Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce

[2017] HCATrans 171

[2017] HCATrans 171

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

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE AND SYDNEY

ON THURSDAY, 24 AUGUST 2017, AT 10.20 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, for the Attorney‑General of the Commonwealth in each of the five references.  (instructed by Australian Government Solicitor)

MR D.M.J. BENNETT, QC:   May it please the Court, in the first reference I appear with my learned friends, MR A.L. TOKLEY, SC and MR G.J.D. DEL VILLAR for Senator the Honourable Matthew Canavan.  (instructed by Stokes Moore)

MR B.E. WALTERS, QC:   May it please the Court, I appear with my learned friend, MR A.N.P. McBETH, for Mr Scott Ludlam and Ms Larissa Waters.  (instructed by Fitzgerald & Browne)

MR C.R.C. NEWLINDS, SC:   May it please the Court, I appear with my learned friend, MR R.J. SCHEELINGS, and we appear for Senator Roberts.  (instructed by Holman Webb Lawyers)

MR G.E.S. NG:   That is so, your Honour.  If the Court pleases, for Mr Joyce MP.  (instructed by Everingham Solomons Solicitors)

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friends, MR E.M. NEKVAPIL and MS S. ZELEZNIKOW, for Mr Windsor in the final reference.  (instructed by Fitzroy Legal Service)

HER HONOUR:   There are some preliminary matters before I ask the parties to outline their case and the evidence that they are proposing to put on.  Firstly, the Commonwealth Attorney‑General has submitted that all references should be heard together.  I am generally of that view.  Further, I consider that orders in the references concerning Mr Ludlam and Ms Waters should not be made until the determination of these references.  Mr Walters, do you wish to be heard further in relation to that matter?

MR WALTERS:   Not in respect of Ms Waters, but we understand from discussions with our learned friend the Solicitor‑General that there will not be any contest in respect of Mr Ludlam.  That being so, it may be possible to dispose of that reference more promptly.

HER HONOUR: I do not think it is advisable to make orders affecting or recognising disqualification whilst the issues concerning the application of section 44(i) are yet to be determined.

MR WALTERS:   We accept that that is the Court’s view and we have nothing further to say.

HER HONOUR:   Yes, thank you.

MR WALTERS:   If the Court pleases.

HER HONOUR:   Mr Solicitor, the other matter that the Commonwealth Attorney‑General’s view about having these heard together raises is the potential for further references which are real rather than unlikely.  Now, consistently with that approach and in the unusual circumstances of these cases, I would think that the timing of the hearing should probably accommodate those references coming in in September.

MR DONAGHUE:   Your Honour, in our submission, if the Court takes that view it is still possible to – albeit, it is fast, we accept – have those references, if they are made, when Parliament next sits heard together on the basis that the legal issues that will be raised will be substantially identical as we presently understand the position for both Senators Nash and Xenophon. 

It is likely, I am told, that Senator Nash will be represented by the same legal team as represents Mr Joyce, so that team would be already across all of the matters and could prepare on the assumption that any orders your Honour might make today would apply equally in that reference.  Similarly, in the event that Senator Xenophon sought – indeed, in the event that the Court determined that reference should be dealt with at the same time, if Senator Xenophon was to conduct himself on the footing that the same timetable applied to him then he could prepare the relevant affidavit evidence and we could prepare the relevant expert evidence in the timetable we propose.

So that is our submission in the event that the Court wishes to deal with them all.

HER HONOUR:   The Court, of course, cannot put in train the giving of notices until it receives the reference.  That puts that process in a rather difficult position.

MR DONAGHUE:   Yes.

HER HONOUR:   And the Court has to make determinations in relation to each of the submissions received.

MR DONAGHUE:   Your Honour, I accept that that is so.  Having said that, in the rather unusual circumstances of this case there is a very high level of public awareness already as to the issues, including as they pertain to the two Senators that I mentioned.  That may facilitate a shorter notice period than would otherwise be the case.

HER HONOUR:   Certainly it will be a shortened notice period in relation to the last reference from the House of Representatives on that basis and that could be taken into account.

MR DONAGHUE:   It may well be.  Certainly consistent with the orders that your Honour has just made, one would expect that the parties to the references would be the referred persons themselves and the Commonwealth Attorney‑General.  It is possible that there may be additional contradictors.  We accept the only one of the existing references where that is so, on the current references, is Mr Joyce, who is the only lower House Member of Parliament currently referred, the two possible additional references are both
Senators, so that may be another matter that perhaps suggests it is less likely that there is any individual person who would have an interest of a kind that would warrant them being injected.  I accept that one cannot rule out that possibility.  Unless that happens, in our submission, there would be no impediment to those references being dealt with at the same time.

HER HONOUR:   And the Court would not know whether or not there were any factual matters that need to be dealt with in relation to those two parties until it is too late.

MR DONAGHUE:   It would not know if the factual matters were raised by someone other than the referred parties ‑ ‑ ‑

HER HONOUR:   Yes, that is right.

MR DONAGHUE:   ‑ ‑‑ ‑ or the Attorney‑General.  That is so, your Honour, but consistently with the reasoning that I will shortly identify in relation to the other references, the position on all of these matters, perhaps with the possible exception of Senator Roberts, seems to be that the relevant facts are facts that are peculiarly within the knowledge of the referred person concerning their own citizenship history and knowledge.  There is unlikely to be any debate both about the facts or about the application of the relevant foreign law in connection with those facts. 

The procedure that we envisage is in many ways akin to a demurrer, where the real issue is on uncontroversial facts, including acknowledgement of dual citizenship either now or at some time in the past how does section 44(i) of the Constitution apply.

HER HONOUR: The acknowledgement question in relation to the first limb of section 44(i) might raise issues about knowledge, understanding ‑ ‑ ‑

MR DONAGHUE:   Yes, of the relevant person.

HER HONOUR:   Of the relevant person, and there is already one request for cross‑examination from Mr Windsor in relation to Mr Joyce, which I will deal with later.

MR DONAGHUE:   Or the request to reserve his position on that topic.

HER HONOUR:   Yes, that is correct.

MR DONAGHUE:   But, in our submission, in the event that Mr Joyce, to use that example, swears on affidavit to his knowledge of various matters, in the absence of some factual foundation to question that, in our submission, the relevant person the subject of the reference should be taken – their oath should be accepted.

While we accept that it is possible that the Court might be persuaded that there is a need to cross‑examine, even in Mr Joyce’s case, Mr Merkel on behalf of Mr Windsor is not saying that will be necessary; they are just wanting to reserve their position until they see the affidavit.

As your Honour will have seen, in our submissions we acknowledge the possibility that if a factual dispute does flare up, that may have ramifications for the achievability of the timetable that we propose.

HER HONOUR:   That is serious in relation to taking out parts of sittings, from the Court’s perspective.

MR DONAGHUE:   If, your Honour, it is critical that all of the matters be heard together, such that whichever one is the slowest needs to delay the entire group.  In our submission, there is sufficiently unlikely to be factual controversy on enough of the references so that the Court will have a wide enough array of facts to examine the operation of 44(i).  While it would be plainly preferable to have them all there together, if some cannot keep up because of factual disputes, in our submission that should not prevent the Court from determining the issue in a way that will then restore certainty as to the operation of the provision.

