Questions referred pursuant to section 377 of the Commonwealth Electoral Act 1918; Re Wood

[1988] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Commonwealth Electoral Act

1918-1980

Registry	No C3 of 1988
Questions referred pursuant to
section 377 of the Commonwealth
Electoral Act 1918

RE SENATOR ROBERT WOOD

MASON CJ

Wood(3)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 JUNE 1988, AT 9.33 AM:

Copyright in the High Court of Australia

1/6/88

C3Tl/l/RB 1

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear for the Attorney-

General for the Commonwealth, pursuant to the terms of the notice of motion dated 19 May 1988.

(instructed by the Australian Government Solicitor)

MISS.J. ·coOMBS:  If the Court please, I appear for Elaine Nile,

who was a candidate at that election. (instructed

by Dearn, O'Kane & Associates)

NRA. ROBERTSON: If it please the Court, I appear for the

Australian Electoral Commission and also, Your Honour,

for Brian Richard Nugent, who is the Australian

Electoral Officer for New South Wales and to whom

the ordersproposed in the notice of motion or some of those orders are directed. I appear for him to abide any order of the Court. (instructed by Australian

Government Solicitor)

HIS HONOUR:	Are there any other a~pearances?
MR M.H. MACKER.RAS:	If you wish to ask me any questions

related to my written submission, I would be willing

to answer any such questions.

HIS HONOUR:  The Registrar has been advised by the Crown

Solicitor for the State of New South Wales that that

State does not wish to make any further submissions

nor does it wish to attend any further sittings

of the Court in relation to the matter. Yes,

Mr Solicitor.

MR GRIFFITH:  If Your Honour please. The penultimate paragraph

of the judgment delivered by the Court of Disputed

Returns, 12 May, raised the issue of whether the

jurisdiction of this Court is. exhausted by answering

the questions referred by the Senate or whether the

Court should make orders to give effect to its

determination made that day that there was a vacancy

in the Senate for the place which Senator Wood

was returned by ordering that it may be filled

by further counting and recounting of the ballot

papers. (Continued on page 3)

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Wood(3)

MR GRIFFITH (continuing): Your Honour, section 376 of

the Act, of course, provides that the jurisdiction

o f the Co u r t under d iv i s i on 2 Pa r t XX I I i s to

hear_ and determine the question referred by

resolution of the Senate. So that the jurisdiction

of the Court is ultimately dependent upon the

proper construction of the relevant question or

questions referred by resolution of the Senate.

We would submit, Your Honour, that once that

jurisdiction is established the powers of the Court
on the hearing of the reference extend to include by
virtue of section 379 all or any of the powers

conferred by section 360 as are appropriate to the

exercise of jurisdiction in the particular case.

Your Honour, the resolution of the

Senate of 16 February 1988 is in the reference book at various places, but particularly one picks up the

terms on page 002 of volu~e 1 of the questions book,

which was previously before the Court.	I am not sure
if Your Honour has a copy of that.

HIS HONOUR:	No, I do not hvae it at the present time.
MR GRIFFITH:	Volume 1, Your Honour.

HIS HONOUR:  Thank you, Mr Solicitior. I think we have

it amongst the papers. So, you can retain that.

Have you got volume 1 there?

MR GRIFFITH:  The questions themselves, Your Honour, are

set out in the decision of the Court of Disputed

Returns. Your Honour, we would submit that those

questions, as one sees on page 002 of volume 1,

properly should be read as a reference to this

Court. The entire subiect-rnatter of the corrected version

and consequences of resolution of the questions as

framed, to us, this is the natural reading of a

reference of questions to a body having broad

remedial powers. Indeed, Your Honour, that this was

the intention of the Senate in making the reference

may be confirmed by the extracts from the Senate

parliamentary debates on 16 February 1988 which

were transmitted to the Court, along with the

statement of the questions by the President of the

Senate on 18 February.

Your Honour, may I take you particularly,

firstly, to page 14?

