Re Culleton

[2016] HCATrans 296

[2016] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C15 of 2016

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 Rodney Norman Culleton

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 DECEMBER 2016, AT 10.19 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, in that matter I appear with MR C.L. LENEHAN and MR B.K. LIM, for the Attorney‑General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

MR P.E. KING:   If your Honours please, I appear with MR P.W. LITHGOW, for Senator Rodney Norman Culleton.  (instructed by Maitland Lawyers)

KIEFEL J:   Mr King, I believe there is a preliminary matter in the nature of an application for adjournment.

MR KING:   Yes.

KIEFEL J:   Is this opposed?

MR WILLIAMS:   Yes.

KIEFEL J:   You may wish to speak to it.  I believe the application relies upon an affidavit of Senator Culleton which has now been filed in the Court.

MR KING:   It does, your Honour.  I would read that affidavit, although there are two errata, which I have advised my friend of, which are obvious.  In paragraph 7, line 3, the reference to paragraphs 4 and 5 should read 5 and 6.  In paragraph 12g, in the third line, a reference to “the issue in [d]” should read “the issue in [f]”.  Except for those errata I read that affidavit.

MR WILLIAMS:   Your Honour, before the Court proceeds further in respect to the affidavit I am duty bound to call attention to the provisions of the Parliamentary Privileges Act, section 16(3). That has been made available to the Court crier a few minutes ago. The relevant prohibition is on a “court or tribunal” in the chapeau of the subsection and it is to the effect that “it is not lawful for evidence to be tendered or received”. Paragraphs (b) and (c) are potentially relevant, particularly (c), “for the purpose of”:

drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

KIEFEL J:   How do you say that arises here?

MR WILLIAMS:   The submission, as we understand it, invites the Court to draw conclusions – a conclusion that there should be an adjournment on the basis of a matter that has occurred in the Parliament and is said to have some ongoing existence in the Parliament or a conclusion from matters occurring in the Parliament.  That, we say, engages with paragraphs in the affidavit, 3 through to 8, 13 and the second part of paragraph 15 from the word “and” to the end of paragraph 15.

KIEFEL J:   Are you saying that the material – annexure A – albeit a rather informal document and probably one referring to the wrong date of proceedings in the Senate – cannot be received by this Court?

MR WILLIAMS:   That is so.

KIEFEL J:   That would be because the Court would be asked to draw an inference or conclusion about what might occur in the Senate?

MR WILLIAMS:   Yes, yes.  Plainly enough, when the Senate – or either House – refers a matter, a question, to the Court as has occurred, there could not be a question of privilege in respect of the question so referred, or the material so referred.  But, absent a withdrawal of that reference which might also be within a carve‑out, as it were, from parliamentary privilege, 16(3) has apparent operation.

NETTLE J:   But the conclusion you say that we would be asked to draw is that the Parliament might jump one way or the other.  Is that it?

MR WILLIAMS:   That is at least one of the conclusions that the Court appears to be being invited to draw.

NETTLE J:   Would it be drawing a conclusion simply to say, well, we might allow times that they can go away and make a decision as to which decision they wish to make?

MR WILLIAMS:   That would involve reaching a conclusion about the likely course of events or the possible course of events in the Senate in circumstances where there is an extant reference to the Court which is listed for hearing.

NETTLE J:   Namely, that it is possible that they might jump in a particular way.

MR WILLIAMS:   Yes.

NETTLE J:   Yes.

KIEFEL J: Would a question arise under section 16(3), if the Court came to the view that there was no conclusion open on the material available?

MR WILLIAMS:   The purpose for which the evidence is introduced would still infringe the chapeau.

KIEFEL J:   Would still be contrary to subsection (3).

MR WILLIAMS:   Yes.

KIEFEL J:   All right.  Yes, Mr King, we should hear you on this point.

MR KING:   Thank you, your Honours.  We would respectfully submit, firstly, that this is ‑ the material that we are seeking to elicit does not fall within any of the categories that are specified; that is, questions asked or statements, submissions or comments made concerning proceedings in the Parliament.  The other point that we would make, with respect, is that we are not asking the Court to draw inferences or conclusions.  All we are doing is seeking an adjournment to allow the Senate the opportunity to resolve a question which is pertinent to considerations here.

So, for example ‑ and this is foreshadowing an aspect of the argument, but section 376, the referral question of the Commonwealth Electoral Act, makes provision for referral by the Senate and what can be referred can be withdrawn as ‑ ‑ ‑

KIEFEL J:   Well, that is, I think, a separate point ‑ ‑ ‑

MR KING:   Yes.

KIEFEL J:   ‑ ‑ ‑ but the purpose of the material that is being effectively objected to is, I think, referred to in paragraph 13 of Senator Culleton’s affidavit.  I think that appears to be the purpose.  It is to provide a platform for further action to be taken.

MR KING:   Well, we respectfully say that the nub of 13 is that he and other senators proposed to more that the referral be recalled and revoked once hearing from their colleague in the Senate.  That is not a conclusion that derives from any matter that my friend objects to and we say that, respectfully, what fell from your Honour Justice Nettle is a more pertinent approach – that is to say that that section is not relevant to the seeking of a mere opportunity to allow the Senate to consider the matter in full.

KIEFEL J:   The Court will adjourn for a short period to consider the course that it will take.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.35 AM:

KIEFEL J:   The Court considers that it is being asked to draw inferences of fact about what the Senate may not have been told and to draw a conclusion about what the Senate might do.  For these reasons, paragraphs 3 to 8 inclusive, 12i, 13 and that part of paragraph 15 which reads:

and so that the Senate may have a reasonable opportunity to recall the referral –

which appear in the affidavit of Senator Culleton, filed today, may not be tendered or received in evidence by this Court pursuant to section 16(3) of the Parliamentary Privileges Act 1987 (Cth). It follows, of course, Mr King, that you may not rely upon them.

MR KING:   Of course.  Thank you, your Honours.  Your Honours, that really then leaves my application for an adjournment on two bases.  One is that the 78B notice was insufficiently particularised and, second, that Senator Culleton wishes to obtain or have the opportunity to issue subpoenas and obtain evidence regarding facts which occurred at the Armidale court on 2 March 2016.

KIEFEL J: Have you given notice – have you alerted the other side to the point about the section 78B notice?

MR KING:   Yes, it is mentioned in paragraph 7 of Senator Culleton’s affidavit, your Honour.

KIEFEL J:   Paragraph 7?

MR KING:   Paragraph 7, yes.

