Murphy v Electoral Commissioner & Anor

[2016] HCATrans 68

[2016] HCATrans 068

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 FRIDAY, 18 MARCH 2016, AT 3.28 PM

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 J.T. GLEESON, SC, Solicitor‑General of the Commonwealth:   May it please the Court, I appear with MS K.E. FOLEY for the second defendant.  (instructed by Australian Government Solicitor)

MR L.T. BROWN:   May it please the Court, I appear for the Australian Electoral Commissioner.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Brown.  We are not doing too well, Mr Merkel, I see.

MR MERKEL:   Your Honour, yes and no.  The yes is that the time available has not been sufficient for the parties to compile and agree on the special case but that is not because of any failure of the parties.  What has happened, your Honour, is a fairly large amount of relevant but not contentious material has become available from the Australian Electoral Commission and the other electoral commissions in the course of the week and we are fairly confident that given a short period of extra time – and I will hand up to your Honour the proposed orders that I think we are agreed upon bar one or two minor matters – we are expecting agreement and filing of the special case by next Thursday.

HIS HONOUR:   Have we yet agreed upon the request for particulars and the provision of it and the amendment that was ‑ ‑ ‑

MR MERKEL:   Yes, your Honour, we have been talking about that problem.  We are agreed that it is clearly preferable for the Court to have our statement of claim particularised, as set out in the correspondence, giving the clarity that our learned friends say has been lacking but we say, together with particulars, can be clarified and our learned friends will have an opportunity to deliver a defence.

HIS HONOUR:   Is it too churlish to inquire whether it is anything more than that there should be an entitlement to enrol up to and including the day of the election?

MR MERKEL:   It is a little more complicated but, your Honour, basically what we say is that the Act’s operation, without the suspension provisions, would entitle a person to apply to enrol, and if the application has been lodged in accordance with the Act and the provisions for enrolment that are made available by the Electoral Commissioner, the Electoral Commissioner would be under an obligation to enrol without delay subject to the Commissioner’s ability to ask for further information, and if that has occurred a person would be entitled to vote. 

HIS HONOUR:   That does seem to necessitate an amendment to the statement of claim, does it not?

MR MERKEL:   We have had discussion about that and we do propose to clarify that, your Honour.

HIS HONOUR:   And are there any other provisions of the Act than those mentioned which are now alleged to be invalid?

MR MERKEL:   Your Honour will have picked up that there is a view by the Commonwealth that even without the suspension provisions section 155 would operate to effectively prevent any further enrolments.  We have three positions which we have put to our learned friends on that.  I should hand up to your Honour our most recent letter which clarifies the response, I think.  That is not part of the material before your Honour, a letter sent today, but the bottom line is, your Honour, that if the operation contended for by the Commonwealth – can I just hand up the letter, your Honour.

HIS HONOUR:   Thank you.

MR MERKEL:   This just concerns section 155 which probably answers your Honour’s question I would hope.

HIS HONOUR:   Yes, I see.

MR MERKEL:   Now, we are not aware, your Honour, of any provisions other than section 155 that would have an operation substantially the same as the suspension provisions, but we will in the statement of claim in the alternative forms of relief add 155 to the extent that it has substantially the same operation as the suspension provisions.

HIS HONOUR:   And the particulars that were sought as to alternatives other than, as it were, an entitlement to vote up to and including the day of the election are now to be limited, are they, to entitled to do so for the retrospective verification of the authenticity of the enrolment, is that the idea?

MR MERKEL:   Well, your Honour, the first alternative is the Act operating in accordance with its terms, not outside any of those terms, and in accordance with the Electoral Commission’s current practices for enrolment but without suspension.  That is an alternative in line with what I put to your Honour, namely that enrolments can continue to be applied for and would be processed by the Commissioner in accordance with the Commissioner’s statutory functions and duties. 

If processed, an updated roll could and would be produced at an appropriate time, and if the person is not on the roll but entitled to be enrolled, that person may make a declaration vote or if there is some absence of enrolment that appears at the polling booth but in fact the person has been enrolled, for example, electronically, the person would put in a declaration vote, and that would be dealt with under Schedule 3 and the rules in Schedule 3.  So that the Act contains – I am putting it in a very shorthand way – its own scheme which would enable enrolments to continue in the absence of the suspension provisions if they are invalid.

