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

[1993] HCATrans 173

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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 Directions

BRENNAN ACJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 JUNE 1993, AT 11.00 AM

Muldowney 23/6/93

(Continued from 18/6/93)

Copyright in the High Court of Australia

MR R.C. REFSHAUGE: If the Court pleases, I appear for the

petitioner. (instructed by Macphillamy, Cummins

and Gibson)

MR D.J. ROSE. OC: If the Court pleases, I appear for the

respondent. (instructed by the

Australian-Government Solicitor)

HIS HONOUR:  As to the procedure, is it Mr Rose's

applications that we should deal with?

MR REFSHAUGE:  I think it is, Your Honour. There have been

two further affidavits filed:  a very short one by

Ms Dawson for the respondent and, this morning, one

by the petitioner.

HIS HONOUR:	Yes, I have read both of those affidavits.
MR REFSHAUGE:	I read the petitioner's affidavit, yes,

Your Honour.

HIS HONOUR:	And you read Ms Dawson's affidavit.
MR ROSE:	Yes.

HIS HONOUR: Yes, Mr Rose.

MR ROSE:  If Your Honour please, the summons of the

respondent seeks the striking out of the whole of

the petitions in both the proceedings, C9 and Cl0,

with an alternative claim for a partial strike-out
in case those primary claims do not succeed. The

first claim is brought on the basis· that the

proceedings must be dismissed under section 358 of

the Commonwealth Electoral Act. Section 358(1)

provides that:

Subject to subsection (2), no proceedings

shall be had on the petition unless the

complied with.

requirements of sections 355, 356 and 357 are

Here we are concerned only with section 355 and

only with paragraph 355(c), so subsection 358(2) is

not relevant here. Section 355(c) requires the

petition to be signed either:

by a candidate at the election·in dispute or
by a person who was qualified to vote

thereat -

and, in our submission, the petitioner,

Mr Muldowney, was not qualified to vote at the 1993

election. He was not qualified because he was not

enrolled anywhere at the close of the rolls. The

Muldowney 9 23/6/93

affidavits by Ms Dawson of the Electoral Commission

and, indeed, so far as the actual fact of

non-enrollment is concerned, it is confirmed by the

petitioner's own affidavit that he was not, at the

time of that election, at the close of the rolls,

enrolled anywhere, either in the Division of

Boothby in South Australia or anywhere else.

HIS HONOUR:  The argument I gather is that he was entitled

to be enrolled and, had his entitlement been

satisfied, then he would have been entitled to

vote.

MR ROSE:  Indeed, Your Honour, and that is based on

section 93 of the Act, to which I now invite

Your Honour's attention. Section 93(1) provides

for the entitlement to enrolment, and that exists

in the case of anybody who has attained the age of

18 and who is an Australian citizen, or certain

other alternative qualifications. That provides an

entitlement to enrolment, but it is only

section 93(2) that provides the qualification or

entitlement to vote. Section 93(2) says:

Subject to subsections (3), (4) and (5) -

which are not relevant here -

an elector whose name is on the Roll for a

Division is entitled to vote at elections of includes that Division and at elections of

Members of House of Representatives for that

Division.

There is a slight difference in the wording of

355(c) and section 93 inasmuch as the word used in

section 355 is "qualified"; an expression is
"qualified" to vote, whereas section 93 uses the

expressions "entitled to vote" in subsection (2)

and "entitled to enrolment" in subsection (1).

But, in my submission, the different uses of the

word "qualified" and "entitled" do not have any

significance. It seems to be a change in drafting

style, as one can see, for example, from

section 99(1) which says, "Any person qualified for

enrolment", et cetera. For consistency of language

one would have expected to see the expression,

"entitled to be enrolled" or "entitled to

enrolment', but nothing seems to tu~n, in my

submission, on that difference in language.

HIS HONOUR: 

What I cannot quite understand is the use of

the term "elector" in 93(2), having regard to the
fact that "elector" is defined to mean by 4(1):

Muldowney 10 23/6/93

Any person whose name appears on a roll as an

el~ctor.

MR ROSE: Yes, that is another drafting -

HIS HONOUR:  There seems to be a piece of tautology there

somewhere.

MR ROSE:	It is, indeed, but one would have to say that the definition in section 4(1) only applies unless the contrary intention appears. So, I suppose one has
to read "elector" in section 93 as meaning: a
person who would, if qualified, be an elector.
HIS HONOUR:	We find in 99(2) the same phrase, do we not?
MR ROSE:	If their name is on the roll, I suppose it is

appropriate then to call them an "elector", or a

potential elector, I suppose, if one is going to

be - - -

HIS HONOUR: Yes.

MR ROSE:  In terms of the close of the roll being the

determining time, I would refer Your Honour to

section 155, which provides that:

The date fixed for the close of the Rolls

shall be 7 days after the date of the writ.

And section 152(l)(a), which requires a writ to:

"fix the date for:

(a) the close of the Rolls.

There is no discretion, of course, under

section 155, it has got ·to be "7 days after the

date of the writ". Just perhaps to complete the

set of provisions, I should refer also to

section 101(4), which makes provision for claims
for enrolment that are received after the _close of

the rolls and before polling day, and there are

special provisions in relation to those, but it is

apparent from the affidavits before Your Honour

that those provisions are not relevant here.

In addition to section 93(2), there is also

section 221(1) and (2). Section 221(1):

In the case of a Senate electron, an elector

shall only be admitted to vote -

is the expression -

for the election of Senators for the State or

Territory for which he or she is enrolled.

Muldowney 11 23/6/93

And similarly, subsection (2):

In the case of a House of Representatives

election, an elector shall only be admitted to

vote for the election of a member for the Division for which he or she is enrolled.

That might just be saying, the person who is

enrolled can only vote either in the State for the

Senate, or in the particular division rather than

in some other division but, nevertheless, the

intention is clear that the qualification or

entitlement to vote is limited to persons who are

on the roll.

I should also invite Your Honour's attention to some provisions which apply in a special case

where, although a person is not qualified or

entitled to vote, through not being on the roll,

nevertheless their vote can be counted in some

special circumstances. That can arise if a person

turns up at the polling booth and is found not to

be on the certified list which is provided by the

Electoral Commission to the officers in charge of

polling booths.

Your Honour will see those provisions

beginning in section 235. It is not necessary to

go through all the details; if I can just draw

Your Honour's attention to section 235(l)(a):

(1) This section applies to a person claiming

to vote if:

(a) the person's name cannot be found on the

certified list of voters for the Division for

which the person claims to vote -

HIS HONOUR:  What is the relationship between a certified

list and the roll?

MR ROSE:  A certified list is sent out - it is of course

compiled from the roll. It is certified by the	Electoral Commission and copies are provided to
each of the returning officers.

HIS HONOUR:  Can you draw my attention to that provision?

MR ROSE:  I cannot immediately, Your Honour. I will find

out and let Your Honour know as soon as I can.

HIS HONOUR:  A provisional vote is not put into the ballot

box in the same way, is it?

MR ROSE: That is right, Your Honour. If I can just

mention, section 208 I am told is the section

dealing with certified lists of voters. That is:

Muldowney 12 23/6/93

The certified list of voters to be used by a

presiding officer at a polling place -

If I can come back now to section 235, they are

provisional votes. A person signs a declaration in

an approved form on an envelope and the polling

official signs a declaration; that is in

subsections (3) and (4). They are provisional
votes; they are defined as "forms of declaration

votes". Your Honour will see that in section 4(1):

"declaration vote" means:

(a) a postal vote .•..•

(d) a provisional vote -

"Provisional vote" is defined as meaning a vote

cast under section 235. From there, one goes to

section 266(3):

A preliminary scrutiny for a Division shall be

conducted according to the rules set out in

Schedule 3.