KIEFEL J:   That is, in fact, one of the paragraphs that have come out under the order that has just been made.

MR KING:   That is true but they were on notice.

KIEFEL J:   That does not prevent you from having regard to the terms of it, in any event.  You do not need Senator Culleton’s affidavit to do that.

MR KING:   No.  And, also, my friend ‑ ‑ ‑

KIEFEL J:   So, where does the notice appear in the court book?

MR KING:   It is found in the court book at 44.

KIEFEL J:   Yes.  And what is the point, Mr King?

MR KING: What we respectfully say, your Honour, is this. The nature of the dispute, which are the words referred to in section 78B as being necessary to be specified – the nature of the matter, section 78B(1) ‑ is referred to only in paragraph 3, that is, that it is said that the question:

is engaged by a person having been convicted as a matter of historical fact at a given date, or whether it is engaged only by a person having been convicted correctly at law.

But what the notice does not do, either there or in the facts that are set out, is to make it clear that the so‑called “conviction in fact” argument proceeds upon the basis that the conviction in fact may have occurred whether or not as the result of a gross error of the particular court – a jurisdictional error – even an abuse of process or corruption of that particular court’s process.

KIEFEL J: How would that be relevant to the construction of section 44 of the Constitution?

MR KING:   Because that is part of the argument that the respondent has.

KIEFEL J:   That does not make it necessarily relevant.  I mean, if you are taking this point about the notice, you have to make good your argument at this point, do you not?

MR KING:   Well, we are happy to do that, your Honour, but what we are saying is that a notice which relates to a matter having such broad implications in which, in effect, what the respondent – sorry, what the attorney is doing is, in his own words, “broadening” or “significantly widening” the net of disqualification, that it should be made clear that that is the nature of the dispute and the purpose of the referral and the basis of it. 

Also, in the facts, it is not set out that Senator Culleton had a reasonable explanation for his absence from the court and that the court, having regard to the trivial nature of the circumstances of the offence – his clean record and good character – dismissed the conviction against ‑ dismissed the matter and made no order of conviction against him.

We say that those are relevant facts and circumstances, particularly in a matter such as this which ought to have been notified, because perhaps every MP in the country would be interested in that question.  That is our only point there, your Honour.

KIEFEL J:  How does that arise under the requirements of section 78B of the Judiciary Act?

MR KING:   Subsection (1) provides that:

the court not to proceed . . . unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States ‑

And we say respectfully that this notice does not specify the nature of the matter. 

KIEFEL J:   Yes, and ‑ ‑ ‑

MR KING:   Our third point, your Honour – sorry, my apologies.

KIEFEL J:   And the next point, we might hear argument on both and then consider both of them.

MR KING:  The other point, your Honour, is this, that section 196(3) of the Criminal Procedure Act reflects the requirements of procedural fairness which we say were not followed with respect to the conviction of Senator Culleton.

I have raised this with my friend but on the argument that my friend is putting forward – which you will see in paragraph 20 of his written submissions – he might say that it does not matter because he is saying whether or not there was a jurisdictional error by the Local Court does not matter, his argument is still good in relation to this conviction in fact point, but there is an observation by Justice Gageler in Kable (No. 2) to the effect that a different position may be taken in circumstances where an order is made without jurisdiction or, one might interpolate, as an abuse of process or otherwise, so that ‑ ‑ ‑

KIEFEL J:   Is this a basis for an adjournment or really part of the substantive argument?

MR KING:   Not really, your Honour, because this was raised by Senator Culleton at the directions hearing when he was self‑represented.

KIEFEL J:   Yes.

MR KING:   He did ask for time to subpoena and call for material, so my friend has had notice of this, and the orders that he handed to the learned Chief Justice on that occasion are set out at attachment B to his affidavit.

KIEFEL J:   I have read the transcript of the directions.  So the question here is whether or not any of that material obtainable by the subpoenas would be relevant to the question which arises for the Court.

MR KING:   That is right.  Now, I should inform your Honours that after I alerted my friend to these issues he has this morning given to me two pages of a transcript from the Local Court in Armidale which suggests that somebody turned up at the time the matter was fixed for hearing in January 2016, but whoever that person was seems to have been an agent of the then solicitors for Senator Culleton.

They either misunderstood or did not communicate that to Senator Culleton and section 196(3) refers specifically to the accused person himself, not his or her representative. So we seek that opportunity to make clear to the Court that there was a breach of procedural fairness when the conviction in his absence was entered on 2 March 2016 and that there was a failure to comply with the mandatory criminal procedures under section 196 of the Criminal Procedure Act for dealing with offenders in their absence.

BELL J:   That submission is made notwithstanding it is accepted that a legal representative of Senator Culleton was present before the Local Court on that occasion.

MR KING:   No.  What we acknowledge, although we have not had an opportunity to check it – what my friend has done is provide us with a transcript this morning which appears to indicate that the agent for his solicitors was present when the matter was fixed but not present when the matter was heard.

BELL J:   So that an agent for the legal representative of Senator Culleton was present when the hearing was fixed before the Local Court ‑ ‑ ‑

MR KING:   But not when it was heard.

BELL J: And section 196(3) constrains the court from proceeding to hear and determine a matter unless the court is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing. So the submission is that you seek to establish that the court could not have been satisfied that Senator Culleton had reasonable notice of the date, time and place of the hearing, notwithstanding that the agent of his legal representative was present on the occasion when the fixture was appointed.

MR KING: That is correct, your Honour, and that is made apparent from paragraph 9 of his affidavit, because the circumstance is that he was in Western Australia when he heard that the hearing was fixed for the next day, which was not the day that he understood the hearing was to be on. He contacted the court by telephone. They said they would fix it for mention. He asked if he could appear by mention – that was not permitted – and then the court proceeded to convict in his absence. We wish to adduce evidence that the conviction in his absence was both in breach of procedural fairness and in breach of section 196(3). I have invited my friend to make those concessions and I have indicated to him if he makes those concessions I will withdraw the application for an adjournment, but I do not wish the matter to proceed to the prejudice of Senator Culleton in those circumstances.

KIEFEL J:   We should hear from Mr Williams.

MR WILLIAMS:   Your Honours, in relation to the 78B notice question, the terms of paragraph 3 of the notice, which appear on page 44 of the book, are a precise statement of the range of questions that are sought to be agitated in the Court.  The concluding lines “or whether it is engaged only by a person having been convicted correctly at law” combined with the opening lines point succinctly to the distinction that is being drawn and give adequate notice in and of itself.

