Re Canavan

[2017] HCATrans 182

[2017] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C11 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MATTHEW CANAVAN

Office of the Registry
  Canberra  No C12 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR SCOTT LUDLAM

Office of the Registry
  Canberra  No C13 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS LARISSA WATERS

Office of the Registry
  Canberra  No C14 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MALCOLM ROBERTS

Office of the Registry
  Canberra  No C15 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
THE HON. BARNABY JOYCE MP

Office of the Registry
  Canberra  No C17 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR FIONA NASH

Office of the Registry
  Canberra  No C18 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR NICK XENOPHON

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE AND SYDNEY

ON FRIDAY, 15 SEPTEMBER 2017, AT 10.17 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honour, I appear with my learned friend, MR M.P. COSTELLO, on behalf of the Commonwealth Attorney‑General in all of the references.  (instructed by Australian Government Solicitor)

MR A.L. TOKLEY, SC:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for Senator Canavan (C11/2017), and I appear for Senator Xenophon (C18/2017).  (instructed by Stokes Moore and Nick Xenophon & Co Lawyers)

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MR G.E.S. NG, for Mr Joyce MP (C15/2017), and Senator Nash (C17/2017).  (instructed by Everingham Solomons Solicitors and MinterEllison)

MR B.E. WALTERS, QC:   May it please the Court, I appear with my learned friend, MS E.A. BENNETT, for Mr Ludlam (C12/2017), and for Ms Waters (C13/2017).  (instructed by Fitzgerald & Browne)

MR N.J. OWENS, SC:   If it please the Court, I appear with my learned friend, MS M.F. AGUINALDO, for Mr Windsor, in the Joyce matter (C15/2017).  (instructed by Quinn Emanuel Urquhart & Sullivan)

MR R.J. SCHEELINGS:   May it please the Court, I appear on behalf of Senator Roberts (C14/2017).  (instructed by Holman Webb Lawyers)

HER HONOUR:   Yes.  Mr Scheelings, while you are there, the Attorney‑General has referred in his written submissions to the need for cross‑examination of Senator Roberts regarding – I assume regarding his state of mind and knowledge, and I should hear from the Solicitor.  I think he has in mind someone to act as amicus.  Justice Keane is available to hear this matter on Thursday or Friday of next week, 21 or 22 September in Brisbane.  I take it that either of those dates would be convenient to the parties, Mr Scheelings?

MR SCHEELINGS:   Despite the late notice on the submissions, I was able to make inquiries and both those dates are – I will suggest to the Court that Friday would be safer for everyone.

HER HONOUR:   Well, it might depend a little on the basis upon which we proceed.  I had in mind that the parties proceed on the basis that there be cross‑examination and they move to submissions at the end of the cross‑examination in relation to the findings that they seek.  It seemed to me that the questions are in such narrow compass that that ought to be achievable.  I did see that in the Attorney‑General’s submissions there was some suggestion that there be a gap between the cross‑examination and

submissions as to findings.  From your point of view, Mr Scheelings, do you see that as necessary?

MR SCHEELINGS:   We would be happy with either course, your Honour.  I should also flag to the Court that it would not just be my client cross‑examined.  We are seeking to cross‑examine the British expert on British nationality, Laurie Fransman, QC, and we are also in the process of obtaining our own expert evidence from the English Bar and we will endeavour to have that ready by Tuesday and the contradictor will, of course, then need to make a forensic decision as to whether our expert on British law – he or she would wish to cross‑examine that person as well.

HER HONOUR:   How are you going to undertake the cross‑examination of Mr Fransman, QC?

MR SCHEELINGS:   That is one of the purposes of the directions hearing.  That would have to be by video, I presume.  Given the late notice, last night indeed, from the Attorney‑General, the ball has only just started to get rolling but we now have a week to line people up, check their availability and get video conferencing available.

HER HONOUR:   Yes, I see.  Well, there would need to be an order that you provide any further expert evidence by 4.00 pm on Tuesday.

MR SCHEELINGS:   We undertake to do that, your Honour.