Then we get into even more o.f a labyrinth.	If we
turn to Schedule 3 - - -

HIS HONOUR:  Does it end up that there must be a

satisfaction that the applicant for the vote is on

the roll?

MR ROSE:  No, Your Honour, it is the exception. It might be

best if I took Your Honour immediately to
paragraph 12 of Schedule 3 - it is on page 291, if

Your Honour has the reprint. It is dealing with

declaration votes, so .all envelopes containing

declaration votes have to be dealt with in this

way. Paragraph 12:

applies to an envelope if the DRO -

divisional returning officer -	is satisfied:
(a) that the elector who signed a
certificate ..... is not enrolled ..•.. and
(b) after making enquiry:
(i) that the elector was, at the time of voting, entitled to be enrolled ••... and
(ii) that the omission of the elector's name
from the Roll for the Division was due to an

Muldowney 13 23/6/93

error made by an officer or to a mistake of

fact.

"Officer" of course is defined in section 4(1) in

terms of the Electoral Commission officers, and so

on. From paragraph 12 of Schedule 3, one goes back

to paragraph 10 which requires:

the DRO shall divide the envelopes ..... into

groups as follows -

Group (b) is a group of envelopes to which

paragraph 12 applies; that is paragraph l0(b). As
part of the journey through the labyrinth, it

concludes at paragraph 18 which says:

Ballot-papers withdrawn from envelopes referred to in subparagraph l0(a) or (b) or ll(a) or (b) shall be placed in a ballot-box

by themselves for further scrutiny.

And so it proceeds.

There are two submissions I would make in

relation to those very special provisions: first,
that the expression "entitled to be enrolled" for

the division occurs there in 12(b)(i), but that
this is a provision which does not affect the
entitlement or qualification of a person to vote
but simply allows the vote if the person chooses to

make one in the form of a declaration vote; allows

the vote to be counted in those situations.

Now, they are not applicable here, in my

submission, because the petitioner, according to

his own affidavit, said he did not vote. So there

was no evidence, certa~nly no suggestion, that he

attempted to avail himself of those provisions, and furthermore, of course, even if he had, there would be issues as to whether the apparent failure of his

1991 claim, electoral enrolment claim form, whether

that involved any error made by an officer or to a

mistake of fact and, in my submission, the

evidence, of course, would fall far short of

establishing that if it were at all relevant at

this stage.

So, in my submission, one is taken back in

these circumstances to the fundamental question:

was he qualified to vote within the·meaning of

section 355(c)? And the submission, as I have made

it, is that that means the same as being entitled

to vote. Since he was not on any roll at the close

of the rolls, he was simply not qualified to vote,
and, in accordance with section 358, the petition

cannot be proceeded with.

Muldowney 14 23/6/93

HIS HONOUR:	Yes.
MR ROSE:	May it please, I do not seek to make any further

submissions on that first issue, but would move to

the second paragraph of our summons, which is to
the effect that even if he were regarded as

qualified to vote it was only in the electorate of

Boothby, as far as the House of Representatives was concerned, or qualified to vote for the South

Australian senators who were elected at that time,

and the petition, in that respect, is not in
accordance with the Act since it is not open to a
person to challenge more than the House of

Representatives election in the division for which

he was qualified to vote, or for the senators for

the State in which that division was situated.

Mr Muldowney, of course, is not seeking to

challenge the elections of senators other than
those from South Australia, but he is seeking to
challenge each and every one of the elections of

the members of the House of Representatives in that

election and, in my submission, even if he were

qualified to vote in Boothby, he is not entitled to

challenge the elections of any members other than

the member elected for that division of Boothby.

HIS HONOUR:  This relates to C9 of 1993 but not to Cl0, is

that right?

MR ROSE: Yes, Your Honour. Cl0 is the challenge to the

senators for South Australia and we do not query

his right to bring that challenge, or would not be

querying it if he were enrolled in any South

Australian electorate. But for C9, on the assumption, which we say is not well-founded, but

on the assumption that he were qualified to vote in

the electorate of Boothby, it is only the election of the member for Boothby that he could challenge.

Section 355 - I suppose it is more appropriate

to begin with section 351 as the basic provision

concerning disputed elections, and that reads

that - section 353, Your Honour:

The validity of any election or return may be

disputed by petition addressed to the Court of

Disputed Returns and not otherwise.

Well, "petition" of course, is base'd. on the view -

the assumption - that the reference to any election

includes the entire, what is often referred to and

is referred to in the Act as "the general

election". So that section 355 on the petitioner's

view would have that same meaning: a petition

disputing an election can be a petition disputing

an entire general election. Whereas, in my

Muldowney 15 23/6/93

submission, the reference to an election in those
provisions, in the case of the House of

Representatives, is simply referring to the

election of a member from a division. The

expression "general election" is, of course, used
colloquially to mean the entire collection.

HIS HONOUR: Well, it is not only used colloquially, is it,

it is used in the Act?

MR ROSE:  Yes, indeed, Your Honour. A number of provisions

of the Act, for example, section 154, which deals
with the writs for a general election, and it is

not the only section which uses that expression,

but it makes it clear that it is not one writ

issued for the entire general election; writs are

issued for the various States:

Only 8 writs shall be issued for each general

election, namely;

(a) a writ that relates to the members to be

elected from New South Wales -

et cetera. And when one goes back to section 355,

the significance of the reference to the writs
becomes apparent, because section 355(e) requires

the petition to:

be filed in the Registry of the High Court

within 40 days after the return of the writ -

In my submission, that would be only dealing with the writ for the State, if we are dealing with

elections of members from States. It is only the
writ dealing with the State in which the particular
division is situated.

Various sections of the Act use the expression, "the election" in relation only to the

particular division. For example, in sections 277

to 279, one finds some examples of that.

HIS HONOUR:  What would be the procedure if there were some

breach of the provisions relating to a general

election, for example, that the relevant writ was

signed by the inappropriate person?

MR ROSE:  The election of each member could be challenged by

a person qualified to vote in that -member's

division.

HIS HONOUR:  But no court would have jurisdiction to

challenge the entirety of the election?

Muldowney 16 23/6/93

MR ROSE:  The challenge would be comprised of the

combination of all those separate petitions which,

of course, could be heard together.

HIS HONOUR:  No doubt that could happen, but would the

High Court, for example, have jurisdiction before

the election was held to grant an injunction?

MR ROSE:  I think, Your Honour, the election has to proceed

and this is the only method of challenging.

HIS HONOUR:	Even though, to use the language of administrative law, it was a nullity?
MR ROSE:	I think the Court would not have jurisdiction to

challenge it. The election would have to go ahead.

HIS HONOUR: Well, it is something, I suppose, we do not

have to decide at the moment.

MR ROSE:  No. The election would go ahead and then, as I

say, would be capable of challenge by a person in
each of the divisions who was qualified to vote,

and then out of that may come the new election, but

there is no jurisdiction for the Court to hold up

the electoral process. Pending determination of
those issues, the general principle of the election
matters is that the election proceeds and is

challenged afterwards.

HIS HONOUR:  So your general submission would be that there

is an area of non-justiciability?

MR ROSE:  Or that it is simply ruled out by the terms of. the Electoral Act.

HIS HONOUR: Well, and is therefore not justiciable.

MR ROSE:  And not justiciable.

HIS HONOUR: It raises some interesting problems.

MR ROSE: It does, indeed, Your Honour.