Leaving that aside, it is to be observed that paragraph 3 is couched in terms in the second line of including, in particular, one particular question. It is to be observed that on the next page in paragraph (j), page 45, at about line 30, a copy of the statement from the President of the Senate is annexed. That statement, as it appears, or the second page thereof at page 49 of the book, raises as the first question “whether, by reason of s 44(ii) of the Constitution, or for any other reason”. Now, those words, of course, are no longer live in this Court – there is a vacancy in the representation of Western Australia. That is, in our submission, a perfectly adequate form of notice pursuant to section 78B.

I should say that the Court’s record in this respect is complete, seek leave to tender or to hand up copies of the certified copy of the transcript in the Local Court of Armidale before Magistrate Holmes, on Monday, 18 January 2016.

KIEFEL J:   Do you have objection to us receiving this, Mr King?

MR KING:   Can I just get some instructions, your Honour.  I am concerned about it because we have only seen it this morning and ‑ would your Honour excuse me.

KIEFEL J:   Yes.

MR KING:   No objection.

KIEFEL J:   Thank you.

MR WILLIAMS:   It is but short; I will pause, to give the Court the opportunity to peruse it.

KIEFEL J:   Yes, Mr Williams.

MR WILLIAMS: Although Messrs Levitt Robinson, as far I think as the evidence shows, were not on the record by the precise date of the hearing, 2 March, they were on the record at this point and, in our submission, the appearance of the defendant through agents of his duly appointed solicitors at the time and date on which the hearing was set, constitutes sufficient notice for the purposes of section 196(3).

The issues in this respect have, in any event, been well known to Senator Culleton and to Mr King who appeared for him, I think it will be common ground, at the annulment application on 8 August at which point extensive written submissions were put in support of annulment that canvassed the circumstances of the failure of his client to appear on the earlier occasion so these matters are not new.

The affidavit that was sworn the day before yesterday but supplied to us pursuant to a request early yesterday afternoon does not, in our submission, put forward any adequate reason why the Court should adjourn a matter which has a significant measure of public interest urgency to it in order to permit investigations to be made into the question of what his former solicitors may or may not have known by way of subpoena.

That is not, in our submission, a relevant line of inquiry, in any event, given that my friend must have been in a position by 8 August to put submissions in support of an annulment, necessarily involving reference to the facts involving Senator Culleton’s non‑appearance on 2 March.  The facts were sufficiently known not to justify an adjournment at this point.

KEANE J:   That application took advantage of the provisions of the (Appeal & Review) Act whereby the annulment was granted to proceed to a dismissal without conviction, notwithstanding the plea of guilty.

MR WILLIAMS:   That is so, although that, of course, occurred in two stages.

KEANE J:   Yes.

MR WILLIAMS:   There was first an annulment put forward on the basis that there would be a contested hearing.  Then, there was a plea at a later point.  I think the evidence might not go so far as the first point.  The evidence that is currently before the Court might not go so far as to establish the basis on which it was put forward.  But, certainly, an application was made and succeeded on 8 August and there was later a plea and the offence being found proved not proceeding to conviction at a later point.  Those are our submissions.

KIEFEL J:   Anything in reply, Mr King?

MR KING:   Just to refer your Honours to paragraph 10 to say what it is that Senator Culleton wishes to have the opportunity to do.  What my friend has omitted to refer to, your Honours, anecdotally – all I can say is that between March and August, Senator Culleton was in Western Australia busy with his campaign. 

KIEFEL J:   The Court will adjourn again briefly to consider the course it will take.

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.01 AM:

KIEFEL J: The Court considers that the notice given under section 78B of the Judiciary Act 1903 (Cth) specifies the nature of the matter referred to this Court. The Court does not consider that there is any merit in the argument based on section 196(3) of the Criminal Procedure Act 1986 (NSW). Further, assuming for present purposes that the evidence sought to be obtained is relevant to the matter before the Court, there has been sufficient time to obtain it. There is now no warrant for an adjournment. The application for an adjournment is refused.

We will now proceed to hear the substantive argument.

MR WILLIAMS:   Thank you, your Honour.  The point at which our argument commences is with the Crimes (Appeal & Review) Act 2001 (NSW).  The essential point that we put as the first point of the outline is that the procedure for annulment prescribes a prospective procedure.  The word “annulment” is one which derives its meaning from its context and it can mean either annulment prospectively or retrospectively.

Perhaps I should briefly refer the Court to the procedures that begin in section 4 of that Act.  An application for annulment – annulment being, we say, no more than a statutory label for a procedure which is set out in section 9 leading to effects that are set out in section 10.  The procedure is by way of an application to the local court.  There is a qualification in subsection (1A), paragraph (a).  The defendant may only apply if he or she:

was not in appearance before the Local Court when the conviction was made –

In subsection (2), the application must be made:

within 2 years after the relevant conviction –

unless there has been an application made using the procedure to the Minister in section 5.  Such an application to the Minister must be made within two years.  Thereafter, there is a further two‑year period within which an application may be made to the local court.  So from there it is a procedure which might take something over four years to play out according to the periods prescribed.  The circumstances in which an application is to be granted are set out in section 8.  Subsection (2), if:

the defendant was not aware of the . . . proceedings –

or 2(c):

having regard to the circumstances of the case, it is in the interests of justice to do so.

The procedure is then set out in section 9.  If the Court’s decision in 9(2):

is to annul the relevant conviction or sentence, the Local Court:

(a)       must deal with the original matter afresh –

and in subsection (3): 

The Local Court is to deal with the original matter as if no conviction or sentence had been previously made or imposed.

That is, we submit, the classic language of deeming – a recognition that a conviction has in fact been made and a requirement upon the Court to proceed upon a fiction or an hypothesis that is contrary to the facts.  This deeming operates, we say, for a limited purpose regulating the manner of disposition of the original matter.  Before turning to the authorities that make those two propositions good, I should notice section 10 which deals with the effect of annulment.  The opening words:

On being annulled –

in subsection 10(1) is, in our submission, the language of prospectivity.  So is the operative phrase, “ceases to have effect”:

a conviction or sentence ceases to have effect –

So, also, is the reversal of enforcement action previously taken.  Such is not nullified or declared void.  Such action plainly, in the terms of the section, was lawful at the time it was taken and it is not invalidated by a later annulment.  So there is neither in form nor in substance any deeming of nullity nor of retrospectivity.