HIS HONOUR:	Yes.
MR GRIFFITH:	At that stage, Your Honour, the debate is by

Senator Ray, Minister for Horne Affairs and Deputy

Manager of Government Business in the Senate, who
had the control of this issue in the Senate. After

the ·references in his speech to the issue, Your Honour

in the last full paragraph, right-hand column pn page '

14 of the book, he said:

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Wood(3)
MR GRIFFITH (continuing):

In sununary, in this particular case, the

Government and, I hope, the whole Senate, would argue that once this matter was drawn to the

attention of the Senate, it could not be ignored.

The Senate is not the appropriate body to sit

as a tribunal to rule on this matter. It should

go to the High Court under the powers conferred

on it by the ELECTORAL ACT.	We have asked the
High Court to make some rulings.	I make this

point very cleari h: cannot suggest to the

High Court what the remedies are. It will read

the ELECTORAL ACT- It will know the full powers
available to it and it will draw the appropriate
conclusions from that.

Your Honour, that is perhaps the strongest statement of intention that it was certainly contemplated that

the full remedial powers, including those embraced

by section 360, are intended to be vested in the Court
by the reference. This construction is confirmed,

Your Honour, on page 15 of the application book. There,

the speaker is Senator Short, and in the last part of the paragraph on the left-hand column of the last paragraph, Senator Short says:

Therefore I will make no other comment on

the conunents that Senator Ray made, other
than to say that I took it from what he

said - and I would seek his confirmation

on this - that he has in fact given this

chamber an assurance that the motion he has brought forward is wide enough to deal with

all relevant issues that might arise from

the Higher Court's consideration of this

matter.	I notice Senator Ray acknowledging
assent to	that.

Further, Your Honour, Senator Tate, the Minister for

Justice, on page 21 of the book, the last paragraph

commencing the right-hand column, Senator Tate said:

(continued on page 5)

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Wood(3)
MR GRIFFITH (continuing):

I entirely agree with the sentiments

expressed by Senator Robert Ray,that this

is a matter more properly determined by

the High Court sitting in its jurisdiction

of the Court of Disputed Returns. I think

the questions are framed in a way which

will permit that tribunal - I am sure it

would do so anyway - to canvass absolutely all
of the possibilities under the CONSTITUTION

to remedy this situation. That, of course,

does not preclude the Government from

appearing - no doubt will be done by the

Solicitor-General - before the High Court to

assist in its understanding of the CONSTITUTION,

and no doubt we will be seeking to do that.

But I will not canvass the actual remedies

and the possibilites; that is up to those

who appear before the High Court. It will be

then for it, in answer to our transmitting

of this matter to it,to make the necessary

declarations and orders.

So there, Your Honour, one gets very much, we would

submit, a confirmation that it is the whole matter

and not merely the bald issue of particular

questions and answers which were transmitted by

reference to the Court, pursuant to the resolution
of the Senate and division 2 of the relevant part of

the Act.

Your Honour, for those reasons we would submit that

the second of the alternative views canvassed in the

second-last paragraph of the judgment of

the Court of Disputed Returns on page 20 to page 21

is the appropriate course to take and in that mind,

Your Honour, the orders sought by the notice of motion

to which I have referred reflect, Your Honour, in

paragraphs 1 to 4, what we see as the immediate

course of these proceedings, namely that we would submit

that Your Honour should, today, order the Australian

Electoral Officer, for whom·my learned friend

Mr Robertson announces an appearance, to undertake

further counting and re-counting of the ballot papers

cast for candidates for election for the Senate.

(Continued on page 6)

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Wood(3)

HIS HONOUR:  Now, Mr Solicitor, you see this as an exercise

that is a preliminary to the Court finally making

a declaration as to the candidate who is duly

elected?