HER HONOUR:   Has the time estimate of two days altered, given the addition of other parties?

MR DONAGHUE:   Not for our part.  We saw that Mr Windsor suggested it might need to be three.  In my submission, the parties should be able to do it in two; we will need to agree a timetable and stick to it in dividing the oral argument.  There is not, as your Honour knows, a great deal of authority that will need to be canvassed in these areas.  There should not be, as we understand it, any particular complication to understanding facts that are in play.  The issues are important but sufficiently confined so that we think two days is enough.

HER HONOUR:   When we talk about urgency, of course the Court accepts that this matter is extremely important and it has a high level of urgency but there is urgency and urgency, even at that level.  There is the possibility, of course, that I could allocate hearing dates that are not in the calendar as yet.  So that should be borne in mind.  If the timetable does need to go out a little to make sure that we can accommodate the most - we can look at the weeks between sittings.

MR DONAGHUE:   Yes.  Your Honour, we accept that that is so.  We, of course, in making our submissions, did not want to presume that the Court would look at that option, and we worked to what we thought was the fastest achievable timetable which got us to the end of the second week of the September sittings.

I should say, your Honour, that as I understand the position the timetable we propose has the consent of Mr Joyce, Senator Canavan, Mr Windsor, Mr Ludlam and Ms Waters.  I am not aware of Senator Roberts’ position but everybody else can live with the timetable, if the Court can accommodate it.

HER HONOUR:   I will speak to each of the parties about that.  Mr Solicitor, you would also be aware that the Court would be concerned about whether or not there is a contradictor.

MR DONAGHUE:   Yes, your Honour.

HER HONOUR:   On one view, Mr Merkel may not be a contradictor for all.  Are you able to outline the Commonwealth Attorney‑General’s line of argument so that some assessment can be made of whether or not a contradictor is required?

MR DONAGHUE:   Yes.  Before I come to the argument, your Honour, we of course accept that there needs to be a contradictor.  If the Court were to accept, in relation to what I am about to say, that the argument is akin to a demurrer then our primary submission is that because Mr Merkel, on behalf of Mr Windsor, will clearly be on the other side of the argument the Commonwealth will be making about the interpretation of 44(i), there will be a joinder of issue on the interpretation of that section so that that may be sufficient, even though he is acting only in one of the references. 

But in the event that the Court does not think that that is sufficient, I do have instructions that the Commonwealth is prepared to retain – as has happened in other cases - senior counsel to act as a contradictor across the other references.  We have located appropriate senior counsel who have confirmed that they are available on the timetable, so I can give your Honour details about that if you want.  We accept that if that is necessary for there to be a proper joinder at issue then we will facilitate that.

HER HONOUR:   I take it from what you are saying that the Commonwealth does not consider that it will necessarily be in the position of a contradictor to the persons the subject of the references.

MR DONAGHUE:   Your Honour, the position there is across the references, in a way that I will explain.  It is just that they will be on some and not on others but that on those where we are not, Mr Merkel and the Commonwealth are likely to be at odds, so there is likely to be a joinder across all of the references, with the possible exception of Ms Waters.

HER HONOUR:   It is probably best if I then hear from each of the parties who are the subject of the references and then come back to the position of the Commonwealth Attorney‑General.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Mr Bennett.

MR BENNETT:   If your Honour pleases.  Your Honour, we support the fact that this is clearly a matter of great urgency and we support the Commonwealth’s timetable to the extent that it can be achieved.  The Commonwealth has, however, underestimated the extent and complexity of our case.  With your Honour’s permission, may I spend two or three minutes telling your Honour what our case will involve.

HER HONOUR:   Yes, I would like to have some idea of the shape and the nature of the case, particularly at a factual level, so I know what the Court is ‑ ‑ ‑

MR BENNETT:   I have a summary of the issues which I can hand to your Honour.  I had proposed to briefly take your Honour through it.  I hand up two copies.  We raise three issues.  The first issue arises out of the question whether, for the purposes of section 44, my client is an Italian citizen.  Your Honour, he was born in Southport, his mother was born in Ayr and his father was born in Toowoomba.  So both he and his parents were born in Queensland.  His father has no Italian heritage. 

Now, his maternal grandparents were born in Italy, migrated to Australia and both became naturalised Australian citizens.  Prior to 1983, Italian citizenship under the jus sanguinis, or citizenship by descent, passed through the male line only but for an unlimited number of generations, so that when Senator Canavan was born in 1980, as his father had no Italian heritage, he was not, under Italian law, an Italian citizen.

When he was two years old, in 1983, a case was heard in the Italian Constitutional Court which challenged the legislation as being discriminatory and unconstitutional.  The court upheld the challenge and as a result the legislation was amended so that citizenship now passed through the male or female lines, again for an unlimited number of generations, and that law was made retrospective to persons born after 1948; your Honour will recall that Senator Canavan was born in 1980.

Now, for technical reasons that I will not take your Honour through today, there is a doubt under Italian constitutional law as to the validity of that retrospectivity.  This Court will not, of course, decide a question of the validity of Italian law under the Italian constitution.

HER HONOUR:   Has this expert opinion evidence been obtained yet?

MR BENNETT:   We have expert opinion to the effect that it is invalid.  What we do say is that the fact that the provision is of doubtful constitutionality is a relevant factor in determining for the purposes of section 44 whether one applies Italian law.  Our primary submission in the first of the three matters will be this.  If your Honour recalls in Sykes v Cleary there is a reference in the judgment of Justice Brennan to a country conferring citizenship involuntarily on foreign citizens who have only a slender connection with that country - our primary submission is that that is exactly this case - a man born in Queensland, with two Queensland parents, one parent having no connection with Italy and the other having grandparents who became naturalised we would say is the slenderest of connections.

HER HONOUR:   Yes.  I think you can afford to summarise a little more, Mr Bennett.  I do not need your full submissions at this point.

MR BENNETT:   If your Honour pleases.  That would be our first submission and it is, a fortiori, where the foreign law is of dubious validity.  The second issue concerns the registration document submitted by Senator Canavan’s mother in 2005.  There has been a lot of talk in the press about that document.

HER HONOUR:   Yes, we do not need to go into that.  Your issue is going to be that it is irrelevant.

MR BENNETT:   Yes.  Your Honour, does your Honour wish to hear the full reasons why it is so relevant?

HER HONOUR:   No.  I can read them.  Thank you.

MR BENNETT:   If your Honour pleases.

HER HONOUR:   I see that there is a third issue.

MR BENNETT:   The third issue, your Honour, is that foreign citizenship by descent should be ignored for the purposes of section 44.  In support of that we will be putting evidence, as constitutional facts, of the citizenship laws of a number of countries from which there has been substantial migration to Australia – countries like Ireland, Greece, Lebanon, Vietnam and so on.  We will also be putting on evidence from the Bureau of Statistics of the statistical breakdown of the Australian population by reference to those particular citizenship laws. 

We believe that we will be able to demonstrate that if one applies section 44 to citizenship by descent a very high proportion of the Australian population, possibly of the order of 50 per cent, would be disqualified from being senators or Members of Parliament.  We will then submit that that result is so ridiculous that section 44 should be construed so as to exclude citizenship by descent alone.