The two propositions that come from section 9 as to the language of “deeming” come as we refer in our third dot point in paragraph 1, first from Re Macks; Ex parte Saint 204 CLR 158. The relevant passage is at page 203 in paragraph 115 in the judgment of Justice McHugh. His Honour refers first to the statutory phrase “as if” and then refers to the decision of the Court in R v Hughes:

this Court said that the use of the phrase “as if” was “a convenient device for reducing the verbiage of an enactment”.  But the expression always introduces a fiction or a hypothetical contrast.  It deems something to be what it is not or compares it with what it is not.

The extent to which such a deeming operates is dealt with in East Finchley v Commissioner 90 ALR 457, the decision of Justice Hill. On page 478, his Honour quotes Justice Fisher from FCT v Comber – this is at about point 8 on the page, about line 35 on page 478:

“In my opinion deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to . . . It is improper in my view to extend by implication the express application of such a statutory fiction.”

Justice Hill then refers to additional authority for that proposition.  The authority that our friends rely upon may be seen in their submissions at paragraph 22, and that is they rely upon a partial quote from the Oxford Companion to Law.  If your Honours see that quote there, it begins with an ellipsis and a reference to “Annulment of the marriage”.

The full quote is in material that we have handed up this morning in a bundle that begins with the front page to the Oxford Companion to Law.  If your Honours were to turn to page 2 of that paginated bundle, your Honours will see the quote, or the full form of the quote, that appears in part in paragraph 22 and the opening sentence of that is the sentence that, in our submission, is the key point that our friends appear to have overlooked:

If a judicial proceeding is annulled it is deprived of effect and rendered inoperative, either retrospectively or prospectively.

The point that we seek to make by reference to this and by reference to the other sources that I will take your Honours to in this bundle in a moment is that the protean nature of the word “annul” or “annulment” is such that the precise legal incidence must always be derived from statutory context, and that is the point that is indeed emphasised, we say, in the opening words of the quote.

If I could then take your Honours through to page 3 to mention what it is, the Australian Law Dictionary from Oxford University Press and then at the foot of page 4:

annulment The SETTING ASIDE by a court of some instrument or order, which cancels its legal effect and renders it void.

There is then the example of annulment of bankruptcy.  Now, the point about bankruptcy, and it is made in the balance on the following page, page 5, is that annulment of a bankruptcy:

is a LEGAL FICTION that renders the SEQUESTRATION ORDER as if it had never occurred; in the eyes of the law the person was never bankrupt, subject to some residual effects or exceptions ‑

Similarly, the dictionary goes on to refer to “in family law” the annulment of a marriage.  But in each of those cases – for example, in the bankruptcy case – although it may be annulled and be void ab initio, nonetheless each step taken by the trustee during the bankruptcy is nonetheless a valid step; each disposition of property is nonetheless a lawful disposition of property.  So even in that context – and it is the context that our friends rely on, the analogy that our friends rely on – nullity is not absolute and is subject to the particular context.

The second point of analogy that our friends rely on is the annulment of marriage, which is referred to here and in some later dictionary references that I will go to.  But, of course, even where a marriage is annulled by section 91 of the Marriage Act, a child of the marriage, albeit a void marriage, is nonetheless a legitimate child of the marriage.  So even in the family law context which our friends again rely on, nullity is relative to context.

On page 6 we set out, for an historical view of the meaning of the term, the 1882 A Dictionary of English Law by Mr Sweet, on page 7, has a definition of “annul” and again we would emphasise the first sentence of that as indicating the contextual dependency or the protean nature of the meaning of the word “annul”.

The Concise Australian Legal Dictionary is set out on pages 8 and 9 and again the opening sentence of that is:

The act of rendering something void, often from the beginning.

But the necessity to qualify by reference to the word “often” indicates contextual dependency, and at the top of the second column there is a reference to void marriages, the example I have referred to a moment ago.

We do also refer in this respect to the judgment of your Honour Justice Gageler in Kable 252 CLR 118 in the passage at 138, beginning at paragraph 52. Perhaps I could invite your Honours to read paragraph 52. Then from the middle of 53 there is a reference to Dignan where convictions were sustained despite the regulation under which the convictions had been made being disallowed with retrospective effect.  Justice Dixon’s explanation of that is given at the foot of the page.  There was a conviction because it had merged in the conviction – the liability had merged in the conviction – it no longer depended upon the law under which it arose and did not lapse with revocation and the conviction becomes a source of the liability.  Then in paragraph 55, perhaps the opening sentence of paragraph 55:

A judicial order of any court, whether superior or inferior, is valid and effective if it is made within jurisdiction.

So, your Honour, we say it follows from all those references that an annulment under the Crimes (Appeal and Review) Act does not operate retrospectively.  It is essentially the first point of construction that we put that it continues to have an existence in fact and that is sufficient to answer, in our submission, the question before the Court.  Throughout the relevant period Senator Culleton was a person who stood convicted of an offence and was subject to be sentenced in respect of the offence on a correct construction of the Crimes (Appeal and Review) Act.  We then make the point in paragraph 2, and we are not certain this point is taken against us, but in the second point we submit that 44(ii) of the Constitution:

is engaged by conviction and sentence, or subjection to sentence, for an offence that is punishable by a maximum penalty of one year or more –

We refer in that respect to the debates.  Again, there is a bundle of material that we have handed to your Honours this morning, a different bundle, which starts with New South Wales, the official report of the National Australasian Convention Debates, starting with the 1891 debates.  The form on the second page of that of clause 46, as it then was, is set out in the left‑hand column at about point 5.  Subparagraph (3), a person:

Who is attainted of treason, or convicted of felony or of any infamous crime ;
shall be incapable of being chosen or of sitting as a senator or member of the house of representatives until the disability is removed by the grant of a discharge, or the expiration of the sentence, or a pardon, or release, or otherwise.

Now, the evolution of the terms of 44(ii) I will trace briefly, but it starts, as we see here, relevantly, with “conviction of felony or of any infamous crime”.

On page 10 is material ‑ it in fact starts at page 7 with a documentary history, The Australian Constitution by John Williams, published by Melbourne University Press. Page 10 of the bundle, section 45 is then set out and these are observations of Sir Samuel Griffith, at about point 5 on the page:

This section . . . needs verbal amendment.  The words ‘until,’ &c., at the end are not applicable to the whole of the cases mentioned.  The word ‘felony’ also is, it is suggested, an inappropriate one.  Apart from the fact that the word no longer bears any definite descriptive meaning, the use of it has the effect of making the disqualification in question dependent upon State law.  In New Zealand the term is no longer used in criminal law, and it may be disused in other Colonies.  Moreover, the same offences are felonies in some Colonies and misdemeanours in others.