MR GRIFFITH:	Yes, we do, Your Honour.
HIS HONOUR:	Yes.
MR GRIFFITH:	And, of course, Your Honour, the Court is not

able to proceed to exercise the particular power

of paragraph "(vi) of section360 ( 1) until the Court

is informed, Your Honour, of the result of the
counting or further counting which is established

by the judgment of the Court the appropriate mechanism

to identify who is a candidate for the 12th place.

Your Honour, in BLUNDELL V VARDON, (1907) 4 CLR 1463,

there is an extensive report of Mr Justice Barton

sitting in the Court of Disputed Returns where,

when one reads the report, Your Honour, in effect

one gets the impression that His Honour himself went

very close to being the returning officer by

dealing with particular issues and particular bundles

of votes and making a running decision, as it were,

Your Honour, and then moving on to the - - -

HIS HONOUR:  I shall resist the temptation to follow that

example.

MR GRIFFITH:  Yes, well, Your Honour, we would submit that

it is appropriate for Your Honour to be one step

removed from that and to direct, in effect,
Mr Nugent to do his duty, Your Honour. But as appears
from the affidavit of Collin Anfield Hughes,

which has been sworn and filed on behalf of the

Electoral Commission, Your Honour, there are some

particular matters of direction as set out in
paragraph 9 ( i) to. (viii) which are identified as

matters where the electoral officer would require particular direction so as to complete the voting

conformity in. account, Your Honour, with the provisions

of the Act, bearing in mind the consequences of

the decision of the court as to the count on the

basis of not putting into question the return of

the 11 other candidates duly elected and bearing

in mind that the mechanism for the count is on

the basis that Wood should be taken to have nominated but

have, in effect, died, Your Honour, before the date

of election.

(Continued on page 7)

C3TS/l/SR 6 1/6/88

Wood(3) 
HIS HONOUR:  Yes, but that procedure would apply, that is,

the procedure applicable in relation to a

candidate who died before the election, is the

procedure that Mr Hughes is recommending should

be followed.

MR GRIFFITH:  Yes. Your Honour, it has to be modified for

the fact that the election of the 11 other
candidates cannot be called in jeopardy and so

consequential directions are sought to cover that.

HIS HONOUR:  Yes, are needed to preserve that situation.

MR GRIFFITH:  Yes, Your Honour. My learned friend,

Mr Robertson, is in a position to assist

Your Honour as to the technical issues subsumed

in that list of matters where direction is sought

but it does seem to be - I am instructed,

Your Honour - to the deponent and to the electoral

officer, the necessary matters where direction,

in effect, must be sought so that the account may

proceed on a satisfactory basis.

HIS HONOUR:  What do you say about paragraph 4, or do you

propose to leave that to Mr Robertson?

MR GRIFFITH:  Your Honour, paragraph 3, in effect, is the extent to which we desire orders today. We

contemplate that something further will be required

for the Court to exercise the jurisdiction which we

will move the Court to exercise pursuant to

section 361(6). It would seem logical, Your Honour,

therefore, that there should be a procedure for

reporting back to the Court of Disputed Returns
the result of this further count.· Perhapa other
mechanisms could be used to obtain the result
but, in our submission, this seems to be an

appropriate procedure which, in effect, gets one

back into the similar position that one, perhaps,

had Justice Barton in BLUNDELL V VARDON.	At the
position. So, Your Honour, it would seem
end of the day, the Court is informed of the

appropriate, in our submission, that Your Honour

either make an order in those terms or otherwise

adjourn this motion in contemplation that there

should be a further hearing and an application

made in the terms of paragraph 5 of the motion

to complete the matter.

(Continued on page 8)

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Wood(3)

HIS HONOUR:  Yes, well it is possible for me to give directions

and then adjourn in contemplation of the directions

being complied with and a situation emerging whereby

the Court could subsequently make the declaration

sought in paragraph 5 of the notice of motion.

MR GRIFFITH:  Yes, Your Honour, and we do move the Court,

Your Honour, to take that course in this case.