HER HONOUR:   Yes, thank you.  I should hear from the Solicitor‑General.  Mr Solicitor, about the process, do you have any difficulty with moving immediately to submissions in relation to findings at the conclusion of cross‑examination?

MR DONAGHUE:   Not at all, your Honour.  We had not intended to suggest that was necessary.  The reference to findings, in our submission, was a reference to the hope that, given the narrow compass of the matters, it may be possible for the Court, having heard the evidence and submissions on the Thursday, to make findings on Friday which would then allow submissions to be put in on the next business day by the Attorney, which is what the current timetable would contemplate.  Now, if the Court cannot make findings that quickly, then it might be necessary to adjust the timetable slightly, but that was what we had in mind.

HER HONOUR:   Yes, I see.  I would not tie Justice Keane to that course of action.

MR DONAGHUE:   No.

HER HONOUR:   Although it is a matter for his Honour as to how long it takes.  The cross‑examination of the expert complicates things a little more.

MR DONAGHUE:   Your Honour, can I say a couple of things about that.  First, the orders that your Honour made on the last occasion required Senator Roberts to file any expert evidence that he sought to file by Tuesday of this week together with a submission as to why that evidence should be received.  That did not happen.  There was no application for a variation of the order that your Honour had made.  There was no notice to anyone that it was intended that further evidence would be being sought until it was communicated to my junior this morning.  So it is not apparent to us without some explanation being given as to why your Honour’s orders were not complied with that any further opportunity should be provided.

In relation to the question of notice, we served the submissions that your Honour has seen last night.  Those submissions foreshadow, for reasons there explained, the desirability of cross‑examining Senator Roberts.  That is a matter that Senator Roberts’ own counsel anticipated would be required weeks ago at the first directions hearing on the 24th.

HER HONOUR:   Yes, I recall that from the first directions hearing.  Yes.

MR DONAGHUE:   So it is not apparent why, in some apparent tit‑for‑tat sense, the fact that we said that that was necessary suddenly means that there is a need to cross‑examine Mr Fransman.  If there is such a need it did not arise by reason of anything that we did yesterday and, again, there has not been any indication of why that is necessary.  We have, not having had notice of the suggestion until this morning, no idea as to Mr Fransman’s availability or whether it will be possible for him to give evidence on Thursday of next week.  We do know that he is very busy because we have been engaged with him in relation to obtaining a report in relation to Senator Xenophon and that has proved difficult in light of the constraints on his time.  So I am not confident that he will be available.

In my submission, your Honour, if our friends are determined to proceed down this path then it does raise a question as to whether this matter can stay with the others.  Your Honour will have seen in our submissions that we posited two alternatives.  Them all staying together does seem possible, given your Honour has indicated Justice Keane can hear the cross‑examination next Thursday, but if there is to be cross‑examination on experts on a topic not identified that does seem to put the capacity to keep this matter together with the others in some real jeopardy, in our submission.

HER HONOUR:   Well, I will hear from Mr Scheelings.  Mr Scheelings, the Solicitor‑General’s submissions have reminded me that the timetable has not been adhered to in a number of respects by your client.

MR SCHEELINGS:   I do not have the transcript with me but your Honour will also recall at the first directions hearing my senior reserving his rights to put on evidence and, indeed, your Honour requesting that my senior and the Solicitor‑General go away and discuss it.  That procedure fell through.  There is also discussion in the transcript that we reserved our right to put on an expert, that the desire to have a…..of my client’s co‑operation in feeding instructions to Mr Fransman via the Attorney‑General’s solicitors could not be done until we had gathered our facts, and that only then would we be in a position to know what instructions should go to the expert.

The instructions went regardless.  The report has come back and now we are seeking to put in an alternative expert report for the assistance of the Court in relation to the short compass of the last part of Mr Fransman’s report in our matter in relation to legal effectiveness of renunciation.

HER HONOUR:   Well, in outline, what is the controversy as between your expert and – what does your expert say that in some way contradicts Mr Fransman, QC’s report?

