Mulholland v AEC

[2003] HCATrans 490

[2003] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M272 of 2003

B e t w e e n -

JOHN VINCENT MULHOLLAND

Appellant

and

AUSTRALIAN ELECTORAL COMMISSION

Respondent

Application for injunction

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 NOVEMBER 2003, AT 9.30 AM

Copyright in the High Court of Australia

MR B.F. QUINN:   If your Honour pleases, I appear for the appellant, who is the moving party.  (instructed by Ebsworth & Ebsworth) 

MR P.J. HANKS, QC:   Your Honour, I appear with MR P.R.D. GRAY for the respondent.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   Yes, Mr Quinn.  Mr Quinn, I have looked at the papers that have been filed.  You, I take it, move on the affidavit of Mr Mulholland that was sworn 18 November 2003, is that right? 

MR QUINN:   That is correct, your Honour. 

HIS HONOUR:   Is there any objection to that affidavit? 

MR HANKS:   None, your Honour. 

HIS HONOUR:   Thank you.  I have read that affidavit, Mr Quinn, and I have read your submissions.  Although this may be a question that is primarily for Mr Hanks, perhaps, what do you say, Mr Quinn, happens if injunction is granted and if that injunction was still operative when a Senate election was called?  Now, there are several assumptions about when a Senate election can be called and, as I understand it, the first half Senate could not be called before 30 June or could not be held before 1 July; a double dissolution can happen at any time, but leave aside when it happens.  What happens, if a Senate election is called, to this proposal to deregister the party?  Is it open to the Commission, after the issue of a writ for a Senate election, to go ahead and deregister the party? 

MR QUINN:   We would say no, not after the issue of the writ. 

HIS HONOUR:   Because you say 138A(2) bites. 

MR QUINN:   It bites.  It prohibits the action, the conduct. 

HIS HONOUR:   Yes.  I understand that is the position taken by the Commission, that once the writ issues then you are on the register and everything must go forward to that election with you still on the register and with the processes to remove you from the register thus interrupted.  Now, it may well be that Mr Hanks will tell me that I am wrong, but that seems to be an important point which he sought to make, namely, that if an election is called, they cannot continue the process if they are enjoined from doing it and it goes forward with the party still on the register, with all the consequences that follow from that, even though they have started this process to deregister you under provisions which, at least for the moment, we are to take as being validly on the books.  What is the answer, if any, that is to be made to that contention? 

MR QUINN:   As far as I can see, that is the only point that they have in their favour and I can answer it in this way ‑ ‑ ‑

HIS HONOUR:   It is a point which seems to be advanced, at least.  What do we do about it? 

MR QUINN:   Your Honour, that problem will not be resolved by your Honour not granting the injunction, for reasons that I explain in the submissions, but I put it this way.  The dilemma which faces the respondent now is whether to act or not to act.  It is the uncertainty which attaches to the constitutional position, and that was made clear in its letter to the Senior Registrar seeking expedition.  So, yes, your Honour must assume that the provisions are valid at the moment, but that does not mean your Honour has to assume that they will be found valid when this Court determines the appeal.  The consequence of that is that the dilemma will remain regardless of whether your Honour grants the injunction today or not. 

HIS HONOUR:   Can you explain to me again what the dilemma is, what you say the two horns of the dilemma are.  One, I think, we have just identified.  What is the other horn of the dilemma? 

MR QUINN:   The dilemma is, if the Commission acts and deregisters and the election is held, and subsequently the Court determines that the relevant provisions are invalid, then the effect of that will be that the ballot paper was incorrect in any case, or the register ‑ ‑ ‑

HIS HONOUR:   You have gone forward to an election with the various difficulties which are asserted by Mr Mulholland in his affidavit, various prejudices that you ‑ ‑ ‑

MR QUINN:   That is right.  Leaving aside those prejudices and just addressing the position that the respondent would be in, to use laymen’s terms, it is damned if it does and damned if it does not.  It deregisters, possibly under invalid provisions, and goes to the next election, or it does not, and the provisions are valid. 

HIS HONOUR:   The answer made against you is, I think, that the statute is on the books, yes, you challenge it, but it is on the books and effect has to be given to it until it is struck down.  That is the nub of the point against you, I think. 