Some examples are given.  Alternative suggestions are made but the third of those:

To substitute for ‘felony’ words to the effect following: ‘An offence of such a nature that by the law of the State of which he is a representative a person convicted of it is liable to undergo penal servitude or imprisonment with hard labour for a term of three years.’

So, turning then to page 12 in the 1897 debates, page 1012 of the 1897 debates, in the left‑hand column at about point 5, in a contribution of Mr Glynn, there was a reference to the meaning of “bankrupt”:

It may be very different twenty years hence from what it now is.  Then there is the word “felony.”  As Sir Samuel Griffith has pointed out, the meaning of the word “felony” is changing considerably.  In some colonies felony is comparatively a light offence; in other colonies it is a heavy offence.  In New Zealand felony is practically unknown to the federal law.  Changes similar to that which have taken place in New Zealand in regard to the meaning of the word may take place in other colonies, and if you leave the clause as it stands you will put it in the power of the states parliaments to either extend or diminish the qualification by making a change in the meaning of “felony”.

Then on the right‑hand column, just above Mr Barton’s contribution:

I think this is a matter that ought to be left to the federal parliament, and I think that the words I suggest should be adopted.

Then on page 15 of the debates of that day, at the foot of the left‑hand column, the motion to insert the words:

“until parliament otherwise provides” –

was put but defeated, 26 to 8.  Then on page 20 of the same debate at about point 4 in the left‑hand column, Mr Barton:

The words in the clause are:

Who is attainted of treason or convicted of felony –

There is a reference to Sir Samuel Griffith’s suggestion and then words, those suggested by Sir Samuel are set out, and what followed from there is that a drafting committee took the draft and reported to the 1998 Convention which your Honours will see relevantly from page 24 of the bundle.  At the foot of page 24, page 2443 of the debates, Mr Barton moved:

That the amendments suggested by the Drafting Committee . . . be now adopted.

At the foot of the following page 2444, Mr Barton states:

I think I shall have the support of my colleagues on the Drafting Committee in saying that we are not conscious of having altered the sense or the intention of the committee – always taking into account that we had to gather the intention from the debate – excepting with reference to a disqualification in clause 45, where we altered three years to one year, subject, of course, to the subsequent approval of the committee.  We did so, because if some alteration of the kind were not made a person in gaol might be eligible to be elected to the Federal Parliament, and we thought that if the matter had been pointed out to the committee they would have made the alteration themselves.

And the current form, your Honours, is what emerged from that process in 1998, including the words “subject to be sentenced,” that are before the Court. So what emerges from the debate is that the predominant purpose of section 44(ii) is to lay down a clear constitutional norm as to when and for how long a person is disqualified. The clear norm is a person convicted of an offence of the stipulated seriousness – that is, one carrying a maximum of one year or more – and the disqualification subsists until the punishment is expiated.

We do also refer to Chanter v Blackwood 1 CLR 39. The first passage we refer to is on page 57. This is in the judgment of Chief Justice Griffith before the Commonwealth Law Reports had sidenotes of the Judge’s name. At about point 6 in the page:

Now, in this case the Legislature has enacted a number of provisions, and has attached to the breach of some of them liability to imprisonment for 12 months, and the Constitution had already provided that a person subject to punishment of that kind should lose his seat. So that, from that point of view, it would appear that Parliament was aware that any person guilty of any of those offences to which the punishment of 12 months imprisonment was attached would lose his seat under the Constitution, and that therefore it was unnecessary to make further provision in the Electoral Act, leaving his guilt to be established in the ordinary way.

The next passage dealing with it is in paragraph 76, in the judgment of Justice O’Connor, who was dissenting in one respect but not in this respect.  On page 76, at about point 3 on the page, the line beginning with the word “Representatives”:

Therefore if a person has been guilty of any of those illegal practices mentioned in sec. 181 of the Electoral Act, for which he is liable of imprisonment for one year, he comes under the operation of sec. 44 of the Constitution. For bribery or undue influence he may be imprisoned for one year. That being so, that is a punishment which comes under sec. 44 of the Constitution and if before any ordinary tribunal on summary conviction, a candidate is convicted of that offence, he forfeits his seat, and is incapable of sitting as a Senator or as a member of the House of Representatives.

So we then turn, as our third point, to the words “punishable by imprisonment.”  In Nile v Wood 167 CLR 133, there are observations concerning these phrases. Page 139, in the joint judgment of Justices Brennan, Deane and Toohey, at about point 2 on the page, there is a reference to the terms of the petition, that:

the petition did not set out facts which bring the first respondent within par. (ii) of s. 44 of the Constitution. It is not conviction of an offence per se of which s. 44(ii) of the Constitution speaks. The disqualification operates on a person who has been convicted of an offence punishable by imprisonment for one year or more and is under sentence or subject to be sentenced for that offence. The references to conviction and sentence are clearly conjunctive, although the petitioner argued otherwise. This is so as a matter of construction . . . And it is apparent that it was the intention of the framers of the Constitution that the disqualification under this paragraph should operate only while the person was under sentence –

There is then a reference to Quick and Garran.  This is, of course, a reference to the first of the limbs where the person has been sentenced.  But, as the passage earlier in the judgment acknowledges, there is a second limb “subject to be sentenced” to that offence and that is one that is not referred to by Quick and Garran. 

So, your Honours, in our submission, that passage probably clearly indicates the operation of the provision upon offences carrying the requisite maximum penalty rather than upon offences for which the person has actually been sentenced to a period of 12 months or more.  We then from point 4 of the outline deal with the position if contrary to the first submission we have put about the construction of the Crimes (Appeal and Review) Act that Act does operate retrospectively.

KIEFEL J: Mr Williams, what do you say is the correct starting point in terms of which provision ought to be construed first – section 44 of the Constitution?

MR WILLIAMS:   Undoubtedly.

KIEFEL J:   That is the way in which your written submissions have approached it but you have reversed it in oral argument.

MR WILLIAMS:   Yes, yes.  In a sense, your Honour, the 44 must be the starting point ‑ ‑ ‑

KIEFEL J:   Yes.

MR WILLIAMS:    ‑ ‑ ‑ in terms of constitutional construction.

KIEFEL J:   Does that mean it is your primary submission that the provisions of the Crimes (Appeal and Review) Act fall away or they are read with it to establish the existence of the fact?