HER HONOUR:   Mr Bennett, how long will the evidence take to be prepared?  When will it be available?

MR BENNETT:   Your Honour, we will do it as quickly as we can, and we are hoping for some assistance from our learned friends for the Commonwealth.  It is very hard to estimate but it will certainly take a little time to collect.

HER HONOUR:   Are you saying that the timetable really cannot accommodate this – the timetable proposed?

MR BENNETT:   We would try to do our best.

HER HONOUR:   But I could not be confident.

MR BENNETT:   That is really all I can say about that.  There is a lot of work to be done but we will do our best, as I say, hopefully with some help from our friends on my left.

Now, of course that argument about citizenship by descent would benefit a number of the other persons referred or to be referred and could not be confined to us.  I do not know how many would adopt it but one imagines those affected by it would.

The question of a contradictor is an important one and it involves a subsidiary question ‑ ‑ ‑

HER HONOUR:   Whether just fact or whether law or fact and law.

MR BENNETT:   Yes.

HER HONOUR:   Yes, I have thought about that, but I was waiting to hear about the content and shape of the factual case to see whether or not a contradictor would really be warranted.  If one has regard to the evidence of the persons who are the subject of the reference, as the Solicitor‑General has pointed out, their state of mind does not lend itself, really, to a contradiction, one would think.  There is a possibility, of course, but one would think not.

MR BENNETT:   We agree with that, your Honour.

HER HONOUR:   But the evidence that you are proposing to put forward would be mostly matters of public record so we are not really talking about a contradictor there either.

MR BENNETT:   There may be questions of interpretation and questions of statistical analysis and so on.  There is the question as to whether the contradictor would be contradicting on those aspects.

HER HONOUR:   You mean the inferences to be drawn from the evidence rather than challenging the factual basis of the evidence itself?

MR BENNETT:   Yes.  The raw statistics may not take us the whole way.  One may have to draw inferences and they may be the subject of contest.

HER HONOUR:   And you may be required to have an expert, obviously, interpret the statistics.

MR BENNETT:   Yes.  Hopefully we would not be required to have experts on every one of the legal systems that we are referring to.  Hopefully we could simply put something in writing, but if we do, we do.  We will certainly need experts in Italian law, and such experts have been retained.

HER HONOUR:   Do you have any idea at this point about how much time you are talking about needing realistically to put this case together?

MR BENNETT:   We think the hearing would probably take three days plus.

HER HONOUR:   It is the preparation – your preparation I am worried about.  How long will it take you to get your evidence together?

MR BENNETT:   If we have to do it within the Commonwealth’s timetable, we will find a way to do it.  It will, of course, be difficult but a lot depends on ‑ ‑ ‑

HER HONOUR:   That does not fill me with great confidence.

MR BENNETT:   No, your Honour.  A lot depends ‑ ‑ ‑

HER HONOUR:   I interpret that to mean “we will try the best we can”.

MR BENNETT:   A lot depends on how much help we can get from the Commonwealth on collecting and collating foreign laws and on getting the statistics from the Bureau of Statistics and analysing the material.

HER HONOUR:   Yes.  Thank you, Mr Bennett. 

MR BENNETT:   If the Court pleases.

HER HONOUR:   Mr Walters, will you be putting on any evidence, given the direction that I propose to take, that is, to have these matters heard with the other references?

MR WALTERS:   If the Court requires, we would be content to provide affidavits from each of the referred persons but not otherwise.

HER HONOUR:   I take the view that it is a matter for the parties.

MR WALTERS:   Yes. 

HER HONOUR:   They have made concessions, as I understand it, in affidavits about their citizenship, at least as viewed through the lens of a foreign country.

MR WALTERS:   Yes.

HER HONOUR:   Or another country.

MR WALTERS:   Yes.

HER HONOUR:   It is a question then, I think, for the persons the subject of references whether or not they wish to put on other evidence to bring themselves within other arguments that might or might not be available. 

MR WALTERS: In respect of that, it could certainly be done within the timetable proposed by the Attorney‑General. Of course, in their case they agree with the timetable proposed by the Attorney‑General if it can be accommodated. They, of course, have resigned their places in the Senate so that the vacancy exists to be filled either as a casual vacancy or pursuant to section 44(i). There is an additional element of urgency in respect of their matters.

HER HONOUR:   Yes, thank you.

MR WALTERS:   If the Court pleases.

HER HONOUR:   Mr Newlinds.

MR NEWLINDS:   If your Honour pleases, there has obviously been a lot of discussion between the Attorney‑General and the other parties, but for some reason we seem to have been overlooked.  Can I say this at the start:  whilst we would do everything we could to get ready for a hearing in mid‑September, I personally do not think that that is realistic.  I cannot speak for the other parties but from our perspective that is an extremely unlikely objective.  Being realistic and accepting the urgency that is obvious, I would have thought about a month later, in mid to late October is doable.  Can I explain why from the perspective of my client?

Firstly, unlike others, he has not made, and at the moment I do not make, any concession that he is a citizen of any other country other than Australia.  His position is he was born in India in 1955.  He had an Australian mother and, he thinks, a Welsh father.  He did not at any time think he was a British citizen but he was aware that that was a possibility because of his father’s place of birth.  Prior to his nomination for the election he made contact with the Home Office of the United Kingdom and asked them if he was a citizen.  He did not receive a response.  He subsequently wrote by email another letter to the Home Office, said that they had not answered his letter and said that, for the avoidance of doubt, he renounced any foreign citizenship that he might have.

The election then came and went.  At a time which I have not quite got my head around in the chronology, the Home Office sent him a form to fill in.  He filled that in and sent it back.  At a later time he received correspondence from the Home Office, saying that they accepted his renunciation – unclear whether they were accepting the renunciation in the form or the earlier email.

So we have a factual case to put forward at a number of levels.  The first is at which particular dates Senator Roberts did particular things.  The second is what is the effect, under United Kingdom law, of the things he did?  The third question will be, picking up on what the Court said in Sykes v Cleary, were those steps reasonable steps taken by him, which is a question of ultimate fact which, of course, is quite nuanced and may involve or thinking that perhaps there should be some testing of what he says.  I am not encouraging that but it really does feed into the question of whether there needs to be a contradictor.

My thinking at the moment is that our case will be based on facts along those lines.  We are seeing him tomorrow and we will be able to put on an affidavit from Senator Roberts by the time suggested, 1 September, but how, and who, people will agree on those facts is an open question.  Of course we would very much like people just to agree with whatever facts we serve up, but that does not seem to be a proper way to proceed.

Can I just ask if your Honour got the timetable that was circulated by the Solicitor‑General at about 9.30 this morning?  Can I just work through that and explain ‑ ‑ ‑

HER HONOUR:   No, I have not received it.

MR DONAGHUE:   It is the same as in our submissions, your Honour.

HER HONOUR:   I am told it is the same as in the submissions, and I have that. 

MR NEWLINDS:   Thank you.  Firstly, as I say, we can put on an affidavit along the lines of paragraph 4, and I think we can do that by 1 September.  If I can then jump down to the question of expert evidence, we keep reading in the newspaper and hearing people say in Parliament, and we read our learned friends’ submissions that they have already obtained from a United Kingdom expert on questions of law an advice presumably in relation to Senator Nash or Mr Joyce or both.  We would like to see that advice, if we could, for a number of reasons.