Of course, Your Honour, it must be a matter of

discretion as to whether or not the power under

section 360(l)(vi) should be exercised but in our

submission, Your Honour, there can be no issue

that the Court does have the power upon the reference.

It is one that was certainly within the contemplation

of the Senate when it referred the matter to the

Court and we would submit, Your Honour, particularly

appropriate for the Court to exercise in the

circumstances which have emerged in this case.

In effect, the Court will only be completing the

matter referred to it when, as we submit, it is
appropriate to do so and makes the order pursuant

to section 360. If Your Honour pleases.

HIS HONOUR:  Yes. Yes, Mr Robertson.

MR ROBERTSON:  If Your Honour pleases. The learned

Solicitor-General has referred to the affidavit

of Colin Anfield Hughes - does Your Honour wish

me to read it?

HIS HONOUR: No, there is no occasion to read it, I have

read it.

MR ROBERTSON:  Thank you, Your Honour. Your Honour will

see the expression of opinion in paragraph 9 and
the directions there referred to. Might I approach

those directions by perhaps reminding Your Honour

briefly of one or two of the passages in the judgment

of the Full Court?

HIS HONOUR:	Yes.
MR ROBERTSON:	I think it is 12 May thi~ year.

(Continued on page 9)

C3T7/l/AC	8	1/6/88
Wood(3)

MR ROBERTSON (continuing):  Could I take Your Honour to

page 15 and the purpose of reading this to

Your Honour is to remind Your Honour of the

conclusion and the basis of the conclusion of the

Court as to the extent of the invalidity. At the

paragraph that begins in the middle of the page
the Court refers to the ballot papers and the orders
that might be made and then at about point 7 of
the page the Court says:

The purpose of the poll is to choose in accordance with the Act the preferred

candidates who are qualified to be chosen,

but no effect can be given for the purpose
of the poll to the placing of a figure
against the name of a candidate who is not

qualified to be chosen: an indication of a

voter's preference for an unqualified candidate

is a nullity. That is not to say that the

ballot papers are informal. An unqualified

candidate who has been duly nominated, that

is, one whose nomination complies with the

formal requirements of the Act, is a

candidate whose name is properly included

on the ballot paper. But in the scrutiny,

the indications of preference for a
candidate cannot be treated as effective by
this Court once the return of the unqualified
candidate has been held to be invalid. That

is no reason for disregarding the other

indications of the voter's preference as

invalid. The vote is valid except to the

extent that the want of qualification makes

the particular indication of preference a

nullity. It is only to the extent that s.16

of the CONSTITUTION invalidates the particular

indication of preference that effect is denied

to the voter's expressed intention.

Then the Court refers to the analogy of the candidate

being deceased and refers to section 273(27):	a vote indicated on a ballot paper opposite	the name of a deceased candidate is counted
to the candidate next in the order of the
voter's preference and the numbers indicating
subsequent preferences are treated as altered
accordingly. For the purposes of the scrutiny
which may now be conducted, a vote for an
unqualified candidate is in the same position
as a vote for a candidate who has died, and the votes should be treated accordingly. By construing Pt XVIII in this way, the true
result of the polling - that is to say, the
true legal intent of the voters so far as
it is consistent with the CONSTITUTION and
the Act - can be ascertained.

C3T8/l/ND 9 1/6/88

Wood(3) (Continued on page 9A)

Then if I might take Your Honour to the brief

paragraph that begins on that page, the Court says:

passage on page 17 which the learned Solicitor-

(Continued on page 10)

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Wood(J)

MR ROBERTSON (continuing):

Save upon a further reference in accordance

with section 376 of the Act, the validity
of the election of the eleven persons duly
returned as elected is not now open to

challenge.

And then the last two words of that page and over on

to page 18:

If the unqualified candidate's nomination in that case was formally correct and his name

was properly on the ballot paper, it is

difficult to see how the election miscarried.