MR WILLIAMS:   There may be two different positions according to the construction one adopts of the Crimes (Appeal and Review) Act, and this is the reason why we have put our propositions about that Act first.  If that Act is wholly respective in operation, then Senator Culleton throughout the relevant period was a person who in fact and in law and for all purposes stood convicted and liable to be subject to be sentenced to – in respect of an offence of the requisite seriousness throughout the period. 

Now, if that is so, the constitutional questions that arise are more limited than if one were to say that the New South Wales Act operates retrospectively or if one were to assume – contrary to the evidence before the Court – that there was some jurisdictional error in the decision. We would say, in all of those cases on a correct construction of section 44(ii), there has been a conviction in fact. For the reasons of certainty in the electoral process and the determination of the composition of the Houses of the Parliament that we refer to, we say that those reasons of certainty point to the question of fact rather than any question of underlying validity or invalidity of the conviction or liability of it to be set aside.

For those reasons, on any of those scenarios – that is, jurisdictional error, retrospective operation of the Crimes (Appeal and Review) Act, or the primary way we put the Crimes (Appeal and Review) Act that it is simply prospective in any of those circumstances 44(ii) is engaged.  But it is not necessary for the Court to deal with the second of those – on one view it is not.  It is not necessary for the Court to deal with jurisdictional error, in any event, because there is no evidence to suggest that. 

But, if the correct construction of the Crimes (Appeal and Review) Act is that it is wholly prospective, then the Court does not need to go as far.  The construction of the 44(ii) for which we contend is the same in either event.  That is the reason why we put it in that different order in oral argument, but we rely on the same construction of 44(ii) in each case.

NETTLE J:   Mr Williams, just before you go to it, whilst you are on the prospective operation of section 10 of the CAR Act, if someone were convicted and the conviction were set aside and he were then asked, “Have you ever been convicted,” would he be permitted truthfully to answer, “No, I have not”?

MR WILLIAMS:   First, I think in many States that is regulated by statute.  There is a period after which a person – there is a period of annulment.

NETTLE J:   Just assuming the facts here – we are in New South Wales, for argument’s sake, conviction is entered, then set aside by way of annulment, and say a man is making an application for a job which depends upon whether or not he has been convicted, could he truthfully answer, “No, I’ve not been”?

MR WILLIAMS:   On the primary construction of the Appeal and Review Act, in our submission, no.  If the person is asked a purely factual question in the way that we say that 44(ii) poses a purely factual question, then the factual answer must be that the person has been convicted but it has been set aside.

NETTLE J:   To take it one step further:  if appointment to a position depended upon having no prior convictions and a man’s conviction has been set aside, would he be excluded from appointment?

MR WILLIAMS:   That, I apprehend, might be a different question because the person does not at that point have a prior conviction.

NETTLE J:   Because it has been annulled.

MR WILLIAMS:   Yes.  It is a different factual question to:  have you ever been convicted?

NETTLE J:   So it determines his criminal status, as it were, up to the point of annulment, but after that the criminal status resumes, being no conviction.

MR WILLIAMS:   That is so.

NETTLE J:   Thank you.

MR WILLIAMS:   It has a factual subsistence up to the point of annulment ‑ ‑ ‑

NETTLE J:   And determines his status for that period.

MR WILLIAMS:   Yes.

NETTLE J:   Thank you.

MR WILLIAMS:  We then in our fourth point start by referring, as we do in paragraph 19 of our written outline – if the Court has that available – to Justice Windeyer in Cobiac v Liddy. In paragraph 19, we quote we hope accurately enough the effect of his Honour’s observation. The word “conviction”, although part of the vocabulary of English law for centuries, takes its meaning in effect in a text such as the Constitution from the quote in which it appears and on the policy and purpose of the Constitution as made manifest by its language. Given the protean nature of that term, we point to the necessity for certainty and speed of results in the determination of the Constitution of the Houses of the Parliament in the points that we make at (b), (c) and (d).

We refer in respect of certainty and speed of results to Sykes v Cleary 176 CLR 77. The first reference is to page 100. The passage begins at the top of the page and we rely upon the whole page. We emphasise in particular the words in the middle of page 100:

“shall be incapable of being chosen” refer to the process of being chosen –

to the necessity for certainty at each of the relevant points if the electors are to be placed in a position where they can make an informed choice among candidates who necessarily must be ascertainable at that point.  That, we submit, favours a construction that focuses upon the factual position rather than a legal position that may be ascertainable only several years later.

We refer also in that respect to Justice Brennan at page 108 who relevantly agrees with Chief Justice Mason and Justices Toohey and McHugh, at the foot of 108, as to incapability. We refer also to page 130. At the foot of 130 Justice Dawson also agrees with the plurality and at 132 Justice Gaudron, at about point 6 on the page, also agrees with the plurality. The true choice mandated by the Constitution is that which we say is referred to in Lange 189 CLR 520, the passage beginning at 560. At about point 4 on the page there is a reference to:

the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch. Furthermore, because the choice given by ss 7 and 24 must be a true choice with “an opportunity to gain an appreciation of the available alternatives”, as Dawson J pointed out in Australian Capital Television . . . legislative power cannot support an absolute denial of access by the people to relevant information ‑

The passage we emphasis is, of course:

true choice with “an opportunity to gain an appreciation of the available alternatives” ‑

That is self‑evidently impossible when the electors do not know at the time of voting whether a candidate is eligible or not.  We then refer in point (d) to the practical concern about parliamentarians in gaol and in that respect we refer back to the debates that I went to a short time ago, the 1898 debates, and the passage at 2445 of those debates.

Now, for all of those reasons we submit that there is a vacancy and we submit for the relevant question to be answered in the affirmative.  We then turn to the question of what steps should be ordered by the Court if the Court reaches the conclusion for which we contend.  We submit that the vacancy should be filled by a special count of the ballot papers, such account being apt to ascertain a true legal intent.  We refer in that respect to Re Wood 167 CLR 145, the passage that begins at 166 – perhaps I should start on page 165, at the foot of 165:

But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter’s preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s. 16 of the Constitution invalidates the particular indication . . . that effect is denied to the voter’s expressed intention.

There is then a reference to the analogy with an unqualified candidate dying before the election or before the return.  In the middle of 166 there is a reference to “other methods” – a reference to the “Vardon litigation”.  But, the observation:

but a supplementary election is inappropriate and unnecessary in the present case.  It is inappropriate because such an election would fill the vacant place by what would be in effect preferential voting for a single member constituency, not by proportional voting for a multiple member constituency.  The manifest purpose of the proportional voting scheme of the Act would be liable to be frustrated if a further poll were taken in which the quota would be more than 50 per cent of the votes cast.