HIS HONOUR:  Yes. I take it your argument is that the

jurisdiction that is invoked in these petitions is

the jurisdiction of the Court of Disputed Returns,

and that is limited in the way that you have

submitted.

MR ROSE:  That is limited in the way I have submitted.

HIS HONOUR: Yes, I follow that.

MR ROSE:  One gets other references to an election in terms

of an election in a particular division from the

provisi9ns about declarations of the poll in return

Muldowney 17 23/6/93

of the writs, in section 284, for example. I am

not aware of any Commonwealth or United Kingdom

decision on issues like this, but in State

elections there have been a couple of attempts to

challenge an entire general election. The

authorities are rather tangential; I am not sure

whether the lack of authority in other

jurisdictions indicates that it has been regarded

as an obvious point or whether it is just that

nobody has been as imaginative as Mr Muldowney up

to date. But, be that as it may, the State cases

to which I would refer Your Honour, and I have

copies of. them; could I hand them up.

In the Surfers Paradise election petition in

1975 in Queensland, apparently one Mr Soegemeier

did precisely that, challenged the entire election,

as Your Honour will see from page 117.

Mr Justice Dunn said that on 6 February he had

held, for reasons which he then stated, that the

petition:

called in question the validity of all the

last Queensland State elections, which were

held on 7 December 1974.

He said that that did not comply with the

Queensland Act. Now, the reasons which he then

stated are not reported; we are endeavouring to

find out whether there is anything on the

Queensland Supreme Court file which indicates what

his reasons were, so perhaps this does not help

very much, but I did feel obliged to bring it to

Your Honour's attention.

I have attached copies of the Elections Act of

Queensland, which may partly explain the particular

decision there, because the Queensland Elections Act did talk about a petition complaining of the

undue election or return of a member. So, perhaps

there was no room for any doubt that it did not

enable a petition of all the members. But, be that

as it may, it failed for the reason apparently

stated by Mr Justice Dunn.

The other State case is the Tasmanian one, perhaps even more tangential, but the language

here, in the Tasmanian legislation, is rather

closer to the Commonwealth Act, as Your Honour will

see from the bottom of page 1 and ~rt the footnotes

on the bottom of the second page of the report.	It
is a section which, beginning at the bottom of
page 282:

A person who -

Muldowney 18 23/6/93

(a) desires to dispute any election or

return .•...

may, by petition ..... seek a declaration, that

the election or return is void -

and it went on to say a petition must -

be signed by a candidate at the election in

dispute or by one-twentieth of the electors

qualified to vote thereat -

The crucial expression is the reference to

"the election" and there is a question there

whether a petition could be brought challenging the

election of more than one member. In the event,

the Tasmanian Supreme Court said yes, but that was

because the Tasmanian divisions are ones from each

of which five members are elected.

HIS HONOUR:	Yes.
MR ROSE:	The court rejected the argument that in those

circumstances the petition had to be limited to one

member and said it could extend to the five members

from the Electorate of Dennison, but an argumentem

ad absurdum or whatever, was put - Your Honour will

see from the bottom of page 286 because counsel for

the petitioner had submitted that:

if those challenges could be made in one

petition, what provision is there to stop

challenges being made to all thirty-five

members of that House in one petition?

If Your Honour turns to page 288, in the middle of

page 288 Your Honour will see

Mr Justice Nettlefold's interpretation of that

Tasmanian provision as saying, right in the middle of 288, that the term "election" must include:

(a) an election of a member of the Legislative

Council for a particular division;

(b) in the case of a General Election for the
House of Assembly, the choosing of seven

persons -

I am sorry I said five, but it is seven persons

from each of five divisions - ·

to serve as members and to represent any one

of the five divisions -

and then, in certain unusual circumstances:

Muldowney 19 23/6/93

the choosing of a person to serve as a member
of the Assembly -

He does not positively exclude the possibility that those provisions extend to a challenge to all 35 members, but I think it is perhaps a reasonable inference from what he says that that was his view

in terms of the denotation of the term "election".

HIS HONOUR:  I take it Mr Justice Dunn's judgment in

Queensland was not referred to in this Tasmanian

case?

MR ROSE:  I believe not, Your Honour. Well, in my

submission, therefore, even if Mr Muldowney was

qualified to vote in any division, he was only
entitled to challenge the election for that
division and the senators for that State, and on

that basis the petition in C9 should be, if not

entirely struck out in accordance with our first

paragraph, it should be struck out in relation to
all except whatever division he is thought to have
been qualified to vote in; presumably Boothby would
be the only candidate on his evidence that he has

been resident there since 1991.

HIS HONOUR:  That would raise another problem then, would it

not, and that is whether there are any facts

alleged in the petition which would warrant a

declaration of the invalidity of the election of

Mr Steele Hall who, according to the petition was

the member returned for Boothby.

MR ROSE:	Yes.
HIS HONOUR:	But that is not a ground that you are pursuing

at the moment; the question of the form of the

petition?

MR ROSE:  No, Your Honour. In terms of the - I will just

revert to the question of qualification for

enrolment.	I should have drawn Your Honour's
attention to the various procedures that follow
upon a claim for enrolment.	The entitlement to

remain on a roll; there are provisions, for

example, 21 days in which one can continuing living

in one electorate before having to transfer to

another, so there can be situations where a person

is on the roll for a division in which the person

is not, at the time, still resident.: The third

paragraph, if Your Honour pleases, of our summons,

raises an issue which does take us into the
substantive allegations in the petitions.

In our submission, they all concern either the

publicizing or the statements of intention to
enforce section 329A, which is said by the

Muldowney 20 23/6/93

petitioner to be unconstitutional as invading

freedoms of communication in relation to elections.

The allegations in the petition go slightly beyond

that in the sense that some of them, paragraphs 12

and 15, refer to conduct in or for the purpose of

proceedings in Parliament. So there is the further

difficulty, in my submission, that they would be

Court in relation to proceedings in Parliament,	seeking a review by the Court, or a judgment by the
contrary to the Parliamentary Privileges Act of
1987.
The objection in paragraph 3 of our summons is that since all the allegations in the petition
really amount to allegations only of conduct that
is either, by way of publicizing or seeking to
enforce, or threatening, in the language of the petition, threatening to enforce a section which is
in the Act, though under constitutional challenge,
not only in these proceedings but in other
proceedings brought by Mr Langer, which are
referred to in the petitions, that that constitutes
conduct on the basis of which the election can be
declared, or should be declared, void.
Our submission on that issue is that the Act does not contemplate that conduct of that nature
before the High Court has declared the provision to
be invalid, this Act does not contemplate conduct by way of publicizing or enforcing it according to its terms; it does not envisage that that conduct
would be the basis of an electoral petition. The
Electoral Commission, and other persons, are entitled to proceed on the basis that the section 329A in this case is valid and it cannot be
regarded as being within the scope intended by
Parliament for concepts of illegal practices or
undue influence, or whatever it may be.

In that respect, Your Honour, it does seem to

be an entirely novel point, though analogies have

occurred in other contexts, and for that purpose

can I hand Your Honour this excerpt from a decision

by Mr Justice Dixon in one of the James v the

Commonwealth.	I would invite Your Honour's
attention especially to page 373.	It was a claim

in tort and did not involve the application of

'legislation, but in our submission it is

beginning:

sufficiently analogous to be regarded as relevant.

