Muldowney v The Australian Electoral Commission; Muldowney v The Australian Electoral Commission

[1993] HCATrans 174

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Registry Nos C9 and Cl0 of 1993

B e t w e e n -

PATRICK KEVIN MULDOWNEY

Petitioner

and

THE AUSTRALIAN ELECTORAL

COMMISSION

Respondent

For Judgment

BRENNAN ACJ

Muldowney 43 25/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 JUNE 1993, AT 11.01 AM

(Continued fronr23/6/93)

Copyright in the High Court of Australia

HIS HONOUR:  In this matter I have reached the decision that

petition No. C9 of 1993 and petition No. Cl0 of

1993 do not comply with the requirements of

s.355(c) of the Commonwealth Electoral Act 1918,

and that pursuant to s.358(1) of that Act no

proceedings can be had on either petition.	I
publish my reasons.

The question now arises as to what is the

appropriate order to make in the light of that

ruling. There are, of course, provisions in the

Act as to the orders which the Court of Disputed

Returns may make. The summons, however, seeks a

"setting aside", whatever that may mean, of the

petition and it may be a matter of counsel

considering the appropriate order that should be

made in the light of the reasons for decision.

If counsel would wish an opportunity to

consider the reasons, I will adjourn for that

purpose.

MR ROSE:  I would ask if Your Honour would adjourn for that

purpose.

MR REFSHAUGE:  Thank you, Your Honour, yes.

HIS HONOUR:  Very well, I will adjourn. You can let me know

when you are ready in that case. My associate has

sufficient copies for you to peruse.

AT 11.03 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

HIS HONOUR:	Yes, Mr Rose?
MR ROSE:	If Your Honour pleases, I have discussed the

matter with my friend and we consider that the

appropriate order in each case would be to dismiss

the-petition under section 360(1)(viii) with no

order as to costs.

HIS HONOUR:  Very well.

MR REFSHAUGE: That is so, Your Honour.

MR A. LANGER:  Your Honour, I would like to draw your

attention to Order 68 rule 6 which gives a right to

any person to join the petition once it is

Muldowney 44 25/6/93

published in the State Gazettes, that is, any
person who is entitled to vote or has a right to

vote. It seems to me that you should not make

orders that affect the legal rights of persons who

have not yet had an opportunity to appear on a

petition which is a matter of public right rather

than a matter between the two parties, Mr Muldowney

and the Australian Electoral Commission.

It is essentially a petition to you as the

Court of Disputed Returns exercising the functions

of the House of Parliament that were originally

provided in the Constitution to be exercised by the

House itself and within transfer when Parliament

provided otherwise by the Commonwealth Electoral

Act. Such petitions are a matter of public rights

rather than private rights. There is a set

procedure in the High Court Rules of notice to all

persons, which includes all the members who are

affected by the petition, and any person who had a

right to vote at the elections concerned.

I believe that you should not dismiss a

petition until the parties who would be affected by

an order dismissing it have had an opportunity to

make representations to you about whether it is a

valid petition or not. Clearly, if it is not a

valid petition, then there are no proceedings on it

and you certainly would not be entertaining any

actual submissions on the subject.

But as to whether it is a valid petition or

not, Mr Muldowney is not the only person affected
by your decision that it is not. In my view, there
are very strong submissions that could be made that

the words "qualified to vote" mean what they say

and not as the Electoral Commission contends that

they mean whatever seems most convenient at the

time.

In the other proceedings which I am involved

in under C No 2, it was submitted by the

Solicitor-General that - he referred to a case of

"In re Lewis Carroll ex parte The Queen of Hearts",

suggesting that verdict should not come before the

trial. In this case, we are getting another series

from "Humpty Dumpty" from the same series of law

repo~ts in which it has been suggested quite

seriously that there should be no trial because the

petitioner is deemed not to be qua1ified when the

Act very clearly states the difference between

"qualification" and "enrolment".

Now, that point has been argued before you at

great length by both the Australian Electoral

Commission and Mr Muldowney but it has been done on

the basis of about one night's research with no

Muldowney 45 25/6/93

opportunity for people who have more extensive

research into both the statutory interpretation

involved and the background to the use of the words

"qualified to vote" in that section.

I have been doing some of that research. I

have been looking up the provisions as they were

originally introduced in the South Australian

Parliament; as they have been introduced in

legislatures right around the Commonwealth, and I

want the opportunity to prepare that material for

you and to make submissions to you on it. Thank

you.

HIS HONOUR:  I take it you are Mr Langer, are you?

MR LANGER: That is correct.

HIS HONOUR:  Yes. Having regard to the particular nature of

the jurisdiction of the Court of Disputed Returns,

I have permitted Mr Langer to make his submission.

I have heard his submission and I think there is no

substance in it.	I therefore propose to take the
course which the parties have agreed upon.	I

dismiss the petitions with no order as to costs.

MR REFSHAUGE: If the Court pleases.

AT 11.17 AM THE MATTER WAS ADJOURNED SINE DIE

Muldowney 46 25/6/93