MR SCHEELINGS:   Well, we do not have it yet, but we have asked our expert ‑ ‑ ‑

HER HONOUR:   I am sorry, I thought you said you had received it.

MR SCHEELINGS:   No, I hope I did not say that.  We are hoping to get it by Tuesday and your Honour flagged that there will be an order to that effect two days before Thursday.

HER HONOUR:   Are you able to say what will be said in the report?

MR SCHEELINGS:   Well, we as counsel took the view that we would seek expert opinion on the last part of Mr Fransman’s report in relation to the legal effectiveness of our client’s renunciation on 6 May, so it is very short compass.

HER HONOUR:   Have you received that advice?  You actually have not received anything even orally?  You cannot say what the issue is?

MR SCHEELINGS:   Well, we have received it orally, that is correct, so it is being typed up now, and it would appear that there is a direct contradiction between the two experts on the legal effect of that renunciation, or at least arguably so.

HER HONOUR:   What does your expert say?

MR SCHEELINGS:   Well, as a matter of British law, looking to the British Nationality Act and the delegated legislation empowered by that Act, an RN Form is completely unnecessary.  It is not a statutory or any other requirement; it is a mere administrative form.  What is required are the criteria set out in Schedule 5 of the relevant delegated legislation and that is of short compass and it appears that my client’s email covers those criteria and the issue of fees, there appears to be a strong legal difference of opinion as to whether the validity of a declaration - which is not an application – a declaration of renunciation, it needs to be accompanied by fees, or is in any way to be considered invalid legally under British nationality law through the failure of any accompanying fees.  That is our understanding.

HER HONOUR:   What is the name of your expert?

MR SCHEELINGS:   At the moment we have a junior, Adrian Berry, in the same chambers as Mr Fransman, and we are in the process of getting a senior as well.  He was – but if – and that appears to be the bottleneck, and so if that remains a bottleneck we will just undertake to file Mr Berry’s report as a junior by – in order to meet the deadline of Tuesday, and he is an expert in nationality law.  He has in fact juniored for Mr Fransman, QC often.  Your Honour will appreciate that the amount of expertise, even at the London bar in that very small field of expertise, the amount of resources to draw on is small.

HER HONOUR:   Given that this should have been put in train some time ago, I propose to order that any expert evidence upon which you intend to rely, limited to the topics that you have indicated, be filed by 4.00 pm on Monday afternoon.

MR SCHEELINGS:   May it please the Court.

HER HONOUR:   And that the cross‑examination of Senator Roberts and any cross‑examination of Mr Fransman, QC proceed at 10.15 am on Thursday, 21 September, or such other time as Justice Keane may order.  I add that qualification because, of course, any cross‑examination of Mr Fransman, QC might have to accommodate time differences.

MR SCHEELINGS:   That is right.

HER HONOUR:   I would expect the two experts in accordance with usual custom – after the exchange of reports – to have met and discussed their

differences so that they are in a position, if cross‑examination is necessary, to say exactly where their differences lie and identify it for the Court to save time and as I have indicated, I would expect the parties to be able to proceed to submissions in relation to the findings sought at the conclusion of the hearing.  What is your time estimate for how long the cross‑examination and the hearing might take?  I should ask you first, while you are on your feet, in relation to cross‑examination of Mr Fransman, how long do you estimate that might take, Mr Scheelings?

MR SCHEELINGS:   My estimate would be no more than an hour, perhaps an hour and a half - two hours at the absolute outer limit.

HER HONOUR:   Goodness, you do have a lot to talk about.

MR SCHEELINGS:   We do - a lot of legislative material to go through.

HER HONOUR:   I see.  All right.  Mr Solicitor, what is your time estimate in relation to the cross‑examination of Senator Roberts?

MR DONAGHUE:   Your Honour, it is difficult for me to answer that question because as your Honour has seen we do not propose that the Attorney conduct that cross‑examination but, having said that, it is our view that the area of dispute is quite narrow.  I would be amazed if it took more than an hour.