The problem of want of qualification arises

under the Act if an unqualified candidate is

elected, but an election is not avoided

if an unqualified candidate stands. If it

were otherwise, the nomination of unqualified

candidates would play havoc with the

electoral process, for the ministerial

officer who accepts nominations has no

general power to refuse a nomination in due

form ..... In any event, in the present case,
it is unreal to suggest that the presence

of Senator Wood's name on the ballot paper

has falsified the declared choice of the

people of the State for any of the first
eleven candidates.

It is those passages, Your Honour, that the directions that the Electoral Connnission seeks are designed to

effectuate.

If I could take Your Honour to the first

direction sought. That merely picks up, but with a

typographical error which I would ask Your Honour to

note, the Court's ruling at page 16 which I have

read to Your Honour. The typographical error is

that in the penultimate line it should read:

"Subsequent preferences be treated as altered
accordingly".	So it is the technical preferences

rather than the less technical preference.

Then, over on the second paragraph, that is

designed to make explicit that except for the purpose of Robert Wood being elected and a vote for him being

a nullity, his name is to be treated as validly on the

ballot paper and the election of the other 11 are not to be disrupted. So that the purpose of that

proposed direction is to make explicit that the vote

is valid except to the extent of that want of

qualification and that particular preference is a

nullity.

C3T9/l/SDL	10	1/6/88
Wood(3)

MR ROBERTSON (continuing):  Then paragraph 3 is also designed

to be complementary to the ruling of the Court that
the position of the other eleven duly elected not
be questioned, at least on the present reference,

that those persons' election is not open to challenge.

Then paragraph 4 deals with a point that unless made

explicit might be taken to cause some difficulty,
and that is the question of the group voting ticket,

and Your Honour will recall that there are provisions in the Act whereby two or more persons may apply to be listed and appear on the ballot paper as a group, and

there would be a suggestion open that seeing that in
this case there was only two candidates in the group

for the Nuclear Disarmament Party the - - -

HIS HONOUR:  One of whom was not qualified, therefore the

group provisions could not apply.

MR ROBERTSON:  Yes, and what direction 4 proposes is that

so to treat the ballot papers would be taking the

notion of Robert Wood's disqualification for election

too far and would be, as it were, subverting the Court's

ruling that he was validly on the ballot paper;

and furthermore, of course, it is consistent with the
intention of the exercise which is to give effect to
the preferencei of the voters, except to the extent that

they miscarried by the preference expressed for

Robert Wood. But as I said, Your Honour, the

inclusion of Robert Wood on the ballot paper is not

void. That would follow from the Court's ruling.

Only his election has miscarried and, in my submission,

the electors must be taken effectively to have used
the group voting ticket process, merely that the

preference for Robert Wood has miscarried.

Then paragraphs 5 and 6 of the proposed directions

can be taken together and are there to make express

that the vote for Robert Wood is valid, except that
the want of qualification makes preference a nullity,

so the proposed directions are designed to avoid any

suggestion that the invalidity of the election of

Robert Wood has any result in terms of the form of

the ballot paper. Then, Your Honour, paragraph 7,

proposed direction 7, deals with a possible result

that there is provision in the legislation for the

exhaus.tion of ballot papers at a particular point

and the circumstance where the elector has not

distinguished in a sense that the elector has given

the same number to Robert Wood and another candidate

but that vote would not be informal.

There is a fair amount of elasticity, or room for

error which is contemplated by section 270, so that

there is a circumstance where a voter could put the

same number against two candidates. If Your Honour

looks at section 270(l)(b), particularly

subsection (b)(ii) where it says:

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Wood(3)

in any other case - in all the squares opposite to the names of candidates or

in all those squares except one square

that is left blank, numbers in a sequence

of consecutive numbers corrnnencing with

the number 1 or numbers that with changes

to no more than 2 of them would be in such

a sequence.

So there is some flexibility allowed in the voting process and Your Honour will see that in subsection (d)

the Act states that a ballot paper which, as it were,

departs from the normal in that respect shall not

be taken to be informal.