HIS HONOUR:   Is all of this going to be sufficiently clear factually from the draft case that you are proposing?

MR MERKEL:   Yes, your Honour.  The special case sets out in great detail all of the practices and all of the steps that are necessary and with each party’s views and the Electoral Commission’s views about how they have worked in practice.  So that the special case has become quite a complex document because there were amendments, I think in 2008, enabling electronic rolls and electronically controlled information, so much of what has occurred even since Rowe, your Honour, has quite a significant effect on the current day’s practice. 

HIS HONOUR:   Can we be confident that there will not be disputes about the facts?

MR MERKEL:   Your Honour ‑ ‑ ‑

HIS HONOUR:   It sounds very factually based.  What I imagine might be said on the other side is well, it is all very well saying that one can roll up to the day but checks have got to be made, documents have got to be entered, and so forth and so on.

MR MERKEL:   That is all covered, your Honour, where much of the – most of the information is in the public domain and there may be dispute about the consequences or significance of the material that you will have before you but the parties thus far have been co‑operative.  We will be putting our updated version based on all the material we have and no doubt the Commonwealth will be responding but we do not seem to be very far apart so far.  We cannot say with total confidence we will necessarily reach agreement but the consequences of not reaching agreement are matters that both parties are very cognisant of.

HIS HONOUR:   When you say “reach agreement” you mean you reach agreement on the facts?  It is not going to be a question of drawing inference, is it, from such facts as are agreed about facts which are disputed?

MR MERKEL:   Well, the agreed facts will be in the special case and it will be a matter for submission as to what consequences follow from those agreed facts, and the Court on the special case can draw inferences.

HIS HONOUR:   They would be legal consequences or will you be asking the Court to find facts based upon those which are admitted?

MR MERKEL:   Your Honour, I think both parties would be putting the facts that are agreed and inviting inferences in support of the case that they are ultimately putting, but to what extent that ultimately will be determinative of the case will depend on legal questions and what are the proper questions.

HIS HONOUR:   I may be darting at shadows but what I am foreseeing is the possibility of your side, as it were, asking the Court to make factual findings to the effect that as a matter of fact it is practicable for the Electoral Commission to enrol or process people who seek to enrol up to and including the day of the election.  Is that right or will that be covered by agreed facts?

MR MERKEL:   I think, your Honour, the facts in the special case will enable the Court to form a view on that if it is a constitutional fact.  We are cognisant that the line between putting the facts forward on the current scenario with a hypothesis because by definition enrolments have been suspended, and we have got the Victorian, New South Wales, Queensland experience plus the practices of the Electoral Commission and the totality of the steps that go towards completing an enrolment will all be in the special case and then it will be a matter of constitutional fact as to what consequence follows.

HIS HONOUR:   You mentioned that you propose now that the draft special case be produced next Thursday, was it?

MR MERKEL:   Yes.  Could I hand up, your Honour – would your Honour just excuse me for a moment?

HIS HONOUR:   Yes, of course.  I do not mean to run ahead of where we are and I am yet to hear from the Solicitor, and of course I will do so, but it strikes me that Thursday would be too late.  You are already over time.  We have got it, as it were, tentatively booked in for May.  Unless I can be confident it is going to be proceeding by the end of next week, that is to say,

by the end of next Thursday, I do not think it is going to be proceeding, it just cannot be done. 

You cannot give me a draft special case on Thursday, I think – unless it is a work of art – and persuade me without at least some hours’ consideration of it that it is adequate to the task.  It would need to be before Thursday that I receive it but, as I say, I will hear from the Solicitor first and the other representative, Mr Brown.

MR MERKEL:   Yes.

HIS HONOUR:   Thank you.  Mr Solicitor.

MR GLEESON:   Your Honour, could I say something about the issues, or the principles, and then come back to the timing question?

HIS HONOUR:   Yes, thank you.

MR GLEESON:   What this correspondence for the last week or so seems to have demonstrated is that the plaintiff appears to have at least three cases, and if it does have three cases they have got to be clearly articulated in the pleading and in the questions so we know and the Court knows what we are dealing with.  Just to separate them out, their first case seems to be the one that appears in the letter of the affidavit at page 66, which is that the suspension period is invalid, it goes, but the rest of the Act can happily operate in the absence of a suspension period, and seems to do so in this manner.  That for people who lodge claims for enrolment up until the election day, or perhaps the time they seek to vote on the election day which introduces a further complexity, the Commissioner should discharge his duty to attempt to accept those claims, or process them, but if he cannot do so without undue delay then he may not process such claims. 