HER HONOUR:   Yes.

MR DONAGHUE:   It may well take less.

HER HONOUR:   Yes, that was certainly the impression I had.  Are you able to ‑ ‑ ‑

MR DONAGHUE:   Your Honour, can I just add one thing, if I might, in relation to the proposed cross‑examination of Mr Fransman?  As I understood my friend, he identified two topics, one related to the use of the Form RN and one related to the importance of paying the fee.  In relation to the first of those topics, Mr Fransman says in paragraph 76 of his report that it is not necessary to use the Form RN.  He expressly says:

A valid declaration may be made otherwise than using –

the form.  So it is difficult to see how there is any issue of dispute about that.  Mr Fransman’s report is quite clear.  If the area of debate is about the fees, then, in my submission, our friend’s application to cross‑examination should be limited in that respect so that Mr Fransman knows what he confronts and it is difficult to see how that could take anywhere like two hours.

HER HONOUR:   Well, I would expect that any cross‑examination of Mr Fransman could only be on the basis of clearly identified contradiction in the report to be obtained and filed by Monday afternoon.  If there is any need for further identification of issues from your perspective, Mr Solicitor, I would suggest that your solicitors contact Justice Keane’s associate and have the matter listed for further directions perhaps on the Tuesday. 

MR DONAGHUE:   Thank you, your Honour.

HER HONOUR:   I would have thought that experts in this area should be able to identify for the Court what, if any, issues there are actually arising as between them and as I have said, I would expect experts acting appropriately to confer for that purpose, and since they are in chambers they should not have to walk very far.

MR DONAGHUE:   Indeed, your Honour, it should not be difficult. 

HER HONOUR:   I take it then, Mr Solicitor, that there are not seen to be any other issues of fact – contentious issues arising with respect to the affidavit evidence of any other person who has filed an affidavit with respect to the references.

MR DONAGHUE:   With respect to the other references, your Honour, that is our view.  With respect to the Roberts reference, we have sought not to confine the approach that an amicus might wish to take.  We anticipate cross‑examination on the knowledge question in relation to Senator Roberts.  It is possible that the amicus might take the view that Senator Roberts’ sister needs to be cross‑examined on the same point.  She has filed an affidavit apparently designed to support Senator Roberts’ affidavit on the knowledge question. 

There is also a possibility that the amicus might seek to cross‑examine on the topic of the reasonableness of the steps taken by Senator Roberts to renounce, but we do not seek to confine the amicus in any way in that respect.  But, even if the amicus does go down that path, again I anticipate it would be quite a confined cross‑examination.  But, other than those issues in the Roberts’ reference, what your Honour puts to me is correct and we do not see any other factual issue emerging.

HER HONOUR:   Well, if there is any extension of issues in relation to the reference concerning Senator Roberts, Justice Keane should be advised, of course.

MR DONAGHUE:   Yes, your Honour.

HER HONOUR:   Yes.  I should perhaps make an order with respect to the appointment and grant leave to the person you have in mind to appear as amicus, should I not?

MR DONAGHUE:   Yes, your Honour.  The person is Mr Stephen Lloyd, SC.

HER HONOUR:   Yes.  I grant leave to Mr Stephen Lloyd, SC to appear as amicus to act as a contradictor in relation to the facts concerning the issues relating to Senator Roberts’ affidavit evidence which have been outlined by the Solicitor‑General.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   We need then to deal with the contradictors as to law, Mr Solicitor.  Could I just review what seems to me to be the position?  There would need to be a contradictor necessary with respect to Senator Canavan.  A contradictor would not be necessary with respect to Mr Joyce because Mr Windsor effectively contradicts.  There would probably need to be a contradictor with respect to Senators Nash and Xenophon but I am not certain of that because affidavit evidence has not been filed.  A contradictor would seem to be necessary with respect to Senator Waters, but you were not sure. 