(Continued on page 13)

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Wood(3)

MR ROBERTSON (continuing):  So to return to proposed direction 7

there is the possibility that an elector will not

have distinguished between Robert Wood and another

candidate and what is proposed is that nevertheless the vote which was on the original count, set aside

as exhausted, should not, as it were, be restored

because if one removed Robert Wood's name there

would only be an expression of choice for one

candidate.

HIS HONOUR:	Yes.
MR ROBERTSON:	Then, Your Honour, proposed direction 8 is,

as it were, a consequence of proposed direction 4.

If proposed direction 4 is made then there is no need

for any further physical counting of the group

voting tickets because the numbers that had been

extracted from those group voting tickets are

available and all that would be necessary to be

done would be to remove the choices for Robert Wood

and to move up by one,as a consequence, the

choices for the other candidates in accordance
with the proposed direction 1 and the judgment of
the Court of 12 May.

Your Honour, there is one matter which I should add which will have a consequence in terms of the

subsequent proceedings in this matter and that is

that my instructions are that the best estimate of
time for counting and further counting is some four

to six weeks.

HIS HONOUR:  Would you repeat that again, Mr Robertson?

MR ROBERTSON:  Yes, Your Honour. The best estimate of the time

it would take to do the counting, or further counting, to six weeks. if these directions were made would be some four

HIS HONOUR:	Four to six weeks?
MR ROBERTSON:	Yes.  So that I would seek, Your Honour, perhaps,

leave to notify the Registrar when that had been

completed or any other order which could conveniently
bring the matter back to the Court if Your Honour

minded to make order 4 in the notice of motion.

HIS HONOUR:	Yes.
MR ROBERTSON:	Your Honour, there are some short matters which

I would wish to put in relation to the submissions

on behalf of Mrs Nile and Mr Mackerras. Perhaps

I can do that.

HIS HONOUR: You ought to do that in reply, I think.

MR ROBERTSON:  In reply. If the Court pleases.

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Wood(3)

HIS HONOUR:  Yes, Miss Coombs?

MISS COOMBS:  Thank you, Your Honour. Now, Your Honour, as

far as what has been said is concerned, my client

submits that the order of the Court is that there

should be further counting or re-c01.mting and for

that reason we submit that it is still open for

us to suggest to the Court that the orders should

be either for further counting which would,

in our submission, be simply a continuation of
the count from the point at which Senator Wood was
declared elected and that the count should take
the form of simply eliminating Senator Wood at that
point and then passing on to the only remaining

continuing candidate who was Mrs Niles and that

would enable her to be declared elected.

Alternatively, Your Honour, we submit that

the re-c01.mting should take the form of a re-count

where a vote for Senator Wood, that is a primary

vote for Senator Wood, should be treated as a

blank so that any vote that had a primary vote

for Senator Wood - any ballot paper that showed a

primary vote for Senator Wood would therefore be

informal under the sections 268 to 270. And that

subsequent preferences for Senator Wood would be

informal or not depending on whether they complied

with that section 270(b)(ii) that Mr Robertson

referred to,	if they could be cured by that
subsection.

Now, Your Honour, we put these submissions

because, as Your Honour sees, the orders sought by
the Electoral Office require so many problems to
be solved. The problems to be solved require the

Court to give effect to the group voting tickets

which were only made available because two persons,

jointly, applied. Now as Your Honour sees, one of

those two persons was Robert Wood and Robert Wood

was at that time ineligible to make such an

application and therefore -and Mrs Dunn would not

her own.

have been eligible to make such an application on

(Continued on page 15)

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Wood(3)

MISS COOMBS (continuing):  So that if the Court were

contemplating making an order under paragraph 4

of the affidavit of Colin Hughes, the Court would

be contemplating making an order which validated

something which was an illegality and which was

giving a right to Mrs Dunn to which she is not

entitled of herself and which she only claims by

reason of something which she did with Robert Wood

which she would not have been entitled to do on

her own and which he was not entitled to participate

in.