The end result of that first case seems to be it is not a case where everyone is entitled to enrolment and voting up to and including election day.  It is that many people are, but some are not, namely those who lodged their application so late in the period as to put the Commissioner to undue delay, they may be excluded from the process.  Now, that is a departure from the pleading because that is no longer a case of entitlement to enrol and vote up until the election day, it is something a bit short of that, but that seems to be the primary case.  That does raise factual questions, of course, as to what undue delay does or does not involve, but that is the first case.  The second case, your Honour, which is quite troubling is on page 67, paragraph 12, and it is only put as a possible case:

it may be open to the AEC to treat the provisional vote [at the polling booth] as standing in place of an enrolment form –

Now, that seems to be an attempt to revert to the original pleaded case which is you do not have to be enrolled or even try and enrol before the day, you simply turn up at the booth and you ask to engage in a provisional vote, and according to this case, the law requires that such persons be treated as if they were enrolled and their votes be counted.  That will raise a whole different series of impractical abilities, it sounds a bit like chaos, but that is the second case.

The third case, which is paragraphs 13 and 14, is more troubling.  It is a case that there is a cut‑off date in advance of the election date.  We are not told what it is, and we are not told the mechanism by which it is to be identified, but we are simply told it is a date that works backwards rather than forwards from the date of issue of the writs.  Now, that has a massive problem attached to what it is that Mr Merkel is arguing, because we do not know either what the cut‑off date is, how many days it is, or the mechanism by which it is done, and it has a deeper problem, your Honour, which is that there is no such provision in the statute.  For good reason, that there is a suspension period.  This is the antithesis of a suspension period. 

Now, that alternative position, the third case, seems to be inviting the Court as a matter of relief to re‑write the Electoral Act to have a different mechanism to the one it currently has and I dwell on that only – not only for today’s purpose of making sure we all know what case is being run for the hearing, but just to flag at the earliest possible date that the logic of at least one, if not more, of Mr Merkel’s cases cannot be confined to an attack on the suspension period.

The logic is really to say in order to be constitutionally valid the Act would have to have a different set of provisions to those it currently does, and that would mean that the relief he is really asking for is to strike down the Act in respect to this election because the suspension period turns out not to be severable.  Now, that has a whole different raft of consequences; that he is really asking for the Act to be struck down which would leave no election unless the Parliament urgently passed some different Act.

Now, I just wanted to tease that out because, although Mr Merkel gives soothing noises that we are all on the same page and the facts are going to be agreed and the Court has a nice neat point of law, we are very, very troubled that not only that he has got so many alternatives but where they go in terms of the relief that this Court could possibly be asked to give.  Of course, his problem is that Rowe was in a sense easy, in that the attack was on an amendment Act, and the assumption was that if the amendment Act was invalid, no one was attacking the primary Electoral Act, so the Commissioner simply conducted the election in accordance with the primary Act.  We fear that what Mr Merkel is really asking the Court to sanction is the Commissioner being asked to conduct an election under an Act which does not exist and that raises some very grave problems. 

Your Honour, that is the first point.  The second of these two points was your Honour asked about what sections Mr Merkel is now attacking and what has become clear is that conditionally at least he now also attacks section 155, which is the provision for closure of the rolls, and that has a problem because section 155 has various operations under the Act, one of the ones we have referred to Mr Merkel is section 90B, which is that the duty of the Commission to give information to persons has to be complied with “as soon as practicable after the closure of the Rolls”.

There may be more provisions in this category but what it shows is that the plaintiff is really seeking to bring down not just the suspension period but, contingently at least, the closure of the rolls and, it would seem, further provisions, and it is absolutely critical that the Court know the full gamut of provisions Mr Merkel is striking down because if he is really seeking to strike down 155 and 90B, he really is trying to bring down the law governing the next election.