The ground upon which I decide this part of

the case against the plaintiff is that the

Commonwealth incurs no liability for tort

merely because A is induced to refuse

performance of what turns out to be in fact a

Muldowney 21 23/6/93

civil duty to B by an intimation made to A by

the officers of the Commonwealth that, under the law of the Commonwealth, A is not merely

absolved from the performance of the duty but

is forbidden under penalties to do what would

amount to performance and, by doing it, would

expose himself to prosecution; provided that

the officers act honestly in the purported
execution of their duty to maintain and
enforce the laws of the Commonwealth and,

perhaps reasonably, as, for instance, on the

faith of a statute not yet held to be invalid.

Even if the plaintiff overcame the other

difficulties I have mentioned, this ground

would be fatal to his claim for wrongful

procurement of breaches of duty by common

carriers. I do not think that a bona fide

assertion as to the state of the law and an
intention to resort to the courts made known

to the third party can be considered a

wrongful inducement or procurement.

And we would say it cannot be considered a ground on which an election can be declared invalid.

The situation is simply that the Executive,

charged with the execution of the law, under a

bona fide mistake as to the state of the law -

if that is what it is -

proposes to proceed by judicial process. The

courts are established by and under the
Constitution for the purpose, among others, of

determining whether the Executive is or is not mistaken in its view of the law which it seeks

to enforce against the individual, and

judicial process is the appointed means for

bringing the question up for decision.	To
treat a proposal or threat to institute

proceedings as a wrongful procurement of a breach of duty is to ignore the fact that,

assuming bona fides, the law always

countenances resort to the courts, whether by

criminal or civil process, as the proper means of determining any assertion of right. In all other cases of procurement to be found there

has been an element of impropriety, or of

reliance upon some power or influence

independent of lawful authority. An intention

to put the law in motion cannot be considered

a wrongful procurement or inducement, simply

because it turns out that the legal position

maintained was ill founded.

HIS HONOUR:  It is not directly in point, is it?

Muldowney 22 23/6/93

MR ROSE:  My submission was that it is sufficiently

analogous to be regarded as establishing the

general approach to be taken in relation to

allegations against the Electoral Commission here,

that it was publicizing and seeking to enforce this

particular section of the Act, without the section

having been declared invalid and that the approach

envisaged by the Electoral Act would not be that

the conduct of that nature should be regarded as

constituting any illegal practice or undue

influence or in any other way sufficient to found a

challenge to an election.

HIS HONOUR:  Yes, ·well, I suppose it depends very much on

the meaning of "illegal practice", does it not?

MR ROSE:  It does indeed, Your Honour, and certainly, taken

out of its context, one could say that it extends

to any conduct which is, in fact, contrary to law,

whether by way of being an offence or in some other
way unlawful but, in this context, it is not

envisaged by the Parliament that an election could

be challenged. In this case it would be each and

every one of the elections of the members of the

House of Representatives, because the alleged

conduct is not said to have been confined to one

division - it was nationwide, so to speak - and

that the Electoral Act would not envisage that

conduct of that nature should be such as to found a

challenge to the election.

If it has any relevance at all, Your Honour,

that passage from James v The Commonwealth was

referred to by Your Honour in the case in the

Administrative Appeals Tribunal in Re Adams (1976) if I can complete the - it is to the same effect

until the High Court decides that the legislation

is invalid. The executive is entitled to act upon

it and by reference to the "executive", I include

the Electoral Commission and its officers. There

are ways of challenging constitutional validity

and, in my respectful submission, they do not

include a challenge to an election on that basis.

HIS HONOUR: Again, Re Adams was dealing with a tribunal

that was not exercising judicial power.

MR ROSE:  I mentioned it, if Your Honour pleases, because of

references to the executive and to the exercise of
administrative powers and they are precisely what
the Electoral Commission is doing.

HIS HONOUR: Yes, I understand the argument but the argument does not quite meet the ground which is advanced in

paragraph 3. Paragraph 3 of your summons is that:

Muldowney 23 23/6/93

the Court of Disputed Returns is therefore not

empowered to declare -

Now that, as I took it, was referring to the

jurisdiction of the Court of Disputed Returns, to

consider whether or not particular provisions of

the Electoral Act are valid or are not.	Your
argument is a different one, as I take it.

MR ROSE:	Yes, Your Honour.
HIS HONOUR:	And that is that the question of whether they are valid or not is not material to the question of
whether there has been any illegal practice.
MR ROSE:	Indeed, Your Honour, we are not submitting that

the Court has not jurisdiction to decide the

constitutional issue.

HIS HONOUR: Well now, that proposition seems to me to run

into the difficulty that, on an application

essentially to strike out, you have to demonstrate

that the case is so clear that the continuance of

the proceedings would virtually be an abuse of the

Court's process. And that is a fairly heavy burden

in relation to this proposition.

MR ROSE:  It is a heavy burden to describe it as an abuse of

process but the submission is that it is clear and

at this stage I cannot take the submission any

further. If Your Honour pleases.

HIS HONOUR: Yes. Yes, Mr Refshauge.

MR REFSHAUGE:  Thank you, Your Honour. Might I hand up to

Your Honour some outline of submissions.

HIS HONOUR:	Thank you.
MR REFSHAUGE:	I am sorry, Your Honour, I have not produced

enough copies. Could I have one copy back for my

friend? I will arrange for a copy to be provided

to the Court Reporting Service.

The submissions are divided into three parts referable to each of the questions, as my friend

has. The first question is, obviously, the

question of who could sign the petition, the

question of interpretation of section 335(c). And

to go to the nub of it, we say that. ·there is a

distinction between "qualified" and "entitled". My

learned friend used the words a number of times in

his submissions synonymously and we say that in the

Act there is an intention and a usage which is

consistent with common sense and policy where those

two words have different meanings. "Qualification"

Muldowney 24 23/6/93

is, logically, prior to enrolment which is the

requirement for the entitlement to vote.

That is to be seen by the use of different

words. Your Honour has already adverted to the

question of "elector" as a defined term and that, of course, is synonymous with one who is enrolled and therefore under section 93(2) entitled to vote.

We say that if the legislature had intended and

wanted to limit those who might challenge an

election, then they would have done it by using the

word "elector" or by using the words "person who

was entitled to vote". Indeed, of all the

combinations that are used in the Act, the legislature used the only one that, on any

construction, could allow a person such as the

petitioner to apply by petition to challenge an

election.

One thinks of "person enrolled to vote" or

"person entitled to vote". Neither of those would

cover the situation of the petitioner. And

"elector" or "an elector enrolled in a division" or

"an elector entitled to vote" would, of course, not

cover the petitioner because he was not an elector

within the meaning. So that if one -looks at a

matrix of the phrases that are not entirely

consistently used throughout the Act, then we say

that the only phrase that would allow an individual

who was not enrolled has been used by the

legislature.

That is, we say, for good reason because it

may well be that the very problem about enrolment

is one of the reasons why the election would need

to be challenged or should be challenged; that the

failure to enrol ought to allow persons to vote

would be a basis of challenge. One can think of a

number of circumstances. For example, if one goes

to section 41 of the Constitution, it provides
that:

No adult person who has or acquires a right to

vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of

the Commonwealth from voting at elections for
either House of the Parliament of the

Commonwealth.

So that notwithstanding anything contained in

the Commonwealth Electoral Act 1918, in that Act,
the Constitution provides a franchise in itself and
were there to be a refusal to allow persons not
enrolled but under the Constitution qualified to
vote, we say it is inconceivable that those

enfranchised persons would be disbarred or could be

Muldowney 25 23/6/93

disbarred from challenging the election.
Otherwise, they would have to rely upon some other

person who was enrolled or entitled to vote to make

the challenge for them and, that, in our

submission, would not be consistent with the

intention of the Act, nor with justice, nor with

the policy of allowing elections to be disputed by

persons who have a relevant interest. So, we say

the qualifications are those set out, inter alia,

in section 93(1).