Now, it is for that reason, Your Honour, that

we oppose the making of any order in the terms set

out in paragraph 4 of the affidavit of Colin Anfield

Hughes and we further oppose any order in the form

suggested by paragraphs 5 or 6 or 7 or 8 for the

same reason because these also require some validity

to be given to the votes cast for Robert Wood which

would not otherwise be permissible and, for this

reason, Your Honour, we have come forward with

an alternative suggestion.

Now, Your Honour, that alternative suggestion

is based in the case to which the Court referred,

REG V THE MAYOR OF TEWKESBURY, (1868) LR 3 QB 629

where the Court referred to page 634 where the

Court said:

The elector's vote is as utterly thrown away as if he had voted for a dead person,

or for the man in the moon.

But, two pages later, the Court, in that case,

expressed it differently by saying:

It was thrown away in the same manner as if

the vote had been given for a dead man, or

had not been given at all.

Now, Your Honour, my submission is based in the idea

that the Court should treat these votes for Wood as

if they had not been given at all and that would mean
treating primary votes for Wood as informal and the
preferences votes for Wood as formal only if they

could be cured - - -

HIS HONOUR:  But that is not how the Full Court treated the

decisio.1. in REG v MAYOR OF TEWKESBURY, is it, when

you look at the passage on page 16 of the Full Court's

judgment, in the sentence that follows the reference

to the case.

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Wood(3)

MISS COOMBS:	Page 16, Your Honour is referring to?
HIS HONOUR:	Yes.
MISS COOMBS:	Yes, Your Honour, I appreciate that but, 1n

my submission, my client is entitled to make a

submission relating to the method of the count

at this hearing and that that is supported by the

case of WEBSTER where the counsel representing
Mr McManus was given leave to appear not at the
main hearing, as my client got, but at this part
of the hearing which did not arise in that case

because Senator Webster was not disqualified but

it was put in RE WEBSTER that if the candidate

there was disqualified then after the disqualification

then the continuing candidate could have an

opportunity to argue questions relating to the
counting and recounting.

HIS HONOUR:  But that is on the question of interest to present

an argument to the Court.

MISS COOMBS:  Yes, well, Your Honour, that is so and my client

claims to have an interest.

HIS HONOUR:  Yes. I am not disputing that you have an interest

to present an argument to the Court, what I am

raising with you is whether your submission is

consistent with what the Full Court said in its

judgment.

MISS COOMBS: Well, Your Honour, I suppose my primary submission -

the onethat it should be simply dealt with by

further counting - that submission is not consistent

with the judgment and I concede that. Now, the

second submission that it should be treated as

a blank is not directly - is not necessarily -

consistent with it but, Your Honour, my third submission

that if Your Honour should accept these submissions

of the Solicitor-General and the electoral office,	that Your Honour would accept them only up to the
the first couple of - I will just find this affidavit -
only up to paragraph 3 - - -

HIS HONOUR:	Up to and including paragraph 3.
MISS COOMBS:	Up to and including paragraph 3, Your Honour.

If Your Honour were minded to accept the submissions

of the Solicitor-General and the electoral office

that Your Honour would accept those only as far

as paragraphs 1, 2 and 3 and Your Honour would

do that, possibly, because Your Honour regarded

yourself as bound by those expressions of opinion

on page 16.

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Wood(3)

MISS COOMBS (continuing):  But those expressions of opinion

on page 16, Your Honour, do not carry so far as

to require Your Honour to make the finding set

out in paragraphs 4, 5, 6, 7 and 8 and, more

especially, they certainly do not go so far as
to require Your Honour to make the orders set out
in 4 and 8 which are the ones that validate the

group voting ticket which was illegally applied for and granted and to which Mrs Dunn would not have been entitled had she applied on her own and

for that reason, Your Honour, on the basis that

no right should flow from an illegality that

Your Honour would not make the orders set out in paragraphs 4 and 8.