One, it will give us an understanding as to what evidence might be tendered against us, if you like; secondly, to make a decision as to whether we want to retain that same expert; and, third, to decide whether we want to ask that expert or some other expert our own questions.  Of course, as I have said, the facts that we intend to put forward will raise a different question of UK law, that is, whether what we did worked insofar as renunciation is concerned, and at what point in time it had that effect. 

So we would very much want to be involved in briefing the expert, if we are going to have a single expert.  Of course, if the expert seems to acknowledge any doubt in the matters then we may want to get our own expert.  So just looking at the proposed timetable, it was only proposed that we get the expert evidence that the Attorney‑General proposes to rely on by 1 September.

That will not work because the Attorney‑General will not know our factual position until 1 September as well.  In other words, the expert will not have been asked by anyone to grapple with the factual situation that we put up.  So straight away we think that we need to be involved in briefing the expert.  We need to see what opinions he has given to date, to see if he is acceptable to us.  And he needs to be briefed after 1 September, as far as we are concerned.

As far as 6 is concerned, we do not think it is appropriate that we should have to make submissions as to why we are entitled to put on any evidence we want to.  If we want to put on evidence of an expert or lay kind, we would seek to do that, but if it is of an expert kind it is not going to happen by 4 September, being realistic.

Then there is the question of agreement as to facts.  I cannot speak for others; I am not even sure who is going to be in charge of agreeing or not agreeing our facts.  I do think it is unlikely that there will be any actual factual issues but, by the same token, I do think that the sort of facts we are putting forward, combined with the sort of legal questions that the Court will have to answer, does involve questions of degree and nuance.  It may be that the Court would want someone to ask some questions of some of my witnesses ‑ that is really a matter for the Court and others ‑ and whether or not the Solicitor‑General or the Attorney‑General feel that they are in a proper position to do that.

Having said all that, I do not think my evidence would really blow out the estimated hearing time.  I cannot speak for others but I would have thought, on the basis ‑ ‑ ‑

HER HONOUR:   What is your estimate of the hearing time?

MR NEWLINDS:   I would have said two days, subject to listening to what Mr Bennett just said, but three days would be safe.

HER HONOUR:   Yes.

MR NEWLINDS:   I would have thought two days.  So what I am submitting, your Honour – this is only preliminary – I do not think 13 and 14 September is realistic.  I think if the Court reserved those dates and if that involved removing other cases from the list there would be a real danger that the Court would end up doing nothing on those days.

HER HONOUR:   I am sure there are other things to occupy us.

MR NEWLINDS:   I am sure there is, your Honour.  I am sure the Court would not be dealing with the business of hearing cases on those days.  I think a month later, the second half of October, from our perspective we will do everything we can and we will be able to be ready by then, so long as we receive some cooperation from the Solicitor‑General, starting off with:  can we see the expert evidence they have got to date?

HER HONOUR:   Mr Newlinds, that is pushing out the time rather a lot, on the basis of evidence that you do not know how long it is going to take you to gather.

MR NEWLINDS:   That is true.  That is right, your Honour.

HER HONOUR:   Do you think you could be ready for early October?

MR NEWLINDS:   Yes, I do.  The expert thing is what is worrying me.  If we can start that process with some cooperation very quickly, I would think early October is doable.

HER HONOUR:   If we were looking at dates in early October it would seem to be advisable to have the matter brought back before me for directions after the factual evidence and the expert evidence is obtained or at least at around that time so we could what is happening.

MR NEWLINDS:   I think that would be a very good idea, just to make sure it is on track, but for our part if your Honour wanted to set it down on a preliminary basis on some dates that would seem to be a sensible thing to do.  It would at least keep everyone on target.

HER HONOUR:   Yes.

MR NEWLINDS:   That is what I want to say, your Honour.  Thank you.

HER HONOUR:   Yes, thank you.  Mr Ng.

MR NG:   Your Honour has heard from the Solicitor‑General that we embrace fully the timetable that he proposes.  Your Honour will have seen from his submissions that reference is made to the opinion of a Mr Goddard of Queen’s Counsel of the New Zealand Bar, who expresses a conclusion that Mr Joyce was a citizen of New Zealand; that citizenship was renounced on 12 August 2017.  So, the matter is one that falls within a narrow compass, given that my client does not propose to contest Mr Goddard’s conclusions.

The question really is, in light of Mr Joyce’s lack of knowledge or apprehension as to any issue of dual citizenship, whether he nonetheless passes the Sykes v Cleary bar, despite having not done ‑ not taken steps to renounce his New Zealand citizenship prior to his most recent election to the House of Representatives.  So, in that regard, given the narrowness of the question that falls for determination in relation to this reference, it is perhaps the reference most apt for progressing in accordance with the timetable proposed by the Solicitor‑General. 

Having said that, there is of course prudence in the suggestion that all these references travel together, to the extent that it is thought more satisfactory that the hearing of the matter be deferred until October; that is something of course that we would not cavil with.  Now, can I reserve my position in relation to anything that might fall from Mr Merkel, because your Honour will have seen written submissions from him and it may be necessary for me to address anything that falls from him during the course of this morning.

HER HONOUR:   Will you be putting evidence on, Mr Ng?

MR NG:   Yes, yes.  The evidence will address the topics mooted by the Solicitor‑General.  There will be an affidavit from Mr Joyce.  I will have to consider whether or not an affidavit from Mr Joyce’s father is necessary but it may not be.  So, yes there will be evidence but it is evidence that goes largely to uncontroversial factual matters and Mr Joyce’s state of mind.

HER HONOUR:   Yes, I see.  Yes, thank you, Mr Ng.  Mr Merkel, I might hear from you before I return to the Solicitor‑General.

MR MERKEL:   If your Honour pleases.  Your Honour, as your Honour will appreciate from the application filed by Mr Windsor, we have all only come into the matter over the last two or three days and therefore have been limited ‑ ‑ ‑

HER HONOUR:   That may be as it may, Mr Merkel, but your client had notice as other people did of this ‑ ‑ ‑

MR MERKEL:   No, I appreciate ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ and I think his application was received at 9.45, 15 minutes before the deadline.

MR MERKEL:   Sorry, your Honour, the reason I mention it is that in the time available, we say that the issues that we see as arising, going to questions of evidence, your Honour, are firstly, that being a citizen is a requirement but not be a citizen of a foreign power is a requirement of section 44(i) and that as an objective fact, if established, is disqualifying. But secondly, your Honour, if citizenship does involve a concept of international law in terms of section 44(i), we would be looking to carry out research and demonstrate that under recognised norms of international law, which one would find could arise on a proper construction of section 44(i), issues of citizenship by birth or descent are standard norms and therefore any person who falls into that category as Mr Joyce falls into that as a citizen by descent, is on notice that inquiries should be made as to whether they are a citizen of the country where they were born or by which they may have become a citizen by descent.

That raises factual issues about whether or not Mr Joyce was or should be deemed to be on notice and, if so, what steps he did or did not take to ascertain whether he was a citizen of a foreign power.  The third area of investigation, your Honour, arises from the forms that are signed by a candidate for office and we have annexed to our submission today, your Honour, the form for the 2016 election which we would expect to be substantially the same in earlier elections, where the applicant or the candidate nominating is required to certify in terms of section 44 and there are notices about getting advice if in doubt and references to the Australian Electoral Commission handbook and nomination guide.