You were uncertain, I think, on the last occasion and there would not seem to be a necessary contradictor with respect to Mr Ludlam because there is no need for further submissions.  Submissions will be put for him and your argument is – the Commonwealth’s argument is, I think, that he is caught by – so the Commonwealth is effectively a contradictor, and in relation to Senator Roberts, do I take it that the Commonwealth will be the contradictor? 

MR DONAGHUE:   On law, your Honour, yes.

HER HONOUR:   That is, the legal contradictor.

MR DONAGHUE:   Yes, yes, that is so.  So, your Honour, if I could take them in reverse order.  Your Honour is right with respect to Roberts.  With respect to Ludlam we respectfully agree.  With respect to Ms Waters, as I understand it, her counsel will be submitting that she was disqualified by reason of section 44(i).  We – the Attorney‑General will be submitting otherwise, and so there will be a contradictor in that matter.

HER HONOUR:   Yes, so we do not need one there.

MR DONAGHUE:   So we do not need one there.  In relation to Joyce, of course, Mr Windsor is already there.  So that leaves Senators Canavan, Nash and Xenophon.

HER HONOUR:   Yes.

MR DONAGHUE:   In our submission, the legal argument, as it relates to those three Senators, will be materially indistinguishable from the legal argument that relates to Mr Joyce.  It is, as we see the position, virtually inevitable that they will stand or fall together, and in those circumstances we had understood, perhaps incorrectly, that Mr Windsor’s presence making legal arguments against Mr Joyce would serve the purpose of there being legal contradiction as to the issues that will arise in relation to 44(i).

HER HONOUR:   The evidence in relation to each of them is obviously distinct but we have – I think it was agreed at the last directions there is not a need for factual contradiction and that is confirmed today.  But you say the same legal issue is common to both and that will be ventilated effectively in the proceedings relating to Mr Joyce?

MR DONAGHUE:   Yes, your Honour, because all of them were born in Australia and all of them have sworn affidavit evidence saying that they had no knowledge of the fact that by reason of the operation of the law of a foreign country they acquired citizenship by descent under the law of that country in addition to their Australian citizenship on birth.  That position is common to all of them ‑ ‑ ‑

HER HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ and it is likely that, however that issue be resolved as a matter of the proper construction of 44(i), the consequence will then follow in common for all.

HER HONOUR:   Yes, I agree with that course, so I agree that a contradictor is not necessary in those matters.  I think there were some short minutes of order proposed by Mr Windsor in relation to the reference concerning Mr Joyce.

MR DONAGHUE:   Yes.  Your Honour, could I ‑ ‑ ‑

HER HONOUR:   We probably need to discuss that evidence in a little compass as well.

MR DONAGHUE:   The Windsor evidence in relation to Mr Joyce, yes.  Your Honour, the Attorney‑General’s submission in relation to that material is that there is no opposition to the filing of the report of Mr Cooke, QC and Professor Philip Joseph.  There is ‑ ‑ ‑

HER HONOUR:   It is the Fox affidavit evidence that you have some difficulty with, is it?

MR DONAGHUE:   Yes, the Fox affidavit evidence is more complex because, as your Honour will have seen, that is a solicitor’s affidavit that by reason of a variety of attachments of a variety of different forms seeks to prove foreign law, not through the use of an expert in the way that would normally be done and is being done in all of the other references, but just by exhibiting in some cases extracts from academic work; in some cases research work done by Mr Windsor’s solicitors themselves.

HER HONOUR:   Is it the relevance of the evidence or the method of proof that you are concerned with, or both?

MR DONAGHUE:   Well, both, but from a relevance point of view we accept that the material could go before the Court and parties could make such submissions as they see fit.  But our difficulty is that the method of proof is problematic, so if your Honour looks, for example, at the table that has been extracted in paragraph 10 of the Fox affidavit, that is a table that is lifted from an academic book that was published in 2001 and in relation to 25 different countries reduces the citizenship law of those countries to two yes or no answers.

HER HONOUR:   Yes.

