Re Parry; Re Lambie

[2018] HCATrans 12

[2018] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C26 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 STEPHEN PARRY

Office of the Registry
  Canberra  No C27 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 JACQUI LAMBIE

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 FEBRUARY 2018, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONOGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If it please your Honour, I appear with MS Z.E. MAUD for the Commonwealth
Attorney‑General in both matters.  (instructed by Australian Government Solicitor)

MR P.H. SOLOMON, QC:   If your Honour pleases, with MR C.O.H. PARKINSON, I appear for Mr Martin in the Lambie matter (C27/2017).  (instructed by Corrs Chambers Westgarth)

MS W.A. HARRIS, QC:   If your Honour pleases, I appear with MR A.G. CAMERON for Mr Colbeck in the Parry matter (C26/2017).  (instructed by DLA Piper Australia)

HIS HONOUR:   Thank you.  Mr Solicitor.

MR DONAGHUE:   Your Honour, the Attorney‑General submits that the Court should make both orders 1 and 2 in the summons filed on 12 December 2017, that is, orders declaring both Mr Steve Martin and Mr Richard Colbeck duly elected as senators for the State of Tasmania.  We rely for that purpose on one of the affidavits that I read before your Honour last Tuesday, being the affidavit of David John Molnar, affirmed on 12 December 2017.  Your Honour might recall that in paragraph 5 of that affidavit it reports the result of the special count that your Honour ordered occur in these matters.

HIS HONOUR:   Yes.

MR DONAGHUE:   The result being that Mr Colbeck was elected eighth in the order of preference and Mr Martin ninth in the order of preference.  The Full Court’s answer to the question in the Lambie matter on Tuesday afternoon has somewhat changed the landscape since this matter was last before your Honour.  On that occasion we were discussing the filing of additional evidence this morning to demonstrate that Mr Martin’s disqualification would not have an effect on Mr Colbeck’s election.

HIS HONOUR:   Yes.

MR DONAGHUE:   That was rather overtaken by the conclusive answer that Mr Martin was not disqualified so we do not have any evidence of that kind.

HIS HONOUR:   I understand.

MR DONAGHUE:   But of course that answer has removed the impediment that was perceived to proceeding to have both Mr Martin and Mr Colbeck duly elected and we say that on that basis there is a prima facie basis for both orders to be made.  The only matter I really need to raise with your Honour is that your Honour may be aware from media reporting that on Wednesday evening of this week, Mr Martin was apparently, according to press, expelled from the Jacquie Lambie Network party.  There is, of course, no admissible evidence before the Court to that effect and there is no party or person who has sought to be appeared to suggest that that event has any significance for whether your Honour makes the order.

In that respect, the position confronting your Honour is somewhat similar to that that confronted Justice Gageler when his Honour was filling the vacancy relating to Ms Larissa Waters when, at the equivalent stage in the proceeding, where an order was sought for the due election of the person identified by the special count there was press reporting to the effect that the candidate identified by the special count may himself be disqualified but there was no admissible evidence; there was no one with an interest seeking to advance the argument, and in those circumstances his Honour simply made the order.

The reason that I raise it, your Honour, is probably obvious in that it might be thought that if Mr Martin has in fact been excluded from the party, there is some analogy between this matter and the Kakoschke‑Moore argument that is to be run before the Full Court next Tuesday.  Our submission is in fact that there are significant differences such that your Honour need not be concerned about the Kakoschke‑Moore matter and if I can very briefly explain why.

Your Honour might recall that the orders that your Honour made on 24 January in the Kakoschke‑Moore matter reserving three questions for the consideration of the Full Court, being the matters to be argued next Tuesday, are all questions about the special count in that matter.  So there is a question should there be a special count?  If so, should Ms Kakoschke‑Moore be included in the special count and if there is a special count, should Mr Storer be included in the special count?

So all of those questions are directed to answering question (b) referred from the Senate about how the vacancy should be filled.  Your Honours declared that there is a vacancy and there is a debate about how the vacancy should be filled.