MR QUINN:   That is the nub of it, but, with respect, it begs the question, your Honour.  As I say, yes, we assume that the statute is valid, but we cannot assume that it will be valid when this Court makes its determination on the appeal, because, if that were the case, an injunction would never lie.  If one was permitted to assume that this Court would find the legislation valid on the appeal, then no injunction could ever be granted. 

The real legal position, in my submission, in accordance with what his Honour Acting Chief Justice Mason said in the case that I have provided to your Honour, is that, yes, we assume for the moment that the legislation is valid, we then go ahead to look at whether there is a serious question to be tried and the balance of convenience test, and the fact that we have valid legislation on the books raises the bar higher than it would be for an applicant in an injunction in ordinary circumstances. 

All we do is we accept that this is not a commercial case in which your Honour approaches the position of the parties without any assumptions in mind.  Your Honour approaches the issue assuming that the legislation which is impugned is valid, but not assuming that it will be determined to be valid when the appeal is determined. 

HIS HONOUR:   So does it come to this, that the assumption of validity or presumption of validity – whichever expression is preferable – is not determinative?  If it were, injunction could never preclude action under a statute until it had been held invalid. 

MR QUINN:   In my submission, that must be the case.  The real effect of the presumption is to, as I say, raise the bar for the applicant for an injunction. 

HIS HONOUR:   Well, one of the questions that would need to be considered, if we get to the point of framing any order, would be its duration.  You seek orders pending hearing and determination of the appeal.  We know when hearing is fixed.  Of course, we cannot say when the appeal will be determined.  The other features that, it seems to me, I need to bear in mind are, first, one cannot exclude the possibility of a double dissolution election, which can occur at any time. 

The next feature is that we are concerned with Senate elections, not House elections, and the first half Senate election could not happen until second half next year, that is, a little over seven months away.  Is there anything to be said for framing an injunction to a particular date or further order to ensure that it is brought back and reconsidered?  Or do you say that that is not a useful thing to consider? 

MR QUINN:   In my submission, it is not a useful thing to consider as a practical solution, because the question of determining the date has its own difficulties. 

HIS HONOUR:   What I have in mind is 31 May. 

MR QUINN:   Of 31 May. 

HIS HONOUR:   Take it to, in effect, about a month out from the point when you might be looking at half Senates being called, and then the argument would have been had.  We may, we may not, have some better idea of what is to happen.  Now, I am not wedded to this idea – far from it ‑ but it occurred to me that where dates are obviously of such significance in a matter of this kind, then perhaps, perhaps not, I should be giving consideration to framing orders by reference to date rather than event. 

MR QUINN:   If your Honour was considering 31 May, I had in mind – I thought that your Honour might have been contemplating some shorter timeframe, but if that was the case we could certainly live with that, on the basis, of course, that there would be liberty to apply. 

HIS HONOUR:   If I make no order, if I make an order, the parties can always come back and either seek further order or seek discharge of the order.  That is always the case. 

MR QUINN:   From our perspective, 31 May is as ample a timeframe as any.  If there is going to be a date, we would, of course, prefer until determination, but having said that it is the respondent who is going to be in the best possible position to inform the Court at the earliest possible time ‑ ‑ ‑

HIS HONOUR:   No, the Commission will not know.  The Commission will be told by its political masters. 

MR QUINN:   Yes.  Your Honour, I cannot say much more than that it seems to be a date which would be reasonable in the circumstances.  It certainly is a date which is after the hearing of the appeal, and some period after it, and that might be of some assistance too.  So we would be amenable to that suggestion. 

HIS HONOUR:   Well, look, Mr Quinn, I think it may be of advantage if I hear what Mr Hanks has to say about whether any order should go and also on how orders might be framed or not framed, but let us perhaps come back to the logically prior question of, should any order go, Mr Hanks? 

MR HANKS:   Your Honour will have observed that our written submissions are not framed so as to oppose actively the application for the injunction.  Our position ‑ ‑ ‑

HIS HONOUR:   Forgive me if I say – and you should not answer this question, Mr Hanks – I was left wondering what is going on in this case?  But there we are. 

MR HANKS:   I will tell you what is going on, your Honour.  I will tell you. 

HIS HONOUR:   These are questions that are idle questions that judges sometimes wonder and which judges are not permitted to know the answers to. 

MR HANKS:   Well, your Honour made a reference to political masters and there are layers, your Honour.  The Commission is not prepared to exercise a dispensing power, effectively. 