HIS HONOUR:  Before you go past there, am I to take it that

the petitioner relies on section 41 of the

Constitution as having conferred upon him a right

to vote?

MR REFSHAUGE:  No, Your Honour, that is not so.

Your Honour, the reliance on section 41 is to show

that -

HIS HONOUR: Is textual only.

MR REFSHAUGE:  - - - the domain of the franchise is wider

than the domain of those who are electors and that

therefore "qualified" means more than that.	Now,
Your Honour, in that sense I do not say that

"qualified" means electors and those who qualify

under section 41 of the Constitution. We say that

the meaning of "qualified" is a member of the

franchise, those entitled to be electors. I will

come to a section in the Act which, in our

respectful submission, reinforces that in a moment.

But I do not rely on section 41 factually and I do

not say that "qualified" means those under the
Electoral Act plus those under section 41 of the

Constitution.

What I do say is that the franchise is set out

in section 93, namely, persons who are 18 years of
age and Australian citizens, and that accords with

democratic principle. Those are the persons who

may challenge because those are the persons who

have a relevant interest in the outcome of the

election. They are the people, as it were, who are
electing the government.

HIS HONOUR:	What do you say as to the heading of Part VII?
MR REFSHAUGE:	Your Honour, what we say in relation to that

is that that means that those who aEe qualified for

enrolment are persons who have attained the age of
18 years and Australian citizens plus what is set

out in section 93(l)(b)(ii), but if I can use the

shorthand of "18 years and Australian citizens".

They are the persons who are qualified. The

process then is that they are enrolled and that

enrolment gives them an entitlement to vote and

Muldowney 26 23/6/93

that entitlement is an evidentiary process to
ensure, as the American cases have it, the purity
of the ballot, and that the entitlement to vote,
the enrolment, is not a qualification but is an
evidentiary process and a means of ensuring the due

administration of the ballot.

In part, that can be seen by what my learned

friend, with respect, quite rightly described as

the labyrinthine processes for provisional votes

whereby persons who are not enrolled, who are not

entitled to vote, nevertheless have the

qualifications and, having the qualifications,

their votes may be counted because the central

concept is that of qualification and the

entitlement is merely an administrative evidentiary
process that is engrafted on that for sound

administrative and sensible reasons but which,

certainly in relation to the challenge of

elections, does not prevent a person who is not

entitled to vote challenging that election.

The reason for that is clear, that the very

failure to be entitled to vote may well be the

basis for the challenge. If someone who has been

improperly excluded from voting, although

qualified - and qualification is fundamental,

because that is the question of a franchise - but

if qualified, should be in a position to challenge

the election.

HIS HONOUR:  The argument, I suppose, against that is that

the integrity of the rolls is an administrative
necessity to the conduct of an election, and

therefore a qualification to vote which has not resulted in enrolment is a matter which must be

dealt with, if at all, under the provisions of the

Act relating to enrolment and not in relation to

the election itself.

MR REFSHAUGE:  Your Honour, that would certainly be an

interpretation, but we say that it is not the

interpretation that should be preferred because

that would mean that if the failure to allow a

person to vote because of the question of

qualification was such that the outcome of the

election was thereby affected, the election would

not be able to be challenged, notwithstanding that,

for example, a large number of voters were unable

to vote.

An example of that would be, although it did not result in that, King v James, the 18-year-old voting case from South Australia, the reference to

which I do not immediately have. But that was a

case relying on section 41 and, at the end of the

day, the court held that 18-year-olds who were

Muldowney 27 23/6/93

enrolled to vote in South Australia were not
thereby entitled to vote in a federal election

where the age of majority at that stage was

21 years.

We would say that were that situation to arise

and persons who were entitled under section 41 to

vote and if there were a large number of them, so

that the outcome of the election might well be

materially affected, there would be no way in which

they could challenge the election. We say that is

contrary to policy because, although they may be

able to challenge the decision of the Electoral

Commission not to enrol them, for example, were

that to be the issue, under section 41 there is no

question of enrolment. So the question of their

entitlement really does not arise in terms of

challenging any enrolment.

So the purity of the roll in that sense is

constitutionally limited, and we say that the

entitlement to challenge the election is wider than

simply the entitlement to be on the roll. In a

sense, the Act accepts that by the methods outlined
for allowing persons who are not on the roll

nevertheless to cast a provisional vote and, in

certain circumstances, to be allowed to vote.

Those persons are clearly qualified to vote but

they are not entitled in the sense that it is used

in the Act to vote. So "qualified" means more than

entitled to vote because, in any term, they would

be qualified.

HIS HONOUR:  What you say is if they are entitled to be

enrolled and on that account to vote.

MR REFSHAUGE:  Yes, Your Honour, because that is what

section 93 says. Section 93(1) combined with (2)

says if you are entitled to be enrolled, then you

are entitled to vote.	We say if you are qualified,
then you are entitled to enrol.	So that the

qualification is the fundamental status, and that

is what qualification really means; it means

status. Entitlement is the legal consequence and

it may, we say here is, predicated on an

administrative process, but the administrative process does not limit the qualification. The

administrative process is just that; an

administrative process which is designed, inter

alia, for evidentiary purposes and.obvious

administrative convenience.

Your Honour, if one looks at section 163 of the Act, one sees the word "qualified" is used and

it is used, we say, again in that sense of a

quality possessed by the relevant person. If one

goes to paragraph (c), one does not even have to

Muldowney 23/6/93

have gone through the administrative processes

because you do not have to be an elector - again, I

think it is a hendiadys, is it not; an elector

entitled to vote. They are the same thing. You

can be qualified to become an elector.

So the word "qualified" is used in terms of the status prior to the administrative act of

enrolment which gives the entitlement which can be

exercised. That entitlement may be able to be
exercised only in accordance with the Act. It may
be that the petitioner would not have been able to

vote because, as my learned friend observed, it is

probable that he would not have come within

clause 12 of Schedule 3. It is arguable that there

may have been an error, but there is no evidence
from which Your Honour can conclude that .there was

an error by an officer. It may have been an error by Australia Post or it may have been misadventure

or something else possibly.

So he would not have been entitled because of

that, but we say he possesses the qualifications

and is therefore qualified in the same way as a

candidate does not have to be an elector; he only

has to be qualified to be an elector. That picks

up his status and his qualification.

Your Honour, perhaps for completeness I should

hand up the page from the Oxford English dictionary to which I have referred in my submissions which we

say confirms that ordinary meaning of "qualified".
I am sorry the photocopying is not as clear as it should be, but certainly the meanings as opposed to

the quotations I think are clear enough.

1. Furnished with, or possessed of (certain)

qualities.

or -

Attributively: Possessed of good qualities -

Well, that is not clearly not necessarily so,

unless one says that an Australian elector or an

Australian citizen of 18 years is a person of good qualities per se; many would perhaps agree. And 2 again is relevant:

Endowed with qualities, or possessed of

accomplishments, which fit one for a certain

end, office or function.

Again, the concept of inhering attributes that

allow for the administrative processes, election or

appointment to an office, to take place.

Muldowney 29 23/6/93

3. Legally, properly, or by custom, capable of doing or being something specified or implied.

And there is an ecclesiastical meaning, and I do

not think the fourth meaning is perhaps relevant,

and the fifth meaning then goes on to an

alternative one, which is where "qualified" is used

synonymously with "modified" or "limited". And we

say that therefore the word "qualified" is not

simply a matter of drafting difference between the

sections, but is one where the word is deliberately

used and is used distinctively, compared to those

other words "entitled to vote" or "elector", which

are elsewhere used in the Act.

