for argument. Yes, thank you.

15           Ms Wheeler, do you want to say anything about the terms of the

minute? 
MS WHEELER:  No, your Honour, I had no submissions to make in

relation to the terms of the order. I did wish to make a brief submission in relation to the timing of the hearing which, again, might be helpful to

20            have on transcript for a later time.

HIS HONOUR: Yes.

MS WHEELER: As your Honour will appreciate, this is a challenge to the Electoral Distribution Act under which an electoral re-distribution is currently taking place. If I could mention a couple of matters relevant

25            to the timing of that actual re-distributions. The last state election was held, as your Honour is aware, on 6 February 1993 and that makes the next one due at around February 1997.

[10.30am]

The timetable set out in section 3 of the Electoral Distribution Act,

30           which does not appear to be the subject of any challenge, requires just under 6 months for a redistribution to take place, because there are proposals to be put forward, public comment, advertisement and so on, and after any redistribution there would need to be time, presumably for preselections for the new seats set out. More importantly, as your

35            Honour will also appreciate, no doubt, the electoral distribution at present proceeds on the basis of a differential or a division of the state into, if I can just put it broadly, country and metropolitan electorates, and that is a fairly fundamental principle of the present distribution.

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If the plaintiffs were to succeed, the parliament would need to

reconsider that whole basis of the distribution, as I understand their
case, so that there would need to be some sort of agreement arrived at
within government, within the two parties making up the Coalition as to

5            what the new distribution ought to be, in broad terms. There would need to be draft legislation and then there would need to be a reasonable time for debate and passage through both Houses of the parliament. So we are looking at a fairly - or a very tight timetable if the hearing were to take place as my learned friends indicated, around April or May next

10            year.

There would not be much time for consideration before a decision really would be required, if there were to be a redistribution in time for the next election.

HIS HONOUR: Yes.

15 MS WHEELER:  That is the difficulty. So far as the defendants are

concerned, the defendants would prefer an earlier hearing even if it

meant not having a Full Court of seven justices. That is a submission
we make because of the difficulty of timing, but we appreciate, of course, the considerations my learned friends put forward as to,
20	possibly, the need for the plaintiffs to reopen earlier authority. If it

please your Honour.

HIS HONOUR:  Yes. Thank you for that. Mr Staker, do you want to

say anything on these matters?

MR STAKER:  Your Honour, I have no submissions on the actual

25 

content of the case stated, but I would submit that the argument that a 7- is being sought to reopen McKinley's case, which was a decision of a majority of six members of this court, but also because of the fundamental principles of constitutional law involved and the

30           uncertainties that might emerge if there was a majority of three members

be overturned in a subsequent case by a majority of four. of the court in any decision that might be given, that might subsequently HIS HONOUR: Yes, thank you. Yes, thank you. Well, those matters are on transcript and will be available to the court in the consideration of
35 ·	the fixing of the date and the constitution of the court itself. Since no
precise date is sought at the moment, I do not propose to give any directions in relation to the filing of material. That can be done closer to home, but parties can anticipate, I think, that comprehensive written
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Mr Johnston

submissions will be required. So I simply put you on notice as to that. proposed orders, with the order formulation I suggested to

in terms of paragraphs 2 and 3 of the minute. Otherwise, is there

5            anything else I need to - - -

MR JOHNSTON:  Just out of abundance of absolute caution, I think it
should be the case stated as amended, because it will comprehend the typographicals which we need to correct.
ms HONOUR:  Well, it does seem like an abundance of caution, does
10	not it?  I do not think we need to be too worried about that.

MR JOHNSTON: Right. Thank you, sir.

ms HONOUR: Yes, thank you.

AT 10.34 AM THE MATTER WAS ADJOURNED
INDEFINITELY

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