So, your Honour, we have achieved something over the last week which is we think we know that they are the three cases and we think we know the additional provisions he seeks to strike down are 155 and perhaps 90B.  We would hope that in the statement of claim which it is now, I think, accepted needs to be amended by next Monday, Mr Merkel will grapple with these issues and not avoid them and, your Honour, taking up your Honour’s caution that the parties must have a proposed agreed special case to you in advance of the current proposed time and working backwards, probably, looking at these minutes, your Honour, that were handed up, what would need to happen is that paragraph 1 would need to read:

On or before midday on 21 March, the plaintiff file and serve any proposed amended statement of claim, together with full particulars of its case, including its case on alternative means, and every provision of the Electoral Act sought to be impugned directly or contingently. 

Then paragraph 2 might read:

On or before 5 pm on Tuesday, 22 March, the Commonwealth file and serve any proposed amended defence, including full particulars necessary to identify the Commonwealth’s defences.

Then the critical one, paragraph 3, I might suggest perhaps:

On or before 4 pm on Wednesday, 23 March, the plaintiff file and serve and any agreed special case.

So that would be by Wednesday, 4 pm, your Honour would have the document.  Then your Honour would not make at this stage perhaps the further orders pending the parties’ satisfaction of paragraphs 1, 2 and 3. 

HIS HONOUR:   On that sort of timetable, would there be any utility in coming back here next Thursday?

MR GLEESON:   Yes, there would, your Honour, yes.  Then the rest of the orders that we would be seeking next Thursday, if the parties are in order, would be largely as per 4 and following.  I think your Honour might note in relation to proposed 8, that the Electoral Commissioner requires only 10 pages, and as to 9 ‑ ‑ ‑

HIS HONOUR:   That is happy circumstance.

MR GLEESON:   As to 9, Mr Merkel should receive some modest extension beyond the five page reply to be able to deal with the Electoral Commissioner.

HIS HONOUR:   Yes, I see.  Thank you very much.  Mr Brown.

MR BROWN:   Your Honour, there is nothing I need to add beyond what my friend said.

HIS HONOUR:   Mr Merkel.

MR MERKEL:   Your Honour, we do not have any difficulty with the directions but can I clarify what we say is quite erroneous in my learned friend’s assumptions.  We say that the case – does your Honour have pages 66 and 67?

HIS HONOUR:   Just a moment.  Yes.

MR MERKEL:   Sorry, it is 65 to 67.  In our pleading we – I should say at the outset, the role of an alternative in terms of the Electoral Act is a matter of argument that we are confronting it by giving it – putting it in our statement of claims so we are prepared to confront it, but how it applies ultimately in the analysis of validity of provisions under the Electoral Act and whether it attracts some proportionality analysis is an issue that will be the subject of debate but can I just assume that it is in the ring and on that basis we have put two alternatives, not three.

The first is, your Honour, of the Act operating in accordance with its current provisions without any change, and my learned friend took you to paragraph 12 and paragraph 12 is not a second or alternative case.  What the facts in the special case show is that the Commissioner has a number of practices about how he effects enrolment in accordance with the Act, and the only reason that added sentence is put in is that the practices that the Commissioner undertakes to give effect to enrolment is how the Commissioner sees his obligation to implement the Act. 

We are not seeking any particular provision.  It will be entirely a matter for the Commissioner – depending on the outcome of the case – to decide what practical steps may be taken by him in addition to or not in addition to those that are currently available, but we are not suggesting he is obliged to do anything more than engage in the current practices for enrolment but without the suspension provision.  So the first alternative is the Act operating according to its terms.

The second alternative, your Honour, is that it is not a rewriting of the Act.  It is just that on the proportionality principle it is quite irrational and there is no purpose ….. served by a time running from the date of issue of the writs.  If there is any time based upon practicality or any other of the legitimate ends it would be a date measured backwards from the date of the poll.  The framework for a cut‑off date for a constitutionally valid cut‑off date prior to the polls opening or closing should be measured in the way in which we put the second alternative and it is used not to rewrite the Act but to demonstrate why the current cut‑off date is invalid as not meeting the constitutional requirement of having a substantial reason.  I just want to make it quite clear that that is how it is put and there is no rewriting of the Act involved whatsoever in our case.

HIS HONOUR:   Can I just understand that:  the first alternative is that any suspension period is invalid?

MR MERKEL:   Yes.

