Murphy v Electoral Commissioner & Anor

[2016] HCATrans 72

[2016] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M247 of 2015

B e t w e e n -

ANTHONY JOHN MURPHY

Plaintiff

and

ELECTORAL COMMISSIONER

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 MARCH 2016, AT 9.28 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MR C.J. TRAN, for the plaintiff.  (instructed by Mallesons Stephen Jaques)

MR L.T. BROWN:   If your Honour pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

MR N.J. OWENS:   If the Court pleases, I appear with my learned friend, MS K.E. FOLEY, for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Merkel, thank you very much for the draft special case and for getting it to me when it was got.  I have had the opportunity to go through it.  Just one thing I wanted to ask you about.  Are you completely confident that the plaintiff has the standing that he needs, because it would be unfortunate indeed if the matter went off on that basis?

MR MERKEL:   Yes.  Your Honour, the words “completely confident” would be a very brave thing to say.  Your Honour, we have put a proposal to the Commonwealth which could raise the possibility of an additional plaintiff – a possibility, I do not put it higher than that because we would propose a vehicle for that to occur which would not upset the special case and would just involve adding a party.

HIS HONOUR:   Excellent.

MR MERKEL:   I should indicate to your Honour, we have a degree of confidence, which may be misplaced, but amongst other things, your Honour, a voter has standing in the Court of Disputed Returns, for example, to challenge an election on grounds of invalidity which would include a lack of power.  We also have the main relief as a writ of prohibition which can be sought by a stranger, which the Court could refuse to deal with as a matter of discretion, but we would apprehend that it is very difficult to find a person with better standing because a candidate cannot be nominated until after the writs have issued.  Political parties are problematic and the one thing that we do know is an elector is obliged to vote, and will vote.

HIS HONOUR:   Mr Murphy is enrolled, is he not?

MR MERKEL:   He is enrolled and has voted and will vote and is required to vote in the House of Representatives and the Senate election.  So when one asks before an election is called who could have standing an elector is one of the most obvious choices because the elector not only has a statutory function but has been referred to in this Court as having a constitutional function in voting.  So we are very cognisant of the fact that it has been

raised in the defence and we are cognisant of the risk that we may be wrong, but we have put a proposal and that may put the matter to one side, but it is a matter for the Commonwealth as to whether that will be taken up or not.

HIS HONOUR:   I suppose a voter who was entitled to be enrolled but is not yet might have a greater interest in the matter than one who has already enrolled.

MR MERKEL:   That is right, but that person would come before the Court saying, “I am deliberately not enrolling until after the Act says I should be enrolled”, and there is something less than fully attractive about that but we can explore that as an additional possibility, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   I do not think anyone wants this case to go off on a point of standing but the Commonwealth no doubt has an issue of principle and they are entitled to raise it, but we will take on board both possibilities, your Honour.

HIS HONOUR:   Yes, very well.  Thank you.

MR MERKEL:   I think that covers the matters.  I have just been told a moment ago, your Honour – I should draw to your Honour’s attention that I had assumed that the Australian Government Solicitor had signed the special case for both defendants but I understand there is some reluctance on the part of the Electoral Commissioner to sign the special case, not because of its content but because of its reluctance to be a party, and I was only told that a moment ago and I should draw it to your Honour’s attention.  We may have to address that because the special case is required to be signed by the parties and until one moment before Court I was not aware of that fact.

HIS HONOUR:   Yes.  Well, perhaps we will find out.  Mr Brown, what is the position?

MR BROWN:   There is some reluctance, your Honour, and it is simply for the fact that the Australian Electoral Commissioner – I beg your pardon, your Honour – the Electoral Commissioner has striven to be as neutral as possible throughout this process, as is consistent with its obligation as an electoral - …..management body.  To the extent that there was any dispute as between facts and as between impugned laws, that has always been a matter as between the Commonwealth and the plaintiff, and the Electoral Commissioner has always sought to stay at arm’s length from that – provide assistance to the other parties where it could on matters of fact.

It follows from that that whilst it has a keen interest in the proceeding and wishes to be available to the Court to assist it, especially in light of questions that might arise in regard to the plaintiff’s alternative propositions and any proportionality of the analysis that follows, it does not want to be seen to be joining the fray, as it were.  So it is in quite an invidious position.  It does not want to make a submitting appearance but also does not want to join the fray if it can be avoided, and it was for that reason it is reluctant ‑ or he is reluctant, I should say, your Honour, to sign the special case.