HIS HONOUR:   I understand that. 

MR HANKS:   Because if it did so, it would be subject to severe criticism ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that. 

MR HANKS:   ‑ ‑ ‑ by other participants in the political process. That is why we have declined to extend the undertaking, given what we think is the likelihood that an election may be called within the next nine months. So that, as it approaches, the need, as we see it, to have the information which has been withheld by the appellant in relation to the identity of its members ‑ members on which it relies, that is – the need for that information becomes more crucial. The review of the register with which we are concerned is not confined to considering whether the Democratic Labor Party remains an eligible party as defined in the Act, but whether each of the other parties currently registered can properly retain that eligibility.

HIS HONOUR:   But can the review of the register, in respect of the eligibility of other parties, proceed to its conclusion without any final determination of the eligibility of this party? 

MR HANKS:   Only by, I think, what has been described to me as some degree of risk assessment, your Honour.  That is, one cannot definitively determine that each of the other parties remains an eligible political party without knowing the identity of the 500 members on which the Democratic Labor Party relies for its registration, because of ‑ ‑ ‑

HIS HONOUR:   Because of the requirements about overlap. 

MR HANKS:   Because of 126(2A), that is right.  One can reduce the risk that there would be such an overlap by asking those parties to put forward some number in excess of 500, so that that would minimise the risk that there is an overlap, but one can never eliminate it.  That, I think, has always been a principal concern, so far as the Commission is concerned. 

The administration of the no overlap rule does require each party that is registered to provide to the Commission the identity of the 500 members on which it relies.  That is our concern and it is that review of the register that the Commission believes that it is proper for it to conduct in the period leading up to the next election.  If I might say so, your Honour, that means that this problem goes beyond Senate elections, because there are registered political parties that have a preferred position, one might say, in the House of Representatives elections too. 

So I might come back to our first point.  I have explained to your Honour in brief terms why the Commission is not prepared to extend its undertaking.  I think I have outlined in short terms what our dilemma is.  Our dilemma is our inability properly to review the register of political parties in the absence of this information ‑ ‑ ‑

HIS HONOUR:   Is there any material that would tell me how long a process that is, whether we are talking days, weeks, months, to conduct the review?  I am not conscious of seeing any such material. 

MR HANKS:   I think that is fair, your Honour.  I think that is fair.  I do not think we have put any material before the Court to assist your Honour with that. 

HIS HONOUR:   My reaction is that it may be a task that would occupy some days, but that it is not a task that would occupy many weeks or even months.  But that is an utterly untutored matter of impression which you may tell me rightly I should discard. 

MR HANKS:   I will not do that, your Honour, because the best that I can do is to say that I think it would entirely depend on whether the review of the register indicated that there was an overlap problem and what the extent of that overlap problem was – how many parties were affected and how many ‑ ‑ ‑

HIS HONOUR:   And how many people. 

MR HANKS:   ‑ ‑ ‑ and how many additional members they needed to nominate as the members on which they relied, in order to avoid the problem.  If we were talking of a dozen only – a dozen individual names that needed to be put forward – then one would assume that that could be remedied quickly by the other political parties.  There is a statutory answer in section 126(2A).  Your Honour will see that in paragraph (a) – as I understand it, this is a provision that operates where it is found that there is an overlap, then the parties affected have 30 days to sort that out, effectively. 

HIS HONOUR:   Yes.  The consequence of there being no choice of which party is to be the beneficiary of the participation of that member is, it seems, that neither can rely upon that member. 

MR HANKS:   That is right, your Honour.  So 30 days may be inadequate in that context.  If an order were to be made by the Court enjoining us from proceeding with the next stage under 137, which is the consideration of the statement lodged by Mr Mulholland, and then a decision as to whether the party should be deregistered – and that is the point we have got to – no doubt your Honour could make – and we would not resist this – an order in the terms that your Honour was floating with our friend, Mr Quinn, with a finite date ‑ ‑ ‑

HIS HONOUR:   Sorry, would or would not resist that? 

MR HANKS:   Would not resist that, because it would be open to us, on examining, as it were, the possible permutations, combinations, and getting better instructions, to apply to the Court to vary that order.  That would be, I think, a proper course, with respect.  We would not resist an order in – I am sorry.  If your Honour were to make an order – and we are certainly not consenting to such an order ‑ ‑ ‑

HIS HONOUR:   No.  I understand that. 