HIS HONOUR:   And the second is that a suspension ‑ ‑ ‑

MR MERKEL:   Sorry, sorry, can I just say the suspension period provided for in the Act is invalid.

HIS HONOUR:   I am on the first alternative at the moment.

MR MERKEL:   Yes, the suspension period, not any suspension period.  We are not saying ‑ ‑ ‑

HIS HONOUR:   Then, if that be so, what is the difference between the first and second alternatives?

MR MERKEL:   No, your Honour, the first alternative is merely that the Act operates without a suspension period.  It can operate by removal of the current suspension provisions. 

HIS HONOUR:   First we must find what is invalid about the existing legislation, must we not?

MR MERKEL:   Yes, the only thing that we are saying is invalid about the existing legislation are the impugned suspension provisions.  That is our primary position, because we say that section 155, properly construed, does not require that no more enrolments take place under the legislation after the close of rolls.  There are provisions which permit later enrolments, as happened in Rowe and has happened in other circumstances.  There is a notebook that allows for enrolments in particular circumstances that occur after the close of the rolls, but I do not want to get into all of that now.  It is a question of ultimate ‑ ‑ ‑

HIS HONOUR:   I just want to understand it in principle.  I am wrong in saying that the first alternative is that any suspension period is invalid, am I?  Beside the second alternative, we will come to that in a moment.  That seems to be more flexible ‑ ‑ ‑

MR MERKEL:   I am a bit troubled by - your Honour, we are challenging the impugned provisions which suspend seven days from the issue of the writs.  We say that there is no substantial reason just using the wording in Rowe without going into any more of that.  There is no substantial reason for that suspension.

HIS HONOUR:   Do you mean one of seven days or any?

MR MERKEL:   One of seven days, seven days from the issue of the writ.

HIS HONOUR:   So it might be okay if it were three or four, for argument’s sake, is that the way you are putting it?

MR MERKEL:   I am sorry.  If the suspension period ran – sorry, I will put it another way – if the suspension period on our alternative case ‑ ‑ ‑

HIS HONOUR:   No, stay with the first please, let us get that squared away first.  What is the first alternative?  Is it that any suspension period would be invalid or that something else, a particular suspension period is invalid?

MR MERKEL:   I think the response I would give to your Honour is that there is no constitutional requirement for a suspension period, and that is sufficient if we succeed on showing there is no substantial reason for the suspension provisions to invalidate those provisions, and the Act would operate according to its terms as set out in our first alternative.

HIS HONOUR:   So on the first one, there is no constitutional requirement for any suspension period and therefore any suspension period is invalid?

MR MERKEL:   No, your Honour, on our case we do not get to that second question.  We are only asking, are the impugned provisions invalid?  If Parliament were, for example, to suspend ‑ ‑ ‑

HIS HONOUR:   I am sorry to be obtuse about this ‑ ‑ ‑

MR MERKEL:   Can I just put it this way, your Honour?  There may be a margin for Parliament if it were to say, as in Queensland, that enrolments are to be completed or suspended from 5 pm on the day before the poll.  If that were the statutory provision in this case, then that may well be a constitutionally permissible suspension.  But this case is concerned with what we say is a constitutionally impermissible suspension which is seven days from the issue of the writ.  That is the primary case, and if ‑ ‑ ‑

HIS HONOUR:   Is it because it is calculated from the writs or because of some other reason that it is said to be invalid?

MR MERKEL:   It is said to be invalid, your Honour, because it serves no legitimate end and does not reasonably – proportionate or adapted to any of the ends put forward by our learned friends because it is arbitrary and it does not have any proper basis for functioning in the light of the constitutional facts that we say will be derived from the special case.  Can I just give your Honour one example?

HIS HONOUR:   Yes.

MR MERKEL:   There is a timetable provided for in the legislative scheme to fit in with the constitutional requirements.

HIS HONOUR:   Yes.

MR MERKEL:   From the date of dissolution of Parliament, I think the seven day period of the issue of writs will be a maximum of 17 days after the dissolution of Parliament.  The maximum period that can be provided for for the holding of the election, that is the polling date, is 68 days after dissolution.  On the case put forward, there is something like about 51 days during which enrolments are suspended for no legitimate end or purpose, and we say that will become very clear from the facts in the special case.