MR DONAGHUE:   Now, quite what the Court is supposed to do with that, we are not sure, but obviously it entirely eliminates any of the nuance or complexity that is almost certain to exist in the laws of those countries as to – that have been summarised in that way, and the position is that we were asked to agree to this after close of business on Tuesday and it is simply not within our knowledge how the citizenship law of 25 different countries operated up to 120 years ago.  So, in our submission, if these matters are to be proved, they should be proved in a more orthodox fashion. 

Now, it may be that in fact there is no dispute between us about that because, as I understand it, Mr Windsor has proposed some orders that would permit the filing of translations of statute law of other countries and additional expert evidence as to the statute law of those countries by the middle of next week.  I also understand that there are discussions between counsel for Mr Joyce and Mr Windsor about agreeing facts.

So, it may be that our friends are not actually seeking to rely on the Fox affidavit, that it was really to put us on notice of the kind of material

that they were seeking to have agreed or put on through other means and that, if that can be done in a more conventional fashion, then no difficulty may arise.

But at the moment, in our submission, what you see in the Fox affidavit by way of MF‑4, for example, is just a summary of foreign law prepared in‑house by Mr Windsor’s solicitors.  MF‑7 is the table I have referred to.  That, we submit, is not a satisfactory way to prove foreign law, if it be relevant, but it may be that the dispute evaporates when your Honour hears from counsel for Mr Windsor.

Other than that, your Honour, we were asked to give some additional documents to our friends in relation to Mr Joyce’s nomination and that has either – I believe that has been done so that there is not any issue there.  So it is really only the Fox affidavit that creates an issue and that may well be overtaken by the orders that our friends have proposed.

HER HONOUR:   Yes.  Well, I should ask Mr Owens then.

MR OWENS:   Your Honour, can I say a few things.  May I first deal with the position of Mr Windsor as a contradictor and make very clear that we conceive of our role as being limited to contradiction in the Joyce matter and ‑ ‑ ‑

HER HONOUR:   I understand that but I think the Solicitor‑General is suggesting that that will provide coverage with respect to the others.

MR OWENS:   It may, but ‑ ‑ ‑

HER HONOUR:   You are not expected to make submissions in relation to the other references, if that is your concern.

MR OWENS:   Quite, and the point – not my concern.  My concern is to make clear that everyone understands that not only will we not make submissions in relation to the other references but we will not even turn our mind to any differences in the factual positions in each of them to consider whether there would be a difference argument that could be put contrary to the position being advanced by the Attorney‑General and the relevant Member of Parliament.

HER HONOUR:   Yes, I understand that.

MR OWENS:   We would happy to take on that broader role of legal contradictor in those other matters if it would assist the Court, but unless our role is broadened we do not intend to do that.

HER HONOUR:   Well, I will hear from the Solicitor‑General again in relation to that in a moment.  Just dealing though with the Fox affidavit, how do you propose to prove the matters that are referred to there?

MR OWENS:   We propose to deal with that in the way that my learned friend, the Solicitor, has pointed out, which is that since the service of that evidence there has been productive correspondence between my solicitors and Mr Joyce’s solicitors and the Attorney‑General’s solicitors, and at the end of the day what we are going to seek to do is to prepare a statement of agreed facts.  To the extent we can agree on facts in relation to the legal position in other countries, they will be contained in that statement of agreed facts.  So that deals with MF‑7.  We will also, as the orders propose, file expert evidence from an expert in French, German and United States law only ‑ ‑ ‑

HER HONOUR:   Yes.

MR OWENS:   ‑ ‑ ‑ and we will seek to rely on that as expert evidence in the usual way, and that will overtake – the French expert will overtake what is currently contained at MF‑1 and MF‑2 of the Fox affidavit.  We would not understand that there was any difficulty with MF‑3, which is the statistical information published by the Parliament about populations at various points in time.  There was a concern about some of the material not being translated by an accredited translator.  We will attend to that and we will provide accredited translations of ‑ ‑ ‑

HER HONOUR:   Is that the purpose of the proposed order number 2?

MR OWENS:   Yes, your Honour.

HER HONOUR:   Yes.