MR HANKS:   ‑ ‑ ‑ we would not resist a date such as your Honour had proposed. 

HIS HONOUR:   Can I just then see if I capture the position we get to, Mr Hanks. One, the Commission considers that it cannot and should not dispense compliance with a statute not yet shown to be invalid. Two, the Commission does not consent to any injunction. Three, the position of the Commission is that it points to the difficulties which it confronts in conducting the review of eligibility required to be made by section 138A, those being difficulties which are not confined to the particular circumstances of the DLP, but which are difficulties concerning the review generally, because of the operation of the no overlap rule. Does that fairly capture the position we have arrived at?

MR HANKS:   Yes, your Honour, it does. 

HIS HONOUR:   31 May was simply a date of my invention for its round feel and connection with 1 July.  It happens to fall on a Monday next year.  If I were to be thinking in terms of finite dates, is there a better or more appropriate date to consider? 

MR HANKS:   Can I just reflect, the appeal is listed for ‑ ‑ ‑

HIS HONOUR:   The first or second week February. 

MR HANKS:   Second week in February, I believe. 

HIS HONOUR:   11 February. 

MR HANKS:   Yes.  I think we would have a preference for an earlier date than 31 May, but ‑ ‑ ‑

HIS HONOUR:   Your preference no doubt is to have all this wrapped up today.  That is no doubt the preferred position of the Commission.  That I understand. 

MR HANKS:   Yes.  My instructor is making a suggestion to me, but I think I will put to your Honour that, again, we would not resist, for today’s purposes, 31 May strenuously, on the assumption that once we have done our calculations and obtained precise instructions we can come back, your Honour, if we think that that is inconvenient or inappropriate. 

HIS HONOUR:   Well, there is this difficulty.  Plainly, either party has an opportunity to apply to discharge any order at any time.  Ordinarily, I would have thought, one would say that that should be jurisdiction exercised if there are new factors brought to mind.  I suspect I might hear echoes of an argument against you, if you were to seek to discharge 31 May very soon, “Well, why did you not tell the judge that when it was first on?”  Cynicism is perhaps an unfortunate trait, but it is inbred, I am afraid, Mr Hanks. 

MR HANKS:   That did not struck me as a cynical observation, your Honour. A practical one. I am thinking that it would be open to the Commission, if it had material that could demonstrate that a review of the register would take a particular time and that it was necessary for the proper administration of the Act to conclude that review before the earliest practical or reasonably predictable date for an election, that the Commission could then seek discharge of the injunction, supported by that evidence. But we may face, as your Honour said, the particular difficulty that we have not brought forward that material today and, therefore, I think I had best resile from my non‑resistance position and say that an earlier date should be selected, so that there will be an opportunity ‑ ‑ ‑

HIS HONOUR:   Can I cut across it in this way.  You want to have an opportunity to secure some instructions during the morning and see what we are to do.  Pure self‑interest intrudes, Mr Hanks.  I do not want to be coming back and re‑doing this thing if we can do it once, today.  Let us get it to an end now.  And there is a further consideration.  If I fix a finite date, rather than hearing and determination, it is evident that the fixing of that date will bear upon the other members of the Court in the preparation of reasons.  There is evident sense in my not choosing a date that is too close to 11 February.  The work of the Court is constant and this litigation is the only litigation important to these parties, but there is the odd other pressure that falls upon us constantly and therefore that was another unstated reason for picking 31 May. 

MR HANKS:   Yes, I appreciate that, your Honour.  I think it would assist us if we could speak to our client in relation to the question that your Honour has raised. 

HIS HONOUR:   Yes.  How long would you want? 

MR HANKS:   Assuming that we are able to contact our client, we might need an hour, I think, simply because ‑ ‑ ‑

HIS HONOUR:   What is going to be more convenient for counsel?  If I say a time this morning, say, midday, or 2.15? 

MR HANKS:   2.15, I think, would be more convenient. 

HIS HONOUR:   Is that going to be convenient to you though, Mr Quinn? 

MR QUINN:   If your Honour is prepared to give us that indulgence. 

HIS HONOUR:   Let us just fix it.  I will say at 2.15, rather than not before 2.15, so we will resume sitting at that time. 

AT 10.01 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM: 

HIS HONOUR:   Yes, Mr Hanks. 