HER HONOUR:   What is the relevance of that?

MR MERKEL:   We would say, your Honour, that a person signing the form is on notice that an inquiry is being made as to whether they are or are not eligible under section 44(i) and we would say reasonable steps for a person who in fact is a citizen by birth or descent would embrace making inquiries. One of the inquiries suggested is getting a legal opinion; that is in the nomination form itself. So, this is not just a document at large. This is the very document which the candidate is required to sign.

The last area, your Honour, we would say that we understand that there is a practice amongst political parties to check and verify eligibility before a candidate is nominated and we have sought to have Mr Joyce address that question as well, so that when his affidavit is filed, if it is filed in accordance with our directions, the directions we seek, as well as those of the Attorney‑General, then we would expect or hope that there would be no factual issues arising but if there were, we have asked for the reservation of liberty to cross‑examination but to seek leave to cross‑examine and we have set out the timeframe in which that should occur and the obligation of us to identify the topics if that were to occur.

But until, at the moment, your Honour, we have not seen the expert New Zealand opinion of the lawyer that the Commonwealth relies upon.  We make assumptions about what it says but it may itself raise questions of fact and we would say that we would need to also have a reservation if the question arises to file any affidavit we would wish to file if there was some issue about New Zealand laws of question of fact, but we have no reason to expect that there will be, but we have not seen the advice.  So, they are the areas that we would anticipate would arise in the reference in which we are appearing in a party, your Honour.

HER HONOUR:  Mr Merkel, I think you may have gathered from what I said earlier, that so far as the bare facts in relation to whether or not a person is regarded by the laws of another country as a citizen, are put on in relation to that so that the Court is apprised of that situation. I do not propose to order that any party be required to address any particular facts. I consider it a matter for the party to determine what exculpatory or other facts may be relevant to their particular case but I certainly do not intend to require people, in effect, to be interrogated, particularly given the provisions of section 46 of the Constitution. If, on the other hand, a party such as Mr Joyce, wishes to address the facts that you have outlined which may be relevant and which may end up as issues that is a matter for the party and their legal advisers.

MR MERKEL:   Your Honour, we appreciate that and we had anticipated that your Honour may take that view but we regard it as appropriate to at least put Mr Joyce on notice of the factual issues that we at this stage see as arising but we accept, of course, what your Honour says.

HER HONOUR:   Yes, I understand that.  What is your view of the timetable given all that you say you have to do?

MR MERKEL:   Your Honour, we have agreed to the timetable on the basis that we are not aware of factors that would disable us from complying with it but we cannot say any more than we have.  We have a certain apprehension in view of the issues raised by some of the other persons referred about whether matters in their case may affect how we conduct our ‑ ‑ ‑

HER HONOUR:   Well, Mr Bennett and Mr Newlinds, yes.

MR MERKEL:   We just have a concern that some of the matters they raise will affect how we may wish to put our case but until we know how that pans out, we cannot really comment, your Honour.

HER HONOUR:   Yes.  Yes, thank you, Mr Merkel.

MR MERKEL:   But we do apprehend there may be ‑ and I think we have mentioned this in our submission ‑ a need for a third day, particularly given what we have heard this morning, your Honour.

HER HONOUR:   Yes, thank you, Mr Merkel.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honour, might I spend a moment or two outlining in very summary terms the nature of the argument that the Commonwealth will be advancing so as to explain why we differentiate between the position of some of the different people the subject of the reference.  The starting point, in our submission, is that this Court has already held in Sykes v Cleary that section 44(i) of the Constitution does not give unqualified effect to the common law rule that whether a person is a citizen of a foreign power depends on the law of the foreign country.

In our submission, the entire Court held in Sykes that 44(i) should be construed, having regard to its purpose, which required some narrowing of the extent to which the Constitution would recognise the effect of foreign law. The purpose of the provision being identified in that case, in various ways but generally by reference to the need to ensure that Members of Parliament do not have split allegiance and are not subject to improper interference from a foreign power.

From that starting point, the Court, in our submission, recognised that foreign law is only to be applied in identifying foreign citizens for the purpose of 44(i), in circumstances where the application of foreign law will fulfil that identified purpose and the point was, we respectfully submit, well captured by Justice Brennan, when his Honour said in terms:

If recognition of status, rights or privileges under foreign law would extend the operation of s.44(i) . . . to cases which it was not intended to cover, that section should be construed as requiring recognition of foreign law only in those situations where recognition fulfils the purpose ‑

So, from that framework as the starting point, Justice Deane addressed himself to the hypothetical situation in that case of an Australian born citizen and said that such a person would not be disqualified by 44(i) unless they had taken some affirmative act that asserted, accepted or acquiesced in the relationship with a foreign power. 

Our submission will be that, consistently with all of those observations, foreign law is not to be applied in identifying where a person is a citizen of a foreign power where the person does not subjectively know that they are now or have at any time been a citizen of a foreign state, and on that approach we submit that there is a clear demarcation line, where a person does know that they are or have been a citizen of a foreign power, then that is the Sykes v Cleary situation.  That was the position of both of the people who were considered in that case and the Court has held that in that situation the person needs to take reasonable steps to renounce their foreign citizenship and so the outcome of that inquiry will determine the outcome of the reference.

Where, by contrast, a person was born as an Australian citizen and did not know that they are, or ever have been a foreign citizen then, unless they had sought, accepted, asserted or acquiesced in the rights as a foreign citizen then they are not captured by 44(i).  An alternative way of putting that is that in that second situation where the person has no knowledge and has never had knowledge, the reasonable steps analysis which on the Sykes reasoning takes into account all of the relevant circumstances, includes critically the circumstance that when judging what reasonable steps are to be taken if a person does not know that they have a connection with a foreign country, then the content of that inquiry reduces essentially to nothing.

So, within that general framework, if one then comes to the five references, the Attorney’s submission in relation to Senator Canavan will be that he was not disqualified by section 44(i) and so there is not likely to be contradiction between the Attorney and Senator Canavan on that point. The essential reason for that conclusion, without going into the detail, is that both at the time that Senator Canavan was born, but also critically at the time that his mother was born, neither of them were Italian citizens.

So, in fact, Senator Canavan’s mother lived for the first 28 years of her life in Australia as an Australian citizen and only an Australian citizen.  His father was an Australian citizen and only an Australian citizen.  When he was born, he was an Australian citizen and only an Australian citizen, and then a couple of years after he was born by reason of a retrospective effect of a constitutional ruling in a foreign country, his mother retrospectively became an Italian citizen and because of that he respectively became an Italian citizen and foreign law conferred on him that status without him doing anything.

Now, in our submission, that is the very kind of scenario that the Court’s remarks in Sykes were directed to ensuring that 44(i) did not capture.  So, in our submission, notwithstanding the public comment around the whole registration exercise, that is not relevant to the status that we submit that the Senator has and that possible area of factual controversy evaporates.  So the ultimate issue should be the demurrer‑type issue, if the Senator’s evidence is accepted that he did not know about any of that foreign legal exercise that I just summarised, how does 44(i) operate.