HIS HONOUR:   When you say the Commissioner is reluctant to join the fray, you mean what?  Reluctant to state the facts are as they are set out in the special case or something more than that?

MR BROWN:   No, it is simply reluctant to be seen to be part of the dispute, as it were, the special case being a matter negotiated as between the Commonwealth and the plaintiff and so seeking to stay away from that.  I cannot put it any further than that, your Honour; just wishing to be seen to be away from the fray because of his particular role as being the facilitator of the election.

HIS HONOUR:   Yes, all right.  Thank you.

MR BROWN:   As your Honour pleases.

HIS HONOUR:   Mr Merkel, in view of that, what do you propose be done?

MR MERKEL:   Your Honour, in the circumstances, if your Honour could dispense with the requirement that the Electoral Commission have to sign the special case, given that they are not objecting to it going forward on the agreed basis, that would solve the problem because it is only under the Rules that the parties have to sign and the Court has the power to dispense with compliance with the Rules.  Can I make it clear for the record that we do not regard and would not contend that by being party to the special case the Electoral Commissioner is joining the fray in any sense.

HIS HONOUR:   No.

MR MERKEL:   There is provision in the proposed minutes of order that the Electoral Commission file, or be entitled to file and serve submissions of not more than 10 pages, but we would expect that would be purely in respect of any matters that may be raised that would fall within the category my learned friend referred to, namely, to assist the Court.

HIS HONOUR:   Yes.

MR OWENS:   Your Honour, could I just indicate the Commonwealth’s position in relation to this?

HIS HONOUR:   Yes, thank you.

MR OWENS:   This is also a matter that has only just been brought to our attention, but from the Commonwealth’s point of view it would in fact be consistent with the neutral stance that the Electoral Commissioner has adopted and wishes to adopt in the proceedings for it to subscribe to the special case and therefore provide that level of assurance to the Court that the facts that are otherwise agreed between the parties are in fact also supported by ‑ ‑ ‑

HIS HONOUR:   Well, I should have thought so, but if they do not wish to I can hardly order them to do so, can I?

MR OWENS:   No, but I just wish to make the Commonwealth’s position clear in that regard, that we do not see any inconsistency between the neutral stance of the Commissioner and subscribing to the facts which all sides are agreed should form the basis upon which the issue should be determined.

HIS HONOUR:   Yes.

MR MERKEL:   Can I just indicate, your Honour, we are in line with the Commonwealth on that and we make it clear that by signing the special case the Electoral Commissioner would not be abandoning any neutrality, and one possible way out, your Honour, is if the order provided for 24 hours for the Electoral Commissioner to sign the special case and if he does not then the Court dispense with the rule that would require that compliance so that the Electoral Commissioner could take on board what the Commonwealth’s position is and what the plaintiff’s position is and that would seem to alleviate any concerns the Electoral Commissioner might otherwise have.

HIS HONOUR:   Yes, thank you.

MR BROWN:   Your Honour, might I just say one thing?

HIS HONOUR:   Yes, Mr Brown.

MR BROWN:   It is not just what the parties here perceive the position to be.  The Electoral Commissioner is outward facing to the community and it is that concern as much as what happens in this proceeding that motivates his position, your Honour.

HIS HONOUR:   Mr Brown, does the Electoral Commission join in seeking to have the questions raised in the special case stated as a special case or do you wish not to do that either?

MR BROWN:   We certainly do not object, your Honour, and certainly it is a proper mechanism to have this issue resolved and we participate in that process and have no position on the outcome of the process.  The Electoral Commissioner’s role, as he sees it, is to assist the Court understand how those questions ought to be answered in light of the special case.  It certainly does not object to the special case, as it were, and has assisted, as I mentioned to your Honour, with the drafting of the special case by the provision of matters of fact.

HIS HONOUR:   Yes, thank you.

I shall make the following directions subject to anything further counsel may wish to say:

1.The questions stated by the plaintiff and the second defendant in the form of the draft special case which has been submitted and signed on behalf of the plaintiff and the second defendant will be referred for consideration by a Full Court on 11, and if necessary, 12 May 2016. If, and insofar as it may be necessary, I dispense with the requirement that the first defendant sign the special case pursuant to rule 27.08.6 of the High Court Rules 2004 (Cth).

2.Subject to any further or other direction, Part 44 of the High Court Rules 2004 relating to written and oral submissions, including the annotated form of submissions, shall apply with any necessary variations or adaptations to the proceeding.