MR HANKS:   Just drafting on the run, your Honour. 

HIS HONOUR:   Always very dangerous, Mr Hanks. 

MR HANKS:   I have just made a few changes to Mr Quinn’s draft of the order.  I will hand it up to your Honour and explain what the changes reflect.  The critical change, your Honour, would be, so far as our discussion earlier today was concerned, that which appears in the opening part of order 1.  The time and date that we would suggest would be appropriate would be 2.00 pm on 17 May 2004.  That is a Monday. 

HIS HONOUR:   Is it simply captious to ask, if I had suggested 14 June, whether then it would have been brought back to 31 May, Mr Hanks, or is that ‑ ‑ ‑

MR HANKS:   Captious, your Honour? 

HIS HONOUR:   ‑ ‑ ‑ really displaying a degree of cynicism on my part? 

MR HANKS:   Frivolity, your Honour. 

HIS HONOUR:   Quite misplaced in this place. 

MR HANKS:   There is definitely an explanation. If we proceed on the basis which we have worked on – and I think it is reasonable – that although we cannot predict when the next general election will be held, the more likely type of election is that which combines an election for the House with a half Senate election. Experience would suggest that. The earliest day on which a half Senate election can be held is 3 July, which is a Saturday. Polling can only take place of a Saturday, it cannot take place earlier than 1 July. Writs are issued under the Act ‑ ‑ ‑

HIS HONOUR:   Mr Hanks, we are losing you if you move away from the microphone. 

MR HANKS:   I am sorry. Yes, writs are issued under the Act a minimum of 33 days before the polling. Recent experience has shown that the longest expected period would be 40 days. It could be as many as 58, your Honour, but 40 days appears to be the longest in common practice. That would take the issue of the writs back to 24 May 2004.

HIS HONOUR:   Sorry, to what date? 

MR HANKS:   24 May 2004.  That is 40 days before the polling day of 3 July, the earliest possible polling date for a half Senate election.  My client instructs that it would only require seven days in order to fix the register, and I will explain why that is so. 

As matters presently stand, the registered officer of the Democratic Labor Party has not provided the names and addresses of its members, and that will still be the case, we assume, on the day when the Commission comes to review the register.  The Commission will have before it nil return, as is presently the case, from the Democratic Labor Party, and, therefore, the issue of determining whether there has been an overlap between that party and the other parties will be quickly resolved, and the Commission will only have to look at the situation of the other parties – that is, the parties other than the Democratic Labor Party. 

That is on the assumption that the statement which has been lodged by the registered officer, Mr Mulholland, with the Commissioner in December 2001 is a statement that does not disclose the names and addresses of the members of the party.  So it will not be a complicated process. 

Proceeding on that basis – and I think that is the proper assumption on which to proceed – if the Commission does come to discharge its obligations under 137(5), it will do so in that context and in that setting.  The Commission, therefore, is confident that it can review the register within that timeframe.  That is why we have asked that if your Honour is minded to enjoin the Commission from carrying out those functions that the injunction apply only until 2.00 pm on 17 May. 

HIS HONOUR:   Can I add this further consideration for your submission, Mr Hanks.  The Court’s sittings in April and May are presently fixed for the weeks commencing 19 and 26 April and, again, for the weeks commencing 17 and 24 May.  Ordinarily, if a judgment is to be delivered, it is ordinarily delivered during the course of the sittings.  It sounds like cheeseparing, but what I am minded to do is to push it forward to the end of the first week of May sittings, 21 May.  I understand what you have said about minimum times; we might just have to live a bit dangerously and assume that things are not done at minimum time. 

MR HANKS:   What date was your Honour ‑ ‑ ‑

HIS HONOUR:   That would be Friday, 21 May. 

MR HANKS:   Friday, 21 May.  Then could we cheesepare a little bit back and move it to earlier in the day, your Honour? 

HIS HONOUR:   Yes. 

MR HANKS:   So that if our friends do not, as it were, apply for a new injunction, we may move properly during that day. 

HIS HONOUR:   Yes. 

MR HANKS:   10.30 am, perhaps, your Honour? 

HIS HONOUR:   Well, 12 noon. 

MR HANKS:   12 noon, yes, your Honour. 

HIS HONOUR:   Yes.  Now, after that no doubt unseemly piece of bargaining, I should perhaps hear Mr Quinn.  Mr Quinn, do you want to be heard in this little auction that I seem to have been conducting with Mr Hanks? 