HER HONOUR:   I take it you are saying that the contradictor ought only to be on the legal questions.

MR DONAGHUE:   On the law, indeed, and that that question will be virtually identical to the question that arises in Mr Joyce’s reference where the same fact pattern will lead by a different legal path, will lead to the conclusion that because Mr Joyce did not know that he was a citizen of New Zealand because of the operation of foreign law, the same consequence should follow.  Now, if Mr Merkel, on Mr Windsor’s behalf, is contending against that consequence there, it is difficult, we say, to see how the argument is any different, but as I say, if the Court needs a separate contradictor, we will arrange one.

In Mr Joyce’s case, the path was slightly different.  His father was born in New Zealand at a time before there was any concept of New Zealand citizenship, so that when he was born in 1928, I think – 1924 ‑ he was a British subject.  He moved to Australia, still as a British subject but a couple of years after that move, the concept of New Zealand citizenship emerged, was created for the first time with effect from 1949 and it was retrospectively conferred on Mr Joyce’s father, notwithstanding that he was no longer resident in New Zealand and then stayed with him and was passed by descent to Mr Joyce without his knowledge.  So, on the legal approach that I formulated, the logic of the argument again is that Mr Joyce is not disqualified.

Ms Waters may well be in the same situation so that because it appears ‑ and obviously we will not be able to reach a final view on this until any evidence that she may choose to file is available ‑ but it appears that she never knew that she was a Canadian citizen, having been born in Canada to two Australian parents who had no right of permanent residency in Canada.  She was brought here as a young child, never returned to Canada, did not have the knowledge, and so again while the fact pattern is slightly different, the legal argument, we submit, is likely to generate the same result as in the case of Senator Canavan and Mr Joyce.

Mr Ludlam and Senator Roberts are different because, in our submission, in both of their cases it is reasonably clear that whatever the position be now, they must have known in the past that they were foreign citizens.  In Mr Ludlam’s case, he was born in New Zealand as a New Zealand citizen.  He did not apply to become naturalised as an Australian citizen until he was 19 years old.  His case is, we submit, almost impossible to distinguish from one of the two fact situations dealt with in Sykes v Cleary.  So, unless Sykes is challenged and there is some departure from it, we would submit that he is disqualified and that is consistent with his concession to that effect.  So, there may be no contradictor in that matter either; if Mr Ludlam’s position remains that he is disqualified, that will certainly be our position as well, on that reference.

HER HONOUR:   But you would be contradicting Mr Roberts, Senator Roberts?

MR DONAGHUE:   Well, Mr Roberts is ‑ it depends exactly what the evidence ends up being in Senator Roberts’ case.  So he was born, as Mr Newlinds said, in India in 1955 and there is in the papers transmitted to this Court by the Senate a document that is an application for Australian citizenship made by Mr Roberts when he was 19 years old which says that he was a citizen of the United Kingdom and colonies at the time.  Now, if that fact is correct, then he falls into the category of a person who knew at one point in the time that he was a foreign citizen and, therefore, the answer to the question, or to the reference, is a Sykes v Cleary analysis; did he take all reasonable steps.

Now, that is so far, I think, consistent ‑ well, I think Mr Newlinds said there was no concession as to foreign citizenship, but at least part of his case is the reasonable steps case.  The position at the moment is we simply do not know whether we are a contradictor on that because we do not know what steps he took and when he took them in order to renounce the foreign citizenship.

HER HONOUR:   Well, I think it is clear enough that the contradictor will be required at the moment only on the question of law but we could review the question of fact at a further directions hearing.

MR DONAGHUE:   Indeed, and it may ‑ we would expect that the position will be that there is a form that had to be submitted to the UK government in order to revoke citizenship and that that form at some point was submitted which resulted in the acceptance of the renunciation to which Mr Newlinds refers.  The critical factual question is likely to be resolved on the obtaining of that document and if that document is dated after the nomination period, then we are likely to be in a contradictor position with Senator Roberts.  If not, then we will not be, so I accept what your Honour says.

In relation to Senator Roberts, with respect, it is not at all clear to us why it is said that significant further time is required.  The first affidavit, I think it was accepted, could be done by 1 September, and so the question that might require further time is the United Kingdom expert but, with respect, we see some difficulty in understanding why it would be hard to get an opinion on a relatively straightforward question of British statute law as to what is necessary to renounce citizenship and whether on a fairly narrow factual base that has or has not happened. 

So, in our submission, nothing that your Honour has heard should persuade the Court that it is unachievable to move very quickly.  Having said that, I accept what your Honour has said about the possibility of building in a little more time.  The written document to which Mr Newlinds referred was a minute of order that we prepared that reflected the orders that we had proposed in our written submission.  Can I hand that up to your Honour.  There are two orders.  The timetable is the same.  There were two additional orders that we added into the document.

HER HONOUR:   Can I raise another matter with you.

MR DONAGHUE:   Of course, your Honour.

HER HONOUR:   Will it be necessary to put on further evidence in relation to the relief that might be granted if any of the persons the subjects of references are found to be disqualified, because the orders that would be made would themselves be a matter of some urgency, would they not, in that event.

MR DONAGHUE:   Yes, well that is so, and particularly in – well, in the context of the four Senators, the Court would be in fairly familiar territory in relation to Re Culleton and Re Day and, in our submission, it would be clear that a special count should be ordered.  As it happens, three of those Senators are from Queensland, one from Western Australia; the one from Western Australia is Mr Ludlam and so it may be that if the Court were to reach a clear view in relation to him, that could be separately moved quickly and the WA Senate position could be resolved.

HER HONOUR:   But the other factual difference here is that some Senators and certainly a member of the House of Representatives have been there for some time.  We are not in a circumstance where we are close to an election having been held.

MR DONAGHUE:   No, we are not.

HER HONOUR:   So, that needs to be given some thought, I would think.

MR DONAGHUE:   Indeed, and, your Honour, in the event ‑ contrary of course to our submissions, but in the event that the Court were to find that Mr Joyce is disqualified on prevailing authority, the remedy is a by election, it is not a recount.  So some time would be required to deal with that, and given where we are in the year and the dates that we are talking about and the time that that takes, there is a potential complication intersecting with Christmas and the New Year period in that regard which is part of the reason, in our submission, that the earliest date the Court can manage would be desirable, looking ahead, in the event that the Court were to reach that view.

The minute I handed to your Honour is, as I say, the same as the orders in our submissions, save that it adds a new order 1, which reflects an order that was made in the Re Culleton and Re Day references, dealing with the material transmitted from the Parliament, and it also adds an order 13 which is about cross‑references to material between matters.  That seemed to be desirable if the matters are all to be heard together, just to make sure that anyone can refer to anything.

HER HONOUR:   Of course, any directions in relation to submissions would need to ‑ I have the reference to the rules and the requirements of the rules.

MR DONAGHUE:   Yes, we had proposed some modification to the word limits in circumstances where our proposal is that we would file submissions across all five references but that everybody else would be confined to their own matter.

HER HONOUR:   Well, the critical question is the timing of the hearing.

MR DONAGHUE:   Yes.