MR OWENS:   Yes.  So, order 1 is the French, German and United States expert evidence, and order 2 is any accredited translations.

HER HONOUR:   Yes.

MR OWENS:   Order 3 is simply extending time for the statement of agreed facts that we are working on with the Attorney‑General and Mr Joyce.

HER HONOUR: I take it that the relevance of the French, German and United States law is to show that notions of citizenship by descent were commonly understood at the time that the Constitution was drafted?

MR OWENS:   Both birth and descent and also to identify what the sequelae of being a foreign citizen was in at least the example of those countries. 

HER HONOUR:   Yes, I see.  I should then hear from Mr Walker.

MR WALKER:   Your Honour, we do not have anything to add, except that with respect to the agreed facts in the matter for Mr Joyce, the parties have briefly discussed the fact that we will seek to encompass within that not only material presently in affidavit form but also supplied through an exchange of correspondence.  We anticipate no difficulty whatever in reaching a sufficiently comprehensive statement of agreed facts for his matter.  We are not aware of any impending difficulty in the same regard with respect to Senator Nash.

HER HONOUR:   Thank you.  Mr Solicitor, I only need to raise two matters with you then.  One is, are you then content with the orders proposed by Mr Windsor’s legal representatives in relation to the evidence?

MR DONAGHUE:   Is that a three paragraph minute of order, your Honour?

HER HONOUR:   Yes, that is right.

MR DONAGHUE:   The only variation we would seek, your Honour, is that the third of those orders proposes that it be limited to C15.  That order is about a statement of agreed facts and it may be of assistance if your Honour would make that order across all of the matters, so that if there are things that need to be dealt with in any of them they could be dealt with within the same timeframe, but other than that, your Honour, we are content with those orders.

HER HONOUR:   The points made by Mr Owens in relation to contradiction, you do not see the need for a legal contradictor based upon any sort of differences of the factual – you maintain your position that the legal issue remains exactly the same.

MR DONAGHUE:   It presently seems to us that it does.  Obviously we have not seen all the material that people will file, but it does appear to us that the decisive issues in the case will be exactly the same across all of them and so that one will simply be adding further complexity to an already complex hearing by adding in additional contradictors in the other matters.

HER HONOUR:   Yes, very well.  I will make the following orders sought with the one variation sought by the Solicitor‑General:

1.By 4.00 pm on 20 September 2017, Mr Windsor file and serve any further expert evidence on foreign domestic law;

2.By 12.00 pm on 21 September 2017, Mr Windsor file and serve any further translations of provisions of foreign domestic law;

3.In all matters the time for compliance with Order 8 of the orders made on 24 August 2017 be extended to 4.00 pm on 21 September 2017.

Before I proceed, there are some further orders sought by Senator Canavan.  I would like to go back to the question of the cross‑examination of experts in relation to the Roberts’ reference.  Mr Scheelings, it occurs to me that given the short timeframe, it would be of assistance both to the Court and I am sure to Mr Fransman, QC and the contradictor, that your expert identify with precision, after having conferred with Mr Fransman, identify in a short dot point document where he sees the issues lying - the contest of expert view lying, and I think that document should be provided by 4.00 pm on Tuesday.  I do not think that should cause great difficulty.

MR SCHEELINGS:   May it please the Court.

HER HONOUR:   Yes, thank you.  Now, some further orders are sought by Senator Canavan, I think.  Mr Tokley.

MR TOKLEY:   They are, your Honour.  Yes, your Honour, it is in relation to the filing of an expert’s report dealing with statistical matters.  I do not know if your Honour received the submissions, the brief submissions we filed.

HER HONOUR:   I did, so I am looking at paragraph 7 of your submissions then.

MR TOKLEY:   Yes, if it please, your Honour, and also we provided an affidavit to explain the delay and the cause of the delay.

HER HONOUR:   Yes, I have read the affidavit.