MR QUINN:   Your Honour, if I had anything logical to add to the mix, I would, but I have nothing else to say.  We are content with 12.00 pm on 21 May 2004.  It seems to be an approach which is supported by as much reasoning as any other time and date. 

HIS HONOUR:   Yes.  Have you seen the other amendments that Mr Hanks proposes to your draft? 

MR QUINN:   We were discussing them together.  As I have it, it reads “Until 12 noon” ‑ ‑ ‑

HIS HONOUR:   “Until 12 noon 24 May”. 

MR QUINN:   21 May, sorry, your Honour. 

MR HANKS:   Friday, 21. 

HIS HONOUR:   Friday 21, sorry, yes. 

MR QUINN:   The rest of those introductory words of paragraph 1 stay the same, then (a): 

considering, pursuant to s 137(5) of the Commonwealth Electoral Act 1918 (“the Act”), the statement pursuant to s 137(2) of the Act, signed by the Appellant –

et cetera.  The rest of that paragraph (a) stays the same.  Paragraph (b) then reads: 

determining, pursuant to s 137(5) of the Act –

and the rest of the paragraph stays the same.  Paragraph (c) disappears entirely and, otherwise, 2 and 3 stay the same. 

HIS HONOUR:   Yes.  Do you have anything then to say about that form of order? 

MR QUINN:   I am content with that. 

HIS HONOUR:   Yes, very well.

The appellant is the registered officer of the Democratic Labor Party of Australia (“the DLP”), a political party registered under section 133 of the Commonwealth Electoral Act 1918 (“the Act”). The DLP was first registered on 20 July 1984 and has been registered since that time. The respondent, the Australian Electoral Commission, has, pursuant to section 138A of the Act, commenced the process of review of the register of political parties established under Part XI of the Act to determine whether one or more of the parties included in the register, among other things, should be deregistered under either section 136 or 137.

Section 137 of the Act provides that:

(1)  If the Commission is satisfied on reasonable grounds that:

. . . 

(b)  a political party so registered [under Part XI], not being a Parliamentary party, has ceased to have at least 500 members;

. . . 

the Commission shall:

(d)  give the registered officer of the party notice, in writing, that it is considering deregistering the party under this section setting out its reasons for considering doing so . . . and

(e)  publish a notice in the Gazette that it is considering deregistering the party –

These steps the Commission has taken in relation to the DLP.

It took those steps in the course of the latter half of 2001.  In January 2002 the appellant commenced a proceeding in the Federal Court by way of application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B of the Judiciary Act 1903 (Cth) in which, among other things, he challenged the constitutional validity of those provisions of the Act pursuant to which the respondent had taken steps towards the deregistration of the DLP. In addition, the appellant put forward a number of administrative law grounds for review of the decision that had been taken.

On 11 October 2002 Justice Marshall of the Federal Court dismissed that application.  The appellant appealed to the Full Court of the Federal Court and on 13 May 2003 that court dismissed his appeal.  The appellant sought special leave to appeal from that decision of the Full Court of the Federal Court and, on 3 October 2003, this Court granted special leave to appeal, following which the appellant instituted the present proceedings in the Court.

After the appellant had begun his proceedings in the Federal Court he sought and obtained undertakings from the respondent, in effect, that the respondent would not continue further with the processes of review of eligibility of the DLP to remain on the register pending the hearing and determination of the several steps in the proceedings that I have described. Those undertakings were given and were renewed from time to time, although it is, I think, fair to add that at each stage the respondent was at pains to point out that not only was it necessary that the appellant proceed with his pending proceedings with due speed, but also that the undertakings were given without prejudice to the Commission giving effect to the obligations which it had under the Act.

The most recent of those undertakings having expired, the appellant sought from the Commission a renewal of an undertaking that it would not continue the review of eligibility of the party.  This the Commission refused to give and the appellant, therefore, has now applied for interlocutory orders enjoining the Commission from taking further steps that would lead to the possible deregistration of the DLP.

The appellant seeks, in the first instance, orders restraining the Commission from taking those steps pending the hearing and determination of the appeal which has been instituted pursuant to the special leave granted. Counsel for the Commission pointed to a number of provisions of the Act to demonstrate that the review of eligibility of parties to remain on the register was a process which, in part, required consideration not only of the position of the DLP, but also of other parties that were registered. In particular, reference was made to the requirement of the Act in section 126(2A) that:

Two or more parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible political party.