HIS HONOUR:   Without being too facile about it, the complaint is that the period is just too long, is that it?

MR MERKEL:   The period of suspension is too ‑ ‑ ‑

HIS HONOUR:   Too long.

MR MERKEL:   No, it is so restrictive that it has a substantial disenfranchising or disqualifying effect and distorts the integrity of the system by not recording people whose addresses have changed.

HIS HONOUR:   No, no, I understand the argument.  I just want to understand the fact on which it is based.  Is it because it is said to be too lengthy a period?

MR MERKEL:   On our first case, your Honour, we say that – can I go back to what I said, which is that there is no constitutionally required period for a suspension.  That is not to say that it may be within the margin of appreciation of Parliament to provide for some constitutionally permissible period of suspension such as happened in Queensland.  If the Queensland position were adopted under the Electoral Act, which was that the rolls close on the night before the election, that would probably be a constitutionally permissible period of suspending enrolments for reasons that in fact occur in Queensland.  That is as far as we need go, we say, for making good our case on invalidity of the actual suspension provisions.

HIS HONOUR:   Anything beyond that is not appropriate and adapted, is that it?

MR MERKEL:   Well, if it were the Queensland position, your Honour, it may well be appropriate.

HIS HONOUR:   No, I understand that, but anything more than the Queensland position in the sense of a greater period of suspension is not, you say, appropriate and adapted.

MR MERKEL:   Well, your Honour, it depends on the constitutional facts but if, for example, the Court was satisfied that the Electoral Commissioner needed seven days prior to the election to carry out all the essential administrative steps and that were a constitutional fact, then a suspension of enrolment from seven days prior to the polling date would be a constitutionally permissible suspension.

HIS HONOUR:   It sounds like a fascinating trial to hold and I would not mind doing it but I just do not have the capacity.

MR MERKEL:   No.

HIS HONOUR:   Are we going to have agreements if the Commissioner says, for example, look, it takes me seven days to get these things sorted out, minimum, I cannot practically do it in any less time, is there going to be a fight about that?

MR MERKEL:   No.  Your Honour, the agreed facts will be the agreed facts and the constitutional facts will be for this Court to determine.  Obviously that is going to be the case, your Honour, and if the Court cannot determine it to the extent that they are relied on they will not be established.  But I think your Honour is jumping ahead.  The facts are not, we believe, are not ultimately contentious.  The constitutional facts will be capable of being determined by the Court.  That is what the special case is there for.

HIS HONOUR:   All right, I think I now understand the first alternative and I apologise for being so slow to take it up.

MR MERKEL:   No, your Honour ‑ ‑ ‑

HIS HONOUR:   What is the second?  Could you just go through it again?

MR MERKEL:   Did your Honour appreciate that there is not a second alternative in paragraph 12?  We are not saying any more than that the Commissioner may adapt his practices to whatever the Court’s decision is but that is a matter for the Commissioner.  They may stay unchanged or they may be modified and we gave an example of how the AEC itself has been prepared to modify it but that is not something we say is an obligation.  So it is merely something that is open to him which will not appear in the particulars, given the way it has been misconstrued by our learned friends.

HIS HONOUR:   So there is only one case being put then, not an alternative case?

MR MERKEL:   That is the first case.  The alternative case is in paragraphs 13 and 14, your Honour, which is a ‑ ‑ ‑

MR GLEESON:   We would ask for paragraph 12 to be struck out.  Mr Merkel says it does not add anything to this ‑ ‑ ‑

HIS HONOUR:   We will get to that – 13 and 14, yes.

MR MERKEL:   The alternative position in paragraph 13 and 14, your Honour, is that one of the reasons amongst others why the current suspension is impermissible is that it is working from an arbitrary or an anomalous date, being seven days from the issue of the writs, rather than from a rational and relevant date, being how many days prior to the polls the Commissioner needs to pursue his statutory function under the Electoral Act of ensuring electoral rolls can be used and relied upon on the polling date. 

We say that we are not rewriting the Act, we are just indicating why there is no – an alternative way of saying there is no substantial reason for the current suspension period.  That is on the basis of Rowe the question that is required to be asked.  It is a demonstration of why there is no substantial reason because it is starting from the wrong end and it is not rationally connected to the time needed by the Commissioner on any basis which will be a constitutional fact we will be inviting the Court to find.  We may succeed or we may fail but if we succeed on that fact then, your Honour, that is a way for the Court to come to appreciate that there is no substantial reason for the suspension period.