Then, at 167, below the reference to Hickey v Tuxworth there is the observation:

it is difficult to see how the election miscarried.  The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands.  If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination –

So, in short, the constitutional requirement that the Senate be chosen by the people raises the question of whether there is a true choice if ineligible candidates have been included in the field.  The conclusion is that the constitutional choice is not vitiated by the presence of ineligible candidates.  In a Senate election, choice can be ascertained even if there is an ineligible candidate – although, of course, the position in that respect might be different in a House of Representatives election.

Sykes v Cleary 176 CLR 77 makes that point. Perhaps, to start at page 102 – I will start a little earlier, perhaps on page 100. I am sorry, I have already referred to page 100. If I could take the Court through, then, to – on 101 the Court turns to the question of whether the election was absolutely void and on 102 there is a reference to the position. At the top of 102:

a vote indicated on the ballot paper for the deceased candidate is counted to the candidate next in the voter’s indicated order of preference . . . the situation in In re Wood was such as to warrant the conclusion that the special count would reflect the voters’ “true legal intent” . . . in the light of the group system of voting which applies in Senate elections, it was highly probably, if not virtually certain, that a person who voted for Mr. Wood would have voted for another member of his group, had the voter known that Mr. Wood was ineligible.

We say in that respect, your Honours, by reference to the AEC affidavit, that the fact that roughly 96 per cent of the votes received by Senator Culleton were received above the line for the party whose ticket he headed and somewhere slightly over 2,000 – 2,100 I think – personal votes received below the line is an indication that, in the present case, voter intention can be ascertained by reference and has not been distorted by the presence of an ineligible candidate.  So having referred at about point 3 to the fact had a voter known that Mr Wood was ineligible, the plurality continue:

The same comment cannot be made in the present case.  Here a special count could result in a distortion of the voters’ real intentions because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent.

There is then a reference to the submissions of Mr Rose, QC for the Electoral Commission who:

points out, the Electoral Act draws a distinction between House of Representatives and Senate elections in the case of the death of a candidate.  Section 180(2) provides that, if a candidate in a House of Representatives election dies between the declaration of the nominations and polling day, the election wholly fails, whereas, in the case of the death of a candidate in a Senate election between those days, s. 273(27) provides –

provided then, provides now –

that the votes should be counted with the preferences adjusted accordingly. The reasons which lie behind the drawing of that distinction have equal application to the drawing of a like distinction between the election to the House of Representatives and to the Senate of candidates who are disqualified under s. 44.

For completeness, if I could take the Court to page 90 where the argument of Mr Rose was succinctly set out.  The Electoral Commission there contended that the election should be “declared void” if Mr Cleary was disqualified.  There would be a distortion if a recount were ordered in that House of Representatives case:

Even if it can be assumed that the field of candidates would otherwise have been the same, many voters might have expressed different preferences if they had considered the field without Cleary.  Further, it cannot be assumed that if he had not been a candidate the field would otherwise have been the same.  A House of Representatives election, being for a single‑member electorate, does not involve the special considerations which apply to Senate elections and which led to the recount in In re Wood.  The Commonwealth Electoral Act treats House elections differently –

And there is then a reference to the provisions:

When one looks at the reasons for the different treatment in the case of deaths, it is seen why a different treatment is also appropriate in cases of disqualification ‑

as we submit here.  Your Honours, there are, I think, two matters of response to our friends’ outline that I should make.  The first is – this is to the outline filed yesterday.  In respect of paragraph 7, in the second sentence, we think that that rather overstates the agreed facts.  It is an agreed fact that Senator Culleton could not be sentenced to imprisonment in absentia but that does not go as far as the proposition attributed to the agreed facts here.  Until sentence, he was an absentee person convicted, or a person convicted in absentia, is subject to being sentenced. 

In the present case there was a warrant – a Bench warrant issued on 2 March for Senator Culleton’s arrest. The mere fact that it had not been executed prior to 8 August does not take him outside section 44(ii), and given the high constitutional purpose of the provision it can hardly be a correct construction that if a person were to evade arrest that would keep them outside section 44(ii).

But, in any event, even in absentia, Senator Culleton was subject to being fined in absentia, therefore, subject to a sentence for an offence, carrying a penalty of one year imprisonment or more and therefore, on any view, within the terms of the section.  There is also a reference in paragraph 8 in our friend’s submissions to section 364 of the Electoral Act and to the legislative mandate that the Court of Disputed Returns act in accordance with “the substantial merits and good conscience” of the matters.

That provision has a procedural focus, not a substantive focus, and does not liberate the Court from, plainly enough we would say, the obligation to apply the law.  We refer in that respect to Sue v Hill, the judgment of the Court in Sue v Hill 199 CLR 462 and if I could start with paragraph 42 in the judgment of the plurality, section 364 is noted and set out:

Provisions of this type are not inimical to the exercise of the judicial power of the Commonwealth.  They do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness ‑

and there is authority cited for that.  Then paragraphs 146 to 148 in the judgment of Justice Gaudron, her Honour refers in 146 and 147 to the provisions but then in paragraph 148:

Notwithstanding the terms of s 360(2) of the Act, the power to invalidate an election is not at large.  As has been seen, it is confined by s 362 of the Act.  It is also confined by ss 365 and 366.  Even allowing that the power to invalidate an election is confined by –

those sections:

ss 362, 365 and 366, ss 360(2) and 364 are, perhaps, more appropriate to an administrative tribunal than to a court.  However, in a context in which power is conferred on a court, they are to be construed on the basis that the powers in question are to be exercised judicially.

Justice McHugh in dissent, in paragraphs 223 and 224 took a different approach:

If it were not for the statutory context –

his Honour would have been inclined to:

hold that ss 360(2) and 364 purport to confer independent and additional powers . . . unfettered by legal rules ‑

reference to authority.  In 224:

However, when Div 1 is considered as a whole, I think that the purpose of the Electoral Act is to allow an election to be set aside on –

various grounds:

and not otherwise.  That being so, ss 360(2) and 364 are to be seen as ancillary to those specific powers.  They do not authorise the bringing of a petition –

And then in the closing sentence:

The fact that the decision of the Court is final and conclusive and that there is no right of appeal strongly suggests that the orders in each case are to be made on the basis of what the Court regards as the justice of that case and not by reference to a body of rules antecedently known to an appellate court.

Now, his Honour was in dissent and we submit in dissent in respect of this particular proposition.  Unless there are matters your Honours wish to raise, those are our submissions.