That much, in my submission, Your Honour,

1s not inconsistent with page 16 or any other page

in the Court's judgment as given. Thank you.

HIS HONOUR:  Thank you, Miss Coombs. Mr Solicitor, do you

wish to reply at this stage?

MR GRIFFITH:	No, Your Honour.
HIS HONOUR:	Mr Robertson?
MR ROBERTSON:	Your Honour, in terms of the first and second

methods of re-counting and counting proposed by

my learned friend, Miss·Coombs, my submission is

that those methods are inconsistent with the judgment

of the Full Court of 12 May and, in particular,

at pages 15 and 16 of that judgment and that Your Honour,

for that reason, would not make those orders, or

either of them.

(Continued on page 18)

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Wood(3)

MR ROBERTSON (continuing): In so far as the attack was made

on the group voting ticket proposal - - -

HIS HONOUR:	Paragraph 5 of the proposed directions.
MR ROBERTSON:	I think paragraph 4 is the main one, Your Honour.

My submission would be, as I have said earlier this morning, that so to treat the consequences of the

invalid election of Robert Wood would be to carry

those consequences backwards and to say that,

notwithstanding what the Full Court has said, his

name was, as it were, validly on the paper.
~less, the consequences of the invalidity of his

election should have the result that all the votes

for the group ticket for the Nuclear Disarmament

Party, and no doubt many of the other votes for

groups, would be invalid because, of course,

Miss Dunn, who:was,on that theory, there by herself

should, as it were, be theoretically treated as over

on the right-hand side of the ballot paper and not

qualified to be treated as a group. I mean, one

can see that strictly speaking, seeing that only

one of them could have been validly elected, one

can see an argument, of course, that they should
not have been on the ballot paper, but the consequences
of the Full Court's decision is that they both were
validly on the ballot paper, and the consequence of

that is that they could be a group, in my submission.

HIS HONOUR:	Yes.
MR ROBERTSON:	Your Honour, that is all I wish to say about

that. Might I mention just one matter which appears

in Mr Mackerras' document?

HIS HONOUR:	Yes.
MR ROBERTSON:	Does Your Honour have Mr Mackerras' document?
HIS HONOUR:	Yes, I have.
MR ROBERTSON:	As I understand it, what Mr Mackerras'

suggests is that the re-count under section 282

which he refers to in paragraph 3 should be

additional to the matters that are proposed in

the affidavit. Your Honour will see in paragraph 2

that Mr Mackerras says there is a further point that

he wishes to raise and I understand that to mean

that 282 should happen after the other counting

and re-counting.

But, Your Honour, in my submission, that

section is directed only to assist the Senate by

way of information, or perhaps advice, in the function

of the Senate under section 13 of the CONSTITUTIO~.

Your Honour will recall that the Senate is required

by section 13, after a double dissolutio~ to divide

senators into two groups, one of which has the longer

ter.m and one the shorter term.

C3Tl6/l/JM	18
Wood(3)
HIS HONOUR:	Yes.
MR ROBERTSON:	And 282, as the note to i_t suggests, is a "re-count

of Senate votes to determine order of election in
other circumstances." And, in my submission, 282 is

limited to inform or assist the Senate in the exercise

of that power and has nothing to do with the election

of a candidate to the Senate, but goes only to what

happens to the Senator once he has become a senator.

So that for the purposes of the present

proceedings, and on the present reference of the questions from the Senate, 282, in my submission

would not be - - -

HIS HONOUR:  Has no application.

MR ROBERTSON:  Yes. Thank you, Your Honour.

HIS HONOUR:  Well, I shall consider my decision in this matter.

I anticipate that I will be in a position to give

it at the beginning of next week.	The parties
will be notified accordingly.

AT 10.18 AM THE MATTER WAS ADJOURNED SINE DIE

C3Tl6/2/JM	19	1/6/88
Wood(3)