Now, your Honour, can I go to the third point which is section 155.  As your Honour saw in our letter, we do not see 155 as operating of itself to suspend enrolment.  That will be a question of the proper construction of the statute.  There are many circumstances provided for, both in practice and under the statute, for a later supplementary certified list or an updated certified list to be provided for polling day.

If the impugned provisions are invalid, we say 155 would not be construed to do the work that they otherwise would have done, but if 155 itself procures the suspension without more, then we say it is invalid and we would put it that way.  But it is only our fall back case, your Honour, on the basis that the Court construed 155 to require a suspension and that after section 15A of the Acts Interpretation Act replied to it that was the only construction open because we only get to that section if the suspension period provisions are invalid.

So we say it would be a result the Court would not arrive at as define the suspension provisions which are sought to be impugned as invalid and then say, well, 155 does the same work and is valid.  We say it would not be construed to do the same work.  The suspension provisions are there for a reason.  Your Honour, insofar as other sections of the Act refer to the closing of the rolls, we say that they do not fall with 155.  We are not saying that there is any Armageddon of the kind my learned friend says, the suspension provisions, and if we were to get there, 155 were to fall, the Act will stand and there is no consequence for other provisions of the Act. 

They still can do the work that they are required to do, but we do not get to that, your Honour, because we say 155 need not be and would not be declared invalid because it would not have the operation contended for.  So, in the end, your Honour, rather than say the Act would fall with our case, we say the suspension provisions alone would fall and that is all that is needed to fall, and we are not aware of provisions that would otherwise affect that.

But to avoid what happened in Rowe, your Honour, it may be that there is some provision of which we are not aware.  What happened in Rowe is that the plaintiffs attacked certain provisions and it became clear towards the end of the case that there were other provisions which had the same effect which were not in issue and the Court realised that if the main provisions would go these other provisions which had the same effect should also go and required a section 78B notice in the last minute.

We make it quite clear, your Honour, that our target is the impugned suspension provisions and no more, but the Act is one of some complexity and we do not want to foreclose the possibility that it may turn up in argument that there are some other consequences of which we are unaware.  So that is how we put the case, your Honour.  But, having said that, we do not have any problem with the formulation our learned friend has put forward because we accept that we should not have to have this argument about what the pleadings mean.  We do not agree with his interpretation, but we do not see it as productive to have an argument about interpretation.  We will endeavour to clarify precisely how the claim is put.

HIS HONOUR:   Right.  I am not averse to dealing with the pleadings now, if that is what is required, if it will get the matter advanced.  If you think you can get it sorted out over the weekend more expeditiously fine, I will leave it until then.  But otherwise I will deal with it now because I do not understand, even now after several attempts, the alternative you are putting – at least I am not confident that I do.

MR MERKEL:   Well, your Honour, rather than take any time on it, we are happy to go along with the direction to file and serve our proposed amended statement of claim, your Honour, and if my learned friend wants to take an issue about that because he says it has still not cleared or clarified the matters, well, no doubt we will have to deal with it but we want to give it some thought over the weekend.

HIS HONOUR:   Are we still odds on or getting odds off to get this on by May, do you think, Mr Merkel, being practical?

MR MERKEL:   I think it is going to depend upon whether we get agreement or disagreement on the special case rather than anything else.  It

seems to us that the issues are quite clear and definable in the pleadings and we would expect, and we are hopeful, the special case will be resolved by the end of business on Wednesday, your Honour.

HIS HONOUR:   Very well, thank you.

MR MERKEL:   I should indicate, your Honour, material has just been coming through each day which has caused ‑ ‑ ‑

HIS HONOUR:   I can see that, I have read the affidavit.

MR MERKEL:    ‑ ‑ ‑ variations from both sides and there is no criticism of anyone for that.  It is just the short time span in which quite a complex factual scenario is being put forward.

HIS HONOUR:   Thank you.