Your Honour, it has been drawn to my attention

only this morning, and I am afraid I have only got

a partially illegible copy, but perhaps it is

sufficient to draw the point, and that is of the

speeches in the Senate in 1902, when the

Electoral Act 1902 was being enacted. The

Electoral Act 1902 has precisely the same part, or the part in relation to the Court of Disputed

Returns is identical to that which we are now

considering, but the section in relation to

qualification is somewhat different, and the actual

section is set out at the top of page 10,791 at the

left-hand column, and it is enclosed by two

vertical lines. Your Honour will see that it says:

All persons qualified to vote at an election for the Senate or House of Representatives, or

who would be qualified so to vote, if the

names were upon a roll.

And Senator O'Connor, in the speech there, in our submission, uses the word "qualification" in

precisely this way. At the bottom of page 10,790

at about point 9, he says:

That section fixes definitely, that the persons who are qualified to vote for the

House of Representatives, are those who have

the qualification to vote in a State,

according to the law of the State, for more
numerous Houses of Parliament. It was not

intended to limit the right to vote to persons

who are merely on the rolls. In some States

two things are necessary to en~itle an elector

to vote: first of all he must ·have the

qualification as to residence for a certain
time and in addition to that, in some of the

States, he must have his elector's right. If

he has lost that right, he is not entitled to

vote for the House, notwithstanding that his

name appears on the roll. According to the

Commonwealth Constitution, however, he has the

Muldowney 30 23/6/93

qualification and therefore the right to vote.

In tge same way, in some of the States, where

electors rights are not provided for, it is

necessary that a man's name should be on the

roll before he can vote. It may be obvious

that he is entitled to vote, but because his

name has been omitted in some way from the

roll, he is not able to vote. He would come

under this section, however, as a person

qualified to vote.

We say that, at the earliest, when that word

"qualified" was inserted, it had a clear

distinctive meaning that was not limited to being

on the rolls, or subject to that administrative

process that requires enrolment.

Your Honour, I have referred to the policy reason for that which is set out in American

Jurisprudence, and I do not think I need to take

Your Honour to that. For completeness, might I

hand to Your Honour those relevant cases. It is, I

concede immediately, a somewhat different situation

because it is a situation where there is more

clearly maintained a distinction between a

registered voter and a person who is qualified to

vote. But, clearly, the distinction is made and

the policy is there.

In summary then, Your Honour, we say that

"qualified" to vote was a deliberately chosen word;

that it is wider than either "elector" or "a person entitled to vote". It is designed to allow persons

other than those who are on the rolls to challenge,

and that includes, for example, persons who are

qualified under section 41 of the Constitution or, for example, under clause 12(b) of schedule 3, and we say there is a denotation and that denotation is

clear and that is a member of the franchise - the

franchise is set out in section 93 of the Act,

namely, a person who is above the age of 18 years

and an Australian citizen, with the additional

qualifications - and as such, the petitioner is

clearly qualified to vote and therefore is entitled

to petition.

HIS HONOUR:  Is there any authority which indicates whether

section 41 of the Constitution operates to

invalidate a law of the Commonwealth or to confer

on an individual a personal right?.·

MR REFSHAUGE:  Your Honour, the only case on section 41 of

which I am aware is King v Jones. I do not think

it directs itself to either of those points but

Your Honour will be able to satisfy yourself about

that.

Muldowney 31 23/6/93

Your Honour, in relation to the second point

as to whether the petitioner is entitled to dispute

a general election, we say, in summary, that the

word "election" is a general word. It is used in

that sense within the Act. The definitions in

section 4 of the Act define only three kinds of

elections: general elections, House of

Representative elections and Senate elections.

"General election" is a term within the Act.

General elections are different kinds of elections in the sense that there are different rules relating to them.

My learned friend drew Your Honour's attention

to one of those and that is section 154. One might
wonder whether if what my friend said was true

perhaps, if his argument were valid, although a
petitioner might not be able to challenge the whole

of the election, if the writ is so important then
perhaps there is an intermediate stage where, at a

general election, a petitioner can challenge the

election in a State. So that if the petitioner

here were qualified to challenge or entitled to his

petition then, as in the Senate, perhaps he is

entitled to challenge the whole of the election for

South Australia. But we say that is not the

interpretation.

The words in section 353 are quite clear.

They are talking about any election - election with

a small "e", it is not a defined term - and when

using the definitions in section 4, that term is
used to include general elections, House of

Representative elections and Senate elections and

therefore the word should be given its ordinary

meaning. We say there is no reason in law or in

policy why it should not be possible to challenge a

general election.

If, for example, there was a general

irregularity, indeed, such as this one is, which

infected the whole of the election, we say it

cannot have been intended by the legislature that

it relied simply on happenstance as to whether the

election under, for example, an invalid law could

be challenged or not. So that one would have the

situation where if, for some reason, the petitioner

in one or two electorates failed for some reason

such as not being able to get the petition lodged

in time - it was lodged a day late~ or, Fabre v

Lee, the cheque that was used was not acceptable

for the deposit, and so you had then a situation

where everyone else, the 146 other candidates were

challenged but one was not, even though the law

might be invalid. We say that that happenstance

would be required; by what my learned friend says,

you would have to have 147 petitioners throughout

Muldowney 32 23/6/93

the country in order to challenge a general

election on the ground of invalidity. That was

general.

HIS HONOUR:  That is in relation to the jurisdiction of the

Court of Disputed Returns. That may not be a fatal argument to Mr Rose's contentions because one can understand that this Court of Disputed Returns

might have jurisdiction conferred upon it to deal

with the status of particular members, whereas

other relief might be available under the general
jurisdiction in relation to general elections or

other is•ues.

MR REFSHAUGE:  The difficulty with that, Your Honour, is

that the Court of Disputed Returns would then be

determining some members and not others and you

would have a distinction between those the subject

of a petition and those not if it was left to the possibility of each electorate, each subdivision,

or each division, having to find a petitioner who

was willing to sustain the rigours of litigation in

order to challenge for what might be a good and

proper ground of irregularity that was,

nevertheless, general.

HIS HONOUR:  Yes. This, perhaps, goes into this third

ground, but I am looking at section 362, for

example, which deals with the question of legal

practices and there it seems that the jurisdiction
of the Court is directed specifically to the

election of a particular candidate, does it not?

MR REFSHAUGE:	Yes, Your Honour.
HIS HONOUR:	I am not sure how this affects the present

application, but let it be assumed that in some

general sense the enforcing of 329A could be

regarded as an illegal practice.

MR REFSHAUGE:  Yes, Your Honour.

HIS HONOUR:  How would that engage the jurisdiction under

362?

MR REFSHAUGE:  Your Honour, it would be necessary to show

that each candidate whose election was challenged

on the ground of an illegal practice had committed

that practice.

HIS HONOUR: That is a submission that runs you into

difficulties in 355(a), Mr Refshauge.

MR REFSHAUGE:  No, Your Honour, because we do not say,

Your Honour, that there need be a necessary

congruence between the petition and the method of

proving the irregularity. We say that once it is

Muldowney 33 23/6/93

accepted that a petition can challenge a general

election then the ordinary processes of the Court

are sufficient to determine whether the method that

has been used is appropriate, so that the parties

can be limited, for example, if the allegations are

not, in that sense, general.

HIS HONOUR:  As I say, the problem may not arise on this

present application, but I must confess, it comes

as a surprise to think that there could be a

procedure which would empty out 147 members from

their seats without any of them being told that

these proceedings were pending against them. And
the grounds on which each of them was to be emptied

out.