KIEFEL J:   Thank you, Mr Williams.  Yes, Mr King.

MR KING:   If the Court pleases, we would respectfully submit that the four questions referred by the Senate should be answered in the manner and to the effect that we have set out in the written submissions filed on behalf of Senator Culleton at paragraphs 1, 2 and 3.  And we submit respectfully, your Honours, there is both a legal reason and a discretionary reason as to why no vacancy has arisen.

If I can summarise the legal reason, it is in three parts. First, it being admitted that Senator Culleton has not been under sentence of imprisonment or any other sentence in respect of the matter alleged in the Court Attendance Notice at any time during the electoral process, he was not disqualified from taking up his place in the Senate under section 44(ii) upon the authority of this Court’s decision in Nile v Wood, in Chanter v Blackwood and as recently applied, we submit, in Roach v Electoral Commissioner.  I will call that our no relevant sentence point.

Our second point is that, by reason of the annulment of his conviction in absentia, he has been restored by the Court to his status ante quo with the result that for a second reason he was not disqualified because no conviction recognised by the law has occurred.  I will call that the relevant conviction point.

Our third point is that, even if those first two points are in error, yet at no time after 2 March 2016, the date that he was convicted in absentia, was Senator Culleton punishable by a term of imprisonment of 12 months or more within the meaning of section 44(ii), such that for that reason also his place has never been vacant. I will call that no relevant offence point.

Turning then to our first point dealing with no relevant sentence, can I just take your Honours to the evidence and the facts to support this aspect of the case.  It may be of assistance for your Honours to have regard to our chronology which we have prepared and provided to your Honours.  It refers to the court book and the evidence.

KIEFEL J:   That has been dealt with this morning, as you are aware.

MR KING:   Yes.  But leaving aside the way in which the issue has come to the Court, there is no doubt that there was acquiescence with knowledge of every person, including Senator Culleton’s opponents and electors at each level of the electoral process, as to what has occurred.  We respectfully adopt what Lord Justice Kennedy said in Fiona Jones Case about the significance that a Court of Disputed Returns, as distinct from the High Court, pays to the franchise.

If your Honours look at the chronology that we have prepared, it raises a query, a question, for which there has been no explanation proffered by the Attorney as to either the delay or the circumstances in which the matter has been referred to the Court.  And, in the absence of such an explanation, we respectfully submit, which good conscience requires, then, in our respectful submission, the answers that we propose to questions (a), (b), (c) and (d) should be adopted on that further or alternative basis.  If the Court pleases.

KIEFEL J:   Yes, thank you, Mr King.  Are there any submissions in reply, Mr Williams?

MR WILLIAMS:   Very briefly, your Honour.  At the risk of perhaps restating the obvious, the observations in Nile v Wood 167 CLR 133 were made in the context of the issues there being considered. The Court was of course there dealing with a pleading point. It becomes clear on page 137 where the Court at the top of the page sets out the terms of section 355, then makes the observation that:

If a petition does not comply with s. 355, s. 358 ensures that no proceedings may be had on it.

In other words, in the Court of Disputed Returns a pleading point is a good point.  Further down, about point 6:

The period of forty days fixed by s. 355(e) had already expired when the summons for directions came on for hearing.

Then page 138, at the foot of the first full paragraph, the petitioner’s failure to specify relief sought “cannot . . . be remedied by amendment”.  Then in the middle of the page:

The absence of a prayer for relief is not the only defect in the petition.  The petition is notable for a failure to “set out the facts relied on to invalidate the election –

Then in paragraph 2, a setting out of subparagraph (a), conviction “of the offence of obstructing shipping”.  Then in (b), conviction:

in 1972 of offences in relation to National Service, and served the term of imprisonment.

It is in that context that the observations on page 139 were made.  The reliance that was being placed by the petitioner in that case was upon conviction and service of a term of imprisonment in the second of the categories.  The observation that the Court made at 139:

The disqualification operates on a person who has been convicted of an offence punishable by imprisonment for one year or more and is under sentence or subject to be sentenced for that offence.

is incapable of being understood as limiting the operation of 44(ii) to a case of a person only under sentence.  The observations that are then made reflect the context that I have referred to at paragraphs 2(a) and 2(b).

Quick and Garran that our friend also referred to is worthy of an observation as to exactly what was being considered by the authors there.  At paragraph 146, the heading indicates the subject matter that they were there addressing:  “Or has been Convicted, and is Under Sentence for any Offence.” 

KIEFEL J:   I am sorry; what was the page?

MR WILLIAMS:   I am sorry, it is in Quick and Garran on page 492 of the commentaries.  It is the heading to paragraph 146.

KIEFEL J:   Thank you.

MR WILLIAMS:   So the authors were not there dealing with the subject to be sentenced when.  It is our submission that to the extent to which the

authors refer to the end of that first paragraph “undergoing sentence of imprisonment for the term of one year or more” is a misdescription of the terms of 44(ii), but it is correct.  The point being made is correct that once the sentence is expiated the disqualification no longer subsists.  Nile v Wood, of course, accurately states the effect of the paragraph.

Chanter v Blackwood requires only one reference. Our friend referred to page 63 and the observations of Justice Barton but only briefly. It should be noted that at 63 at about point 3 on the page, his Honour, after the reference to the Chief Justice, he is “in accord with the Chief Justice”, his Honour did:

not at present express any opinion (because it is unnecessary in this case) as to the construction to be placed upon the second paragraph of sec. 44 of the Constitution taken in conjunction with the provisions of the Electoral Act. 

The other passages to which my friend referred are simply incapable of carrying the meaning that he sought to attribute to them. Finally, can I refer to section 25(4), penultimately perhaps? The effect of 25(4) and its use of the present tense is that once an absent offender convicted in absentia is brought before the court, by its own expressed terms, the prohibition in 25(1) will not apply because the person will not be:

an offender who is being dealt with in his or her absence. 

The final point, our friends relied on section 47 of the Constitution. To the extent to which they place reliance upon the position “until the Parliament otherwise provides”, that is, disputed elections to be determined by the relevant House, it supports the construction for which we contend.

Insofar as it involves disqualification, a provision of that kind would more obviously involve a factual criterion than one to be determined upon the resolution of questions of law and certainly not one that depends upon fine questions of legal effect or validity.  Unless there are matters with which I can assist, those were our submissions.

KIEFEL J:   Thank you, Mr Williams.  The Court will reserve its decision in this matter and adjourn until 10.00 am on Friday, 9 December.

AT 3.34 PM THE MATTER WAS ADJOURNED