HER HONOUR:   There are three factors.  There are two other references, the facts of which the Court is not seized of, and the Commonwealth Attorney‑General accepts that as a general principle all references should be heard at the same time.  That tends to suggest that we should wait for those references.  Then there are two parties who are concerned that there is insufficient time to put on the evidence and, of course, they are parties who are facing possible disqualification.  So then, Mr Solicitor, I need to ask you this:  if we made the hearing either in the week commencing 2 or 9 October, would there seriously be a difficulty of governance?

MR DONAGHUE:   The 2nd or the 9th did your Honour say?

HER HONOUR:   Yes, of October.

MR DONAGHUE:   Well, your Honour, all I can say ‑ ‑ ‑

HER HONOUR:   The 9th is of course the first week of the calendared sitting ‑ ‑ ‑

MR DONAGHUE:   Is 1 October, yes.

HER HONOUR:   ‑ ‑ ‑ but we could make special allowance in the week before but the question then is, is there much in the difference of time there.

MR DONAGHUE:   Well, in my submission, it would be desirable if we are looking at October, to look as early as possible, and therefore to look at the 2nd, particularly given that our friends are saying three days might be required.

HER HONOUR:   I think three days should be permitted.  The other possibility, depending particularly on Mr Newlinds, is that we might be able to accommodate it in the week before but we would not be able to sit in

Canberra.  Logistically, Canberra obviously has, with 16 counsel and 18 solicitors ‑ ‑ ‑

MR DONAGHUE:   Some advantages, yes.

HER HONOUR:   ‑ ‑ ‑ some advantages.

MR DONAGHUE:   Yes, I accept that, your Honour.  We should say, it may not have been clear in relation to what I said in relation to Senator Roberts, that in our submission, his case is quite different to the others because if that case turns out to be just about reasonable steps taken, it is an application of Sykes v Cleary.  It is not raising the question of ‑ and I say this on the basis of the application form that we have seen in the material that came from the Senate ‑ but if it does not raise a question about whether the person was ever aware that they were a foreign citizen, it does not raise the issue not covered in our submission by Sykes.

So, if it turned out that it was impossible to accommodate the Roberts matter but that all the others would go forward, our submission is that that is what should happen because the others have a unity to them in terms of the undecided legal point that that matter does not have.  Having said that, in our submission, there is no reason Roberts cannot be ready to be done with the others but, if it cannot be, we would submit that it should be broken off.  So, in light of ‑ I think your Honour said, if it were before 2 October, it could not be in Canberra.  Did I hear correctly?

HER HONOUR:   That is correct.

MR DONAGHUE:   Well, my instructions, your Honour, are to ask for the matter to be heard as quickly as possible, wherever it can be.

HER HONOUR:   I understand that, but really what I am asking you is, if it were to be made in very late September or early October, can you point to any real practical difficulty in terms of governance.

MR DONAGHUE:   No, I cannot.

HER HONOUR:   Thank you.  Mr Newlinds.

MR NEWLINDS:   Yes, your Honour.

HER HONOUR:   Is there any possibility that you could be prepared by the last week in September?

MR NEWLINDS:   It is possible but I would not put it any higher than that.

HER HONOUR:   You are not comfortable ‑ ‑ ‑

MR NEWLINDS:   I would answer that question, yes, but that of course means it is certainly possible that it will not be.  I prefer the 9th because I think that that would be safe.  I have not heard the Solicitor‑General yet say that we are going to see his expert opinion on UK law prior to 4 September.  It would really expedite things if we could see that sooner but then that will have the problem that it will not grapple with our factual situation, so there is the problem.  If we are talking a week or two, your Honour, may I respectfully suggest that the cautious approach might be the safer.

Can I also say this in relation to what just fell from the Solicitor; we do not think it would be fair to have another case immediately before us debating what the law on this topic is and for then us to turn up.  I do not have a view at the moment but it ‑ ‑ ‑

HER HONOUR:   I do not propose to hive off your client’s reference.

MR NEWLINDS:   Thank you, your Honour.

HER HONOUR:   Mr Solicitor, is there any real difference between hearing it in the week commencing 2 or 9 October?

MR DONAGHUE:   Your Honour, the longer it takes, the more sittings there are in the Parliament where the status of parliamentarians is uncertain.

HER HONOUR:   Yes, I understand that.  The Senate resumes on 4 September ‑ ‑ ‑

MR DONAGHUE:   On 4 September, yes.

HER HONOUR:   ‑ ‑ ‑ in relation to the possibility of other references.

MR DONAGHUE:   Well, my instructions are that certainly a reference will be made in relation to Senator Nash at least on that day, it will be moved in the Senate on that day, and I think the expectation is that Senator Xenophon would be dealt with at the same time, although that is not within the control of my client.

HER HONOUR:   I see.  Mr Bennett, you wish to say something.

MR BENNETT:   Yes, might I have leave to assist the Court by mentioning three logistical matters which may be relevant.  The first is that a number of the Mondays we are talking about public holidays ‑ ‑ ‑

HER HONOUR:   I have that in mind, yes.

MR BENNETT:   ‑ ‑ ‑ in a number of States; your Honour knows that.  The other is that in the week commencing 8 October, the International Bar Association is meeting in Sydney and it may that some High Court Justices have commitments to speak and that would involve ‑ ‑ ‑

HER HONOUR:   I am sure that they would break them.

MR BENNETT:   Yes, and the third logistical matter is, your Honour, that it may be necessary to consider if some High Court Justices know some of the people referred, whether there should be some sort of blanket consent or disclosure in relation to that.  That is entirely a matter for the Court.

HER HONOUR:   Yes, thank you.  The matter will be set down for hearing on 10, 11 and 12 October in Canberra.  If the parties could reorganise the timetable and - Mr Solicitor, I take you will probably have the charge of the timetable for directions.

MR DONAGHUE:   Yes, your Honour.  I think, if it would assist your Honour, we thought about what we would say about that in the event that what your Honour said was what your Honour has just said.  So I can propose some dates, if that would assist your Honour now, or we can deal with the parties ‑ ‑ ‑

HER HONOUR:   Yes, certainly.  We can look at those dates – you probably need to make allowance for further directions, or the possibility of a further directions hearing after the factual evidence and the expert evidence is in.

MR DONAGHUE:   Yes, we accept that, your Honour.  So that if your Honour has the minute that I just handed – in fact, your Honour, we are even better organised than I thought.  We have a printout of the version as proposed for further dates.  This will not be before any of my learned friends, but ‑ ‑ ‑

HER HONOUR:   So you had an alternative scenario all the time?

MR DONAGHUE:   Yes, well, your Honour, there is a level of pessimism that runs ‑ ‑ ‑

HER HONOUR:   It is just your high level of preparedness.  I understand that, Mr Solicitor.

MR DONAGHUE:   So, perhaps for the benefit of my friends in other locations, the 78B date that we propose in this version would be 25 August, that is to say, tomorrow.  The affidavits would be due on 8 September – sorry, that is the Attorney‑General’s affidavit.  The affidavit from the preferred parties if they wish to serve one – it sounds like your Honour might be varying that order – and the expert affidavit in paragraph 5 will be 8 September.  The application to file additional evidence would be by 12 September, any agreed facts by 15 September.

I should have said, your Honour, in relation to that, our proposal was not that one would seek necessarily to replicate all of the affidavit evidence into agreed facts because it may well be that that adds nothing to the process, but if there is any factual messiness it might be possible to clear up between the parties by agreement.