MR TOKLEY:   Thank you, your Honour.  I do not think there is any opposition to the proposed change to the orders.  It is only – it brings it in line with the orders that are proposed to be made in the Nash and Xenophon matters and I do not think anybody will be prejudiced by the extension of time within which to file the expert’s report.  Of course, we would liaise with the Solicitor‑General’s office in relation to such matters if anybody was going to be embarrassed about it.

HER HONOUR:   Mr Solicitor, do you have any difficulty with the orders sought?

MR DONAGHUE:   We do not, your Honour, no, they are not opposed.

HER HONOUR:   Very well, I will make the following orders.  In matter C11 of 2017 only, vacate the order I made, No 7, on 24 August 2017 to:

Senator Canavan is to file and serve the expert report of Professors Mangan and Mann by 4.00 pm on 21 September 2017.

Mr Solicitor, then I think it is otherwise orders are those proposed by you in matters C11 to C15 and then the separate orders in matters C17 and C18 which are the two new references.

MR DONAGHUE:   That is right, your Honour, and with those two sets of orders together, then the timetables in all of the matters will align.

HER HONOUR:   Yes, I understand that.

MR DONAGHUE:   There is one matter I would seek to raise with your Honour by way of variation in C11 to C15.  These orders are the subject of agreement between all of the parties, as I understand it, as confirmed to my instructors.  So, the slight variation I am about to propose will be new to my friends, but order 2 in that proposal concerns the filing of an application book.  The order currently contemplates that that document be filed by 4.00 pm on 22 September but, as a result of some of the other things that have happened this morning, there are now proposals for material from Senator Canavan and also material from Mr Joyce to be filed the day before.

HER HONOUR:   Yes.

MR DONAGHUE:   So that, in order for them to be feasible, we submit that that order should be varied so that it requires the application book to be filed and served on 26 September which is the next business day in Canberra.  But with that variation, if the Court pleases, we submit that those orders should be made in both – or the orders we proposed in C11 to C15 and then those set out in paragraph 13 of our submissions in the new references should be made.  If your Honour is minded to make those orders in C17 and C18, my instructions are to prepare a minute of those orders which we can email to your Honour’s chambers, if that would assist.

HER HONOUR:   Yes, thank you.  Does anyone wish to be heard on the proposed change of date in order number 2 that the Solicitor‑General has referred to?  Mr Scheelings?

MR SCHEELINGS:   Not on that issue, your Honour, but while we are on the topic of those final orders, if we could just submit with respect to order 7 on the last – indeed, on the page of the orders where C15 is granted a right of reply because there is a contradictor, given what is transpired today, we have both a factual and the Solicitor‑General has stated he is a legal contradictor for our matter and so we are in the same camp as Mr Joyce, and so we would seek a right of reply as well; so, just addition of C14 to C15 in order 7.

HER HONOUR:   I am sorry, what were the terms of the ‑ ‑ ‑

MR SCHEELINGS:   It is order 7 in matter C15.

HER HONOUR:   Yes, so you want that extended to ‑ ‑ ‑

MR SCHEELINGS:   We just say and C14.

HER HONOUR:   Yes, I see, C14.

MR DONAGHUE:   Your Honour, can I just note that Senator Roberts is already filing his submissions after the Attorney‑General files in‑chief, so we will have said in our original submissions what we seek to say about the facts involving Senator Roberts and he can reply in his original – I am not quite sure what he is replying to.

HER HONOUR:   Mr Scheelings, it does not seem to be necessary.

MR SCHEELINGS:   Well, if it is not necessary for us it is not necessary for Mr Joyce.  It seems that the two parties are in the same camp in that the Solicitor‑General has stated today before the Court that he is a legal contradictor, he has a right to reply, and so we are merely seeking that the Court give our client a right of reply as Mr Joyce has as well ‑ ‑ ‑

HER HONOUR:   It does not seem to be necessary.

MR SCHEELINGS:   If it please the Court.

HER HONOUR:   With the one amendment to paragraph 2, I will make orders in terms of those proposed by the Attorney‑General in each of the matters.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   No other matters?  Yes, very well, the Court will now adjourn.

AT 11.00 AM THE MATTERS WERE ADJOURNED