MR REFSHAUGE:  Indeed. Your Honour, there is nothing in

what the petitioner proposes, either in the

petition or indeed in the directions we have

sought, that denies them that right. Certainly

they have not yet been brought here to argue these

particular points. But, indeed, we would say that

in relation, certainly, to the third point, that

that is as Your Honour has, with respect, rightly

observed, really a strike-out application, that we

say it is not appropriate on what has been
submitted to Your Honour to determine now, although

it is a matter that obviously would be raised at

the hearing. But, in relation to this point, we

say that the words of the statute are clear and

unambiguous.

The words "any election" are sufficient to

encompass a general election but there is nothing

in the statute to suggest it does not. Indeed, in

contradistinction to some of the State cases, for

example, "general elec-t;:ion" is defined and used as

a term relying upon that word "election" and

therefore there is no basis for reading into, for

implying in section 353 a limitation that neither

offends against the words of the section nor

against common sense or manageability. There are

difficulties, clearly, with one petition that seeks	to challenge the entitlement to sit of every member
but there is no doubt that if a point was one that
did so inffect every member there could be,
conceivably, 147 petitions and the difficulty for the Court would be no different.

Indeed, it would be more convenient, clearly,

for there to be one petition, one allegation, one

hearing, one set of parties, and the principles in

relation to preventing multiplicity of litigation,

and so on, would be well met. There is no reason

why the word "election" cannot bear both meaning,

namely, the wider meaning of the whole of the

election, the general election, and the narrower

Muldowney 34 23/6/93

meaning of the election of an individual member at

one and the same time. It is clear, for example,

that each of the senators is elected, there is an

election of each senator, but there is also an

election for all the senators of South Australia

and there is an election for the Senate. So that

"election" has, in itself, not so much an ambiguity

but a concurrency of meaning and in this Act the

legislature has deliberately allowed it, at least,

the meaning to include a general election.

Your Honour did ask rhetorically of my learned friend one question which I may be able to assist

Your Honour with, even though, I suppose technically it may be against me. But, there has

been a dicta in the High Court in relation to the

question of a challenge by injunction by the

High Court and in McKenzie v Commonwealth, 59 ALJR

190, at page 191, and that was an application for

an injunction prior to the holding of an election,

His Honour said right at the bottom of the

left-hand column on page 191:

I am by no means satisfied that s353(1) of the

Act, which provides that the validity of any

election or return may be disputed by petition

addressed to the Court of Disputed Returns and

not otherwise, would prevent this Court from

interfering by injunction if a challenge were

successfully made to the provisions of the Act

on constitutional grounds.

And he distinguished it from an earlier decision of

Berrill v Hughes, a decision of Justice Mason, as

he then was. But, nevertheless, we say that the

mere concurrency of jurisdiction in that way is not

fatal to our argument. Indeed, that, in any event,

is referring to a different situation and that is

injunction to restrain the holding of an election, not what one would see as complicated results that

would have to flow if the High Court were to,

outside this Act in its original jurisdiction, seek

to construct orders that would give effect to the

holding of a new election consequent upon

injunctions, or declarations, that because of the
invalidity of an Act an election then past would

have to be reheld. Clearly, there would be

because the structure, as it were, ,is already

enormous convenience in allowing the Court of

there. So whilst there may be concurrent

jurisdiction, unless there is some reason in the

Act to prevent the Court of Disputed Returns from

dealing with a general election in that way, if the

High Court has that jurisdiction anyway there is no

reason why the Court of Disputed Returns should not

have that jurisdiction. If it does, it is clearly

Muldowney 35 23/6/93

more convenient for the Court of Disputed Returns

to deal with it than for the High Court.

In relation to the third point - I must

confess, and my written submissions clearly

indicate this, that I had understood the point in

the way that Your Honour put to my learned friend,

namely, as a jurisdictional one since, as I

understand it, that has now been disavowed save to

rely on the well-known dictum of

Chief Justice Latham in South Australia that an

invalid statute is a nullity and therefore can have

no validity. We say that there is no substance in

what my learned friend says. In relation to James

v The Commonwealth and Adams v The Tax Board, we

say those are entirely different circumstances.	It
may be if an action for tort or, indeed, if any
criminal proceedings were preferred, then those

principles would prevent them from succeeding, but

this is not the question of the holding of a person

or an institution responsible under grounds of

responsibility, this is the question of whether an

election was a proper election conducted in

accordance with the rules relating to elections and

whether there is any responsibility in the sense of

blame, or blameworthiness.

There is no doubt from the terms of the

petition and other material that Your Honour may

have read in relation to the associated matter of

Langer that the petitioner holds certain views

about blame, but the issue here is whether the

election ought to be set aside because there is an

irregularity, or an impropriety, if I can use those

general terms, cognizable by the Court of Disputed

Returns such as to require the election to be set

aside.

HIS HONOUR:  Again, it may not arise in the form of the

third count in the summons, but let it be assumed

that your argument is correct on this allegation:
that it was unlawful to seek to enforce a·

limitation on voting freedom consistently with

section 329A of the Act. What is the jurisdiction

of the Court, or the powers of the Court, under

section 360, which would cover the relief which you

then seek? Now, I presume it is under

paragraph (vii) to declare the election absolutely

void.

MR REFSHAUGE:  Yes, and that, in fact, is the relief sought

in the petition.

HIS HONOUR:  But what is the justification for declaring an

election void, because the Electoral Commission

conducted itself in this fashion?

Muldowney 36 23/6/93

MR REFSHAUGE:  We say, Your Honour, that it prevented the

free exercise of choice by the voters, who were

prevented from being able to be advised of a legal

alternative that was available to them when

considering how they would deal with the ballot

paper.

HIS HONOUR:  But how does one link that with the result of

any election?

MR REFSHAUGE:  Your Honour, that is an evidentiary problem,

I am not trying to deflect Your Honour's question,

but that is an evidentiary problem, and we would

say that there are statistical methods of showing

that - - -

HIS HONOUR:  That would be to consider it seat by seat,

would it not?

MR REFSHAUGE: Well, that is one possibility, Your Honour,

but there would also be general statistical

analyses, because of the fact that modern

communication is now much more general.

HIS HONOUR:  Yes, sure, but let us assume that you are able

to demonstrate, for example, that if the Electoral

Commission had not done what it had done under

section 329A, that there would have been an

increase in the informal vote of, say, 5 per cent,

and you have got seats with a 10 per cent margin

one way, seats with the 3 per cent margin. Now, I
can see that your argument might then be, well, if

there was something wrong with this, some illegal

practice, then the election of the seats with the

3 per cent margin should be declared void. But

what effect would it have on the seats with the

10 per cent margin? And that, in turn, leads to

the question of: is it a challenge to a general

election?

MR REFSHAUGE:  Your Honour, there is no doubt that the

3 per cent margin seats are covered.	In relation
to the 10 per cent seats, certainly the likely

outcome of the election would not be affected, and

therefore, on ordinary principles of election law,

it is unlikely that the Court would disturb that

election. However, we say that that is not an

immutable principle, and because of the way in

which that situation came about, the election as a
whole should be set aside and not j~st in what one

might call the marginal electorates. And if it is

possible we attempt to tread the fine line between trespassing on the Parliamentary Privileges Act in

saying that the circumstances under which the

invalid enactment, as we say it is, came to law,

are relevant to that.

Muldowney 37 23/6/93

HIS HONOUR:	Yes.
MR REFSHAUGE:	So that it is not a case where - - -
HIS HONOUR:	But is is tantamount to saying that the general

election, because of the conduct of the Electoral

Commission, was a nullity?