The application book would be filed by 19 September, the Attorney’s submissions would be filed by 22 September, the referred person and any other parties in Court would also be on 22 September, any party or intervener opposing or any other party or intervener would be by 29 September and then the matter would be listed – I think we guessed 10 and 11 in that document.  So your Honour said ‑ ‑ ‑

HER HONOUR:   10, 11 and 12.

MR DONAGHUE:   10, 11 and 12.  If the Court pleases.

HER HONOUR:   Can I ask - Mr Newlinds, I think you are most affected by this – are you able to say, having heard the Solicitor – I am not sure that you have a copy of this ‑ ‑ ‑

MR NEWLINDS:   I scribbled it down, your Honour.  I think I have the idea.  Can I just make two observations?  Firstly, we have been asking the Solicitor’s office for a number of days to see the documents that were transmitted to the Court, referred to in paragraph 1.  We do not have them.  Can we have a direction that they be served by tomorrow, 25 August, or provided informally but it would be a good start.

HER HONOUR:   They are now matters part of the Court record.

MR NEWLINDS:   Are they?

HER HONOUR:   They have been received by the Court.  There is no reason the Court cannot make them available to the parties.

MR NEWLINDS:   Thank you, your Honour.  Now, I am not sure - my learned friend has obviously missed the point.  The problem with – if this is adversarial litigation, and we do seem to have a contradictor now – the problem with the plaintiff, the Solicitor‑General, serving his expert evidence at the same time he receives my lay evidence is the ships will pass in the night, the Court will not be able to have before it an answer to the real questions that are being raised and there will be a whole lot of scurrying round after 8 September with perhaps two separate parties trying to organise further expert evidence.  That is why I said that we were prepared to try and put our lay evidence on by the 1st.  If we can see our learned friend’s expert opinion that he has now, that would help us decide if we are prepared to go with him as a single expert or whether we want to get our own ‑ ‑ ‑

HER HONOUR:   Mr Newlinds, can I just interrupt you?  If the Attorney‑General put on that expert evidence on 1 September as originally proposed, would that overcome the difficulty?

MR NEWLINDS:   No, because his evidence still would not deal with my factual situation so sure, one assumes he is going to put on an expert ‑ ‑ ‑

HER HONOUR:   I see.

MR NEWLINDS:   ‑ ‑ ‑ who says if you are born in 1955 in India to a Welsh father then the answer ‑ ‑ ‑

HER HONOUR:   Well, what are you proposing as an alternative to this?

MR NEWLINDS:   He obviously has an opinion already.  Can he serve it now?

MR DONAGHUE:   Your Honour, can I – the opinion that we have does not, of course, relate to Senator Roberts.

MR NEWLINDS:   No.

MR DONAGHUE:   If our friend files his affidavit by the 1st as he indicated, then that would solve the problem because we will have filed our expert report by the ‑ ‑ ‑

MR NEWLINDS:   All right.

MR DONAGHUE:   We may be able to solve the problem otherwise if my friend and I can reach some agreement about getting some documents we can brief to our expert.  We can speak out of Court about that.

HER HONOUR:   All right.  Can I leave those dates to the Solicitor and you, Mr Newlinds, but otherwise there will be orders in terms of the draft proposed.  Where would a directions hearing best suit in this scheme, Mr Solicitor?

MR DONAGHUE:   I think, your Honour, either following the 6th or following the 7th ‑ ‑ ‑

HER HONOUR:   We have to allow sufficient time, of course, that if there is a possibility of anyone required for cross‑examination and findings of fact to be made that that can be accommodated.  It is not immediately obvious to me that that will be the case, but we should allow for it.

MR DONAGHUE:   For any such applications to be made.  Your Honour, I see the Court is sitting in the week of the 11th.

HER HONOUR:   Yes.

MR DONAGHUE:   It would, in my submission, be possible to – the other matter in the mix, your Honour, is that if there are any references on 4 September then your Honour will need to make the determinations and make orders to put those matters into the mix ‑ ‑ ‑

HER HONOUR:   And to bring them on before it reached its hearing.

MR DONAGHUE:   Indeed.  So it may be that all of that could be done on the 18th – that would be two weeks exactly after the references had been made and we could deal with that at the same time as – the 18th, I apologise, your Honour, I do not think it is ‑ ‑ ‑

HER HONOUR:   Could it be accommodated by a directions hearing on the 15th?

MR DONAGHUE:   Yes, your Honour.

HER HONOUR:   The morning of the 15th.  I think that – shall we say 10.15 on the 15th?

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   I will be in Canberra at that time.  The rest can be by video link.  I will sit in Canberra.

MR DONAGHUE:   Thank you, your Honour.

HER HONOUR:   Mr Solicitor, if you could have the final copy of the directions provided to my chambers.

MR DONAGHUE:   We will do that, your Honour.

HER HONOUR:   There are no further matters need to be addressed at the moment?

MR MERKEL:   Your Honour, there are two matters we seek to address.

HER HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, the first is a minor one and that is that we would ask to be able to have our submissions limited to 20 rather than 15 pages – 20 is the norm and I doubt the Solicitor would have any objection to that.

HER HONOUR:   Why do you need five more pages, Mr Merkel?

MR MERKEL:   Just as a matter of caution, your Honour.  It is a norm for the applicant to have that but we would ask for it.  If it is a problem we do not wish to say anything further about it.  We are in a slightly different position to the other parties, your Honour.  The second matter, your Honour, is we understand the ‑ ‑ ‑

HER HONOUR:   Yes, well, all right, it will be 20 pages but that is not meant to be an encouragement.

MR MERKEL:   Thank you, your Honour.  The last matter, your Honour, is we understand the Attorney is agreeing to pay party and party costs of the referred parties and also of Mr Windsor and we would ask for that order to be made.

MR DONAGHUE:   Your Honour, I would ask you not to make that order.  My friend and I have had some discussions about that, but as things have played out today – anyhow, some further discussions about that, your Honour.

HER HONOUR:   Of course, the Commonwealth did pay costs in relation to Ms McEwen, I think, in relation to the Culleton reference but I do not think the Court ordered it.  Was it an undertaking or an order?

MR DONAGHUE:   At some point, I think that is – there was an order, I think, eventually, your Honour.  Your Honour, could I propose this course, that given that we are going to submit orders to your Honour, we either incorporate an order of that kind or address the matter at the next directions hearing, after I have had a chance to clarify my instructions, if your Honour will ‑ ‑ ‑

HER HONOUR:   Do you have any difficulty with that course, Mr Merkel?

MR MERKEL:   No, your Honour.

HER HONOUR:   Yes, we will leave it ‑ ‑ ‑

MR MERKEL:   Thank you, your Honour.

MR DONAGHUE:   Your Honour, I also, if I understood you correctly, should amend this order to add the normal reference to picking up the practice direction in the High Court on the High Court Rules ‑ ‑ ‑

HER HONOUR:   Yes, that is right.

MR DONAGHUE:   Is that 20 page ruling your Honour made applicable across the board or just to Mr Windsor?

HER HONOUR:   No, it is applicable across the board.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   The Court will now adjourn.

AT 11.39 AM THE MATTER WAS ADJOURNED