3.On or before 4.00 pm on Monday, 4 April 2016, the plaintiff shall file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book.

MR MERKEL:   Can I raise one or two matters concerning the directions with your Honour?

HIS HONOUR:   Yes.

MR MERKEL:   There have been discussions between the parties to try and get an agreed position that would enable the parties sufficient time to file submissions which would have the timetable go out a little further than your Honour has indicated, on the basis that more time would be needed.  Can I just say that on the timetable we would be proposing the reply submissions would be filed on 4 May, which would be a week before the hearing.  The dates we were going to ask for your Honour were that the special case books be filed – can I hand up a proposed order, your Honour.  There is only one matter that was outstanding from the parties, which we have been discussing.

HIS HONOUR:   Yes.

MR MERKEL:   Considering the complexity and practicalities, your Honour, we thought that if we could follow this timetable, which is 7 April for the special case books, 13 April for the plaintiffs and any intervener supporting the plaintiff to file their submissions, 28 April for the Commonwealth and the Electoral Commissioner, and 4 May for the plaintiff, we would say for pragmatic reasons that those times are able to be kept and adhered to and will enable more time for the preparation of submissions, your Honour.  We say that is a realistic timetable that will ensure the Court has all the submissions a week before the hearing date.

HIS HONOUR:   Yes.  It is during the first week of the sittings.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Being selfish about it, one would like to get it before the first week of the sittings.  I wonder if you could bring it back a little, just for the reason that there is not much time to look at these things while other things are going on.

MR MERKEL:   Your Honour, I think we are looking for 13 April as the date that we file our submissions.  I would ask for those dates and if not – if the Court cannot accede to those dates then bring them two days earlier, which would be the 11th – the typed‑in dates there, your Honour.

HIS HONOUR:   I suppose we will have your submissions and those of the Commonwealth by then, and also the Commissioner.

MR MERKEL:   Yes, and we would have to 4 May for the reply submissions. 

HIS HONOUR:   Yes, very well.  Thank you, Mr Merkel.

MR OWENS:   Your Honour, could I just indicate that the plaintiff’s position in relation to the dates that Mr Merkel has just handed up in that document – the only issue for us is we would prefer to keep the original typewritten dates, namely 11 April in particular for the plaintiffs.

HIS HONOUR:   Right.

MR OWENS:   I can explain why if need be, but we would prefer those extra two days.

HIS HONOUR:   Is there any particular reason?

MR OWENS:   Because the Solicitor‑General will be travelling overseas from 14 April ‑ ‑ ‑

HIS HONOUR:   That is a good enough reason, is it not?

MR MERKEL:   We do not object to that, your Honour.  So, if the timetable could be as typed out, your Honour, that is the 11, 26, 26 and 4 May.

HIS HONOUR:   Thank you.  Mr Brown, I take it you have no objection to the typewritten draft?

MR BROWN:   No, your Honour.

HIS HONOUR:   Thank you.  I withdraw the directions which are thus far given for the filing of the plaintiff’s submissions and make in lieu of them the following:

3.On or before 7 April 2016, the plaintiff shall file and serve special case books prepared in accordance with an index settled by the Registrar.

4.On or before 11 April 2016, the plaintiff and any intervener in support of the plaintiff shall file and serve their annotated written submissions of not more than 20 pages and a chronology together with a list of authorities.

5.On or before 26 April 2016, the Commonwealth and any other intervener shall file and serve their annotated written submissions of not more than 20 pages and a chronology together with a list of authorities.

6.On or before 26 April 2016, the Electoral Commissioner shall file and serve any annotated written submissions of not more than 10 pages.

7.On or before 4 May 2016, the plaintiff shall file and serve annotated written submissions in reply of not more than 7 and a half pages.

8.Costs be in the cause.

9.Reserve liberty to apply.

Is there anything further that is required, Mr Merkel or Mr Owens?

MR MERKEL:   No, your Honour, thank you.

MR OWENS:   No, your Honour.

HIS HONOUR:   I will vary the directions I have made to require that all submissions be annotated at the time of filing.  I suppose it might be appropriate to congratulate the parties, but I daresay it is a little bit early in the proceeding for that.

MR MERKEL:   Your Honour, could your Honour reserve liberty to apply in case a question arises?

HIS HONOUR:   I have done so.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   Adjourn now, sine die.

AT 9.48 AM THE MATTER WAS ADJOURNED