Thus, he submitted, the review of eligibility which the Commission had undertaken was a process that necessarily could not be confined to the eligibility of the DLP. 

Further, he submitted that although it is clear on the material that the appellant and others who may seek to obtain election to the Federal Parliament representing the DLP would seek election only in the Senate, because the rules about overlapping membership to which I have referred would affect other parties which may wish to field candidates for elections for the House of Representatives, attention could not be confined to elections for the Senate.

The date at which an election may be called is, of course, a matter for government. If the conditions in section 57 of the Constitution are met, a double dissolution of both Houses may be called and, if those conditions could be regarded as now being satisfied, it would be open to government to call a double dissolution election at any time. Absent proceeding under that provision of the Constitution, however, the first date at which an election for half of the Senate might be held in the ordinary course of events would be on Saturday, 3 July 2004. If past political practice might be noted, it would seem more probable than not that if an election for the House of Representatives were to be called, it would be called at the same time as an election for half of the Senate.

Once writs for either a Senate election or a House of Representative election have been issued, section 138A(2) of the Act precludes the respondent from reviewing the register of political parties established under Part XI of the Act. It was common ground between the parties that it followed that if writs for either a Senate election or a House of Representatives election were issued, the process which has been begun by the Commission could not be continued until after the return of the writs.

The appeal presently stands fixed for hearing on 11 February 2004.  The process of review of eligibility is a process which, as things stand at the moment, I am informed might be completed within a relatively short period of its continuation from the point it has now reached.  Of course, were circumstances to change, that estimate of time may well be affected. 

It seems to me that in those circumstances it is undesirable to grant an injunction to restrain the Commission from effecting its statutory obligations which is limited to the period pending hearing and determination of the appeal or further order. Of course, account must be taken of the fact that the appellant challenges the validity of those provisions of the Act to which the Commission would seek to give effect, but, equally, account must be taken of the fact that those provisions have not been declared invalid: see, for example, Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Australian Capital Television Pty Ltd v The Commonwealth (1991) 66 ALJR 214. Nonetheless, it is also important to bear in mind that if injunction does not go, the appellant’s right of appeal which he now has pursuant to the special leave granted may in real senses be rendered nugatory: see, for example, Wilson v Church (No 2) (1879) 12 Ch D 454.

The question then becomes whether injunction should go at all and, if so, to what period.  In my opinion it is plain that in this case an injunction should go for at least some period.  Though ordinarily reluctant to direct an injunction of this kind to a fixed date, in the unusual circumstances of this case I think it better that the period for which the respondent Commission is enjoined should be fixed as until 12 noon on 21 May 2004 or until the determination of the appeal, whichever is the earlier, or until further order.

If, before that time, either party seeks to vary or discharge the order, no doubt application can be made and that application would have to be determined according to the merits of the material then revealed.  If, at the end of that period, the appeal remains undetermined, it will be for the appellant to renew its application to extend the injunction and the question of extension can then be considered having regard to the then available material.

In these circumstances, I consider that injunctions should go but the form in which those orders should be made has been the subject of some discussion and debate between counsel.  I understand there to be no dispute that if I am of the opinion that injunction should go, then it would be appropriate that orders be made in the form supplied.

Mr Hanks, do you contend there should be any other condition of the grant of injunction?

MR HANKS:   No, your Honour.

HIS HONOUR:   Yes.  Then the order will be:

1.        Until 12 noon on 21 May 2004 or until determination of the appeal, whichever is the earlier, or until further order the respondent is restrained from:

(a) considering pursuant to section 137(5) of the Commonwealth Electoral Act 1918 (“the Act”) the statement pursuant to section 137(2) of the Act signed by the appellant and lodged with the respondent by letter dated 13 December 2001;

(b) determining pursuant to section 137(5) of the Act whether the Democratic Labor Party should be deregistered for the reasons set out in the notice given by the respondent to the appellant on 13 November 2001 purportedly pursuant to section 137(1)(d) of the Act;

2.        The costs of the application will be costs in the appeal;

3.        There will be liberty to apply to either side on two days notice in writing; and

4.        Certify for the attendance of counsel.

AT 2.44 PM THE MATTER WAS CONCLUDED