MR GLEESON:   Your Honour, could I just say in the light of that, we are now very troubled, or more troubled than we were, as to whether May is achievable.  I am particularly troubled that (a) there is still a lack of clarity about this case.  I will not go on about it now but we do not understand either what the two cases are or the three cases, but (b), Mr Merkel will be seeking findings of fact, inferences of fact, which are beyond anything which we can agree to, which the Electoral Commissioner will agree to, as we understand it, and which are in the current special case.

If he wants a finding that this period is too long by reference to a whole lot of underlying facts, that is a process of inference, and we will not be agreeing to those facts.  I am troubled whether it is appropriate for the Full Court to be asked to be drawing those inferences or whether, as per other election cases, it really does need findings of fact.  As to his second case, which he says is that we have started from the wrong – or the Act has started from the wrong reference point, that also seems to have quite a few evaluative judgments in it about how one would design ‑ ‑ ‑

HIS HONOUR:   An alternative.

MR GLEESON:   ‑ ‑ ‑ an alternative. It seems to accept that there will be a suspension period of sorts, so it is a true alternative – some suspension periods are okay, some are not. The whole design of a period the Constitution has limited the Parliament; it can only do it in this way and not in that way. Now, that lacks clarity in that case but it requires a series of factual and evaluative judgments which will go well beyond anything in the special case. So I should just flag that having heard it this afternoon and having heard it more in person than on transcript I am very troubled whether this is achievable for a reference to the Full Court on this material.

I am happy to still try and do what is going to be tried to be done over the next three days but it really needs very close scrutiny as to whether the end product is suitable for a reference to the Full Court.  As to Mr Merkel’s final assurance that he is really only asking for the suspension period to be struck down and the prohibition that the Court would grant would simply tell the Commissioner ignore those provisions but otherwise just implement your Act, I am extremely troubled that he will prove the suspension periods are truly severable from the rest of the Act and once one does the journey through the sections we have already started to identify, he may well in his true alternative be saying this Electoral Act cannot apply under the Constitution, if that is what his case is it needs to be very, very clear.

He has disavowed any such case to date and the last thing I would want is in the middle of a hearing before a single judge or the Full Court for this to morph into a case that I am really saying the whole Act goes.  If it turns out the suspension provisions are inseverable, and if Mr Merkel keeps to his current ground that that is all he attacks and he does not attack the scheme as a whole, he may fail in his case for that reason, but it would be quite invidious to have this case morph into an attack upon the entire Act in the course of Mr Merkel’s argument and we are trying to prevent that occurring if it is humanly possible, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Brown, I take it you have got nothing to add?

MR BROWN:   No, your Honour.

HIS HONOUR:   Thank you.  Obviously I will make the directions that have been foreshadowed in paragraphs 1 to 4 of these draft orders.  I too am not a little concerned about the way things are developing.  If they do not resolve over the weekend pretty substantially so that it becomes clear as crystal what the case or two cases or three cases being put is or are and which divisions of the Act it will be contended are invalid and which it will not, then I very much doubt that it is appropriate to be dealt with by special case, in which case I will simply have to refer it to the Federal Court for there to be a trial to make findings of fact of the kind that would be required to make decisions about the sorts of arguments you have foreshadowed, Mr Merkel.

That said, obviously I urge you all to do your best to resolve the differences so that the matter can go forth because it seems to would be highly desirable that it be resolved at the tentative May sitting that has been allocated to it, otherwise at least from what I read in the newspapers it might all be too late.

MR MERKEL:   We are very cognisant of that, your Honour.

HIS HONOUR:   Very well, thank you.  I shall order as follows:

1. On or before midday 21 March 2016, the plaintiff shall file and serve any proposed amended statement of claim, together with full particulars of its case and its alternative case, and identifying therein every provision of the Electoral Act which is sought to be impugned directly or contingently.

2. On or before 5 pm on 22 March 2016, the Commonwealth shall file and serve any proposed amended defence, including full particulars, necessary to identify its defences. 

3. On or before 4 pm on 23 March 2016, the plaintiff shall file and serve any agreed special case.

4. A further hearing of this directions hearing is adjourned until 9.30 am on 24 March 2016.

I shall reserve the costs of each party of today.

MR GLEESON:   May it please the Court.

MR MERKEL:   May it please the Court.

HIS HONOUR:   Thank you, lady and gentlemen.  Adjourn now until 9.30 next Thursday morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 24 MARCH 2016