MR REFSHAUGE:  Yes. Certainly, put at its highest, that

would be the petitioner's contentions.

HIS HONOUR: Well, it has be the -

MR REFSHAUGE: It.has to be; it does, yes. Your Honour, I

say that because if Your Honour were against us on

that, it would certainly be our contention that we

should be entitled to challenge, certainly, at

least Boothby, which I assume is the division that

one would would - if one can cut down the

petition - we would say one can, because the

additional material is really surplusage, but it

does not detract or deny the challenge. The

difficult area is the one in the middle which I can

only assert, Your Honour, there is clearly no

authority in this area and, in my submission, that

is at least arguable that when challenging the

general election the petitioner is entitled to

challenge those persons who are elected where the

alleged irregularity or impropriety was actually

effected and so that, in that sense, the petition

does not have wholly to succeed or wholly to fail,

but can succeed in part in relation to those

members who have either engaged in such conduct or

whose election was infected by the irregularity in·
the marginal sense.

So, in that sense, I say the nullity is at the highest, but I concede what Your Honour says, that

that is certainly prima facie the obvious

consequence of an entitlement to challenge a

general election.

HIS HONOUR:  It may not arise at this stage, but I can see

at some future stage it will be a problem for you

to address if you survive this hurdle.

MR REFSHAUGE: Indeed. And, Your Honour, clearly, to some

extent, a final determination of question 3 would
really need in part to depend upon some further

evidence and we say that although tn the form in

which it is put we do not say question 3 could ever

arise because the Court, for the reasons briefly

alluded to in the written submissions, could set

aside an election because an act was invalid, if
the act had such an effect as to invalidate the

election, either indirectly or directly.

Muldowney 38 23/6/93

HIS HONOUR:	Yes;
MR REFSHAUGE:	So there would be a question of, perhaps,

some evidence, but it could not ever arise, but the
issues behind those words, as elucidated by my

learned friend in his submission, are, in effect,

what will have to be decided on the hearing of the

petition, and it is not appropriate to deal with

that summarily in these circumstances. Those are

our submissions. If the Court pleases.

HIS HONOUR:  Mr Rose.

MR ROSE: If Your Honour pleases. First, in relation to

section 41 of the Constitution: I do recall a

second case in addition to King v Jones; Re Pearson

ex parte Sipka - I regret I do not have report and

a defunct provision, protects only those who had a

I cannot give Your Honour the exact reference, but

I think it is somewhere in the 140 Commonwealth Law

State franchise before Federation.	The
significance now is spent.

In relation to the points submitted by my

learned friend, he began with the proposition that if the respondent's submissions were correct, then

one would expect to see the word "elector" in

section 355, rather than "a person qualified to

vote". But I think that is another one of those

drafting points, because if one looks at the

definition of "elector" in section 4, it means:

any person whose name appears -

in the present sense

on the Roll -

and so in many of the sections where they talk

about "an elector" it can have that sense, of a

person whose name is on the roll at that time when

get the idea into section 355, that it applies only	the section is to operate. But, if one is going to
to a person who was entitled to vote, or whatever,
at that particular election that is in dispute,
then one has to define or use the word "elector" in
relation to that particular election, and one can easily see, in my submission, how the draftsman
decided not to use the word "elector", but simply
to go straight to it: a person who is qualified to
vote at the election. And so, in my submission, the fact that the word "elector" there is not used
is easily explicable consistently with my
submissions.

Muldowney 39 23/6/93

My learned friend's submissions to the effect

that the enrolment serves an evidentiary function

relating to an underlying qualification to vote,

which is something different, in my submission,

seriously underplays the significance of the roll

in electoral law. It really is central to the

operation of elections and the Act must be

understood on that basis.

The provisional voting provisions in

schedule 3, I submit, do not indicate that there is

somehow a general underlying qualification to vote

but only that in some cases where persons are not

entitled or qualified to vote, their votes may

nevertheless be counted in those very special

situations where they have satisfied a divisional

returning officer of those things.

My learned friend referred to section 163(c)

where the expression "qualified to become an

elector" is found but, of course, that is not the

same as "qualified to vote", so it is entirely

consistent with our submission that "qualified to

become an elector" means a person who is entitled

to enrolment. It does not mean that they are

qualified to vote.

The 1902 debates mentioned by my learned

friend concern those difficult transitional
provisions in the Constitution and in the very

first Electoral Act and, in my submission, really

have lost their relevance and should not be relied

upon as extrinsic materials in relation to the

current Act where, for example, one finds

section 99 talking of the "qualified for

enrolment". ·

In terms of the policy of allowing someone who

is not enrolled to challenge an election, one, in

my submission, sees an underlying notion in the Act

that it is only a person who is entitled to vote in

the sense of being on the roll.	If a person has
not taken the trouble to get on the roll for an

election, it would be rather surprising that

nevertheless the person should be able to dispute

the election on the basis of some entitlement or

qualification to get on the roll. Maybe, on the
evidence, in this particular case, Mr Muldowney was

not on the roll because something happened with his

1991 claim form, but the legal submission by my

friend would be just as applicable.to somebody who

simply could not be bothered to enrol, and later on

comes along purporting to challenge a particular

election on the basis that although he or she was

not on the roll, they had, nevertheless, a

qualification to vote. In my submission, that

would be a surprising intention to ascribe to the

Muldowney 40 23/6/93

Parliament that somebody in that position should be

able to ispute the election.

A similar point, Your Honour, could be made in relation to the second question whether there is an entitlement to challenge a general election and not just the election in a particular division or

State. There, again, it is intelligible to

understand the whole structure of the Act as

centred around a concept of an election in a

particular division, though with certain references

to a general election, for obvious reasons.

A person who is entitled to vote in a

particular division for the House of

Representatives or for senators from the State

where he or she is enrolled has an obvious interest

in the conduct of the election within those limits

but, again, in my submission, the policy underlying
the structure of the Act is that it is no concern
of somebody enrolled in one division to be
challenging an election in another division even if

the ground of challenge may well be one that, in

this case, allegedly, is nationwide. The solution

there is limited to challenges in each division by

a person on the roll in that division.

HIS HONOUR:  I am just looking at the provision that I

gather would have enlivened the Dickson

supplementary election, section 180(2). The

election for a member to represent the Dickson
division would have been part of the general
election but yet it says in section 182, in the
circumstances that occurred there, "the election
shall be deemed to have wholly failed", which seems

to suggest it is the Dickson election.

MR ROSE:  Indeed, Your Honour.

HIS HONOUR: Unless one says, "The general election fails on

such an account", but that cannot be intended.

MR ROSE:  It cannot be intended and it is a provision

similar to those provision on recounts and

declarations of the poll and so on where the

election referred to is quite plainly the election

in the particular division. That concludes my

submissions, if it please Your Honour.

HIS HONOUR: Yes, thank you, Mr Rose.

I will consider my decision in this matter and

I will give my judgment as soon as possible. The

parties will be informed as soon as it is available

for delivery.

Muldowney 41 23/6/93

I take it that it will be appropriate to

inform you, Mr Refshauge, on behalf of the

petitioner?

MR REFSHAUGE:  Yes. I think a notice of appointment of

solicitor has now been filed, Your Honour.

HIS HONOUR:	I see. Well then, notice will be given to you and to you also, Mr Rose, I take it.
MR ROSE:	Thank you, Your Honour.
HIS HONOUR:	The Court will adjourn to a date to be fixed.

AT 12.53 PM THE MATTER WAS ADJOURNED SINE DIE

Muldowney 23/6/93