By contrast, in these matters, back on 8 December, your Honour has already answered questions (a) and (b) and the answer to question (b) was that there should be a special count of the ballot papers conducted in accordance with the detailed directions that the Court then made and there was a schedule, your Honour might recall, to those 8 December orders and in that schedule the very first of the directions was that a vote indicated on the ballot paper opposite the names of Stephen Parry and Jacqui Lambie be counted to the candidate next in the order of the voters’ preference and that the numbers indicating subsequent preferences be treated as altered accordingly.  So there was a special count conducted in accordance with the order of the Court where Jacqui Lambie’s was not included as a specific result of the direction of the Court. 

Ms Kakoschke‑Moore’s argument at the prior stage that there should not be a special count – is that, sorry, there should be a special count in which her name is included.  To the extent that Ms Lambie suggests that she is in an analogous position – and of course she is not here making that argument – the time to make that argument would have been on 8 December in appearing – seeking to be made a party to the reference and contending that your Honour should not order a special count or should order a special count in which her name is included.

She did not seek to be made a party to the reference, she did not advance that argument and, as a consequence of not having taken that course, the orders were made that were made, the special count occurred, Mr Martin was identified, everybody went off and had an argument before the Full Court about Mr Martin’s eligibility, all of which was a complete frolic, a waste of time, if the special count should have been conducted in a way that included Ms Lambie because, if that had happened, we never would have reached the Mr Martin issues that were litigated.

So really our submission, your Honour, is that if the point was to be raised in these matters, it should have been raised by a person with an interest to do so well earlier in the proceeding and that, that not having occurred, matters have moved on to the stage where a qualified candidate in Mr Martin has been identified.  There is no suggestion that there is any disqualification relevant to Mr Colbeck and so, a special count having occurred and having identified two qualified candidates, there is no reason why your Honour should not now proceed to make the order declaring both of those qualified candidates duly elected, that being the order that then allows both of them under 374 of the Commonwealth Electoral Act to take their seat in the Senate. 

Your Honour, can I hand up to the Court the order that we propose, which we have distributed to our friends.

HIS HONOUR:   Thank you.

MR DONAGHUE:   It is very simple.  We seek two declarations consistently with the terms of the orders sought in the summons.  The only additional matters are dealing with the situation of Mr Colbeck.  He has not yet, as we understand it, been made a party to the reference.  We submit that that should occur and, in the event that that does occur, we submit to an order that the Commonwealth pay Mr Colbeck’s costs of the proceeding.  The form of that order there in order 4 is exactly the same as the order that your Honour made in relation to Ms McCulloch and Mr Martin, so it just puts Mr Colbeck in the same situation as those parties.  Unless the Court has any questions ‑ ‑ ‑

HIS HONOUR:   There is one question, Mr Solicitor.  It is an issue through which we have been in part before as to whether Mr Colbeck should be declared to be elected as a senator to fill the place for which Mr Parry was returned.  I raise the question again because in preparation for today, which is to say last night, I returned to the question posed by the President of the Senate when he remitted the matter to the Court of Disputed Returns and it was in terms of who should be declared elected to fill the place for which X or Y was returned.

MR DONAGHUE:   Yes.

HIS HONOUR:   I know there were problems in the past, or at least the perception of a possibility of problems by reason of who should go first, but it does not appear in either of these cases that such problems exist, does it?

MR DONAGHUE:   Not yet, your Honour, is I think the only way I can answer that question.  I accept what your Honour says as to the form of the question referred by the Senate.  That form of question and in particular “as to the place” language is language that, as best we understand it, has its origins in this Court’s judgment in Re Wood when the order that - which was the first time a special count was conducted and it used that language “in the place” and it has been used consistently ever since. 

But it does generate the possibility that it would be thought that an order in those terms gives some legal significance to the place in the order of election, that is, if your Honour made an order in those terms, the question might arise, well, what is the place to which Mr Colbeck was – Mr Parry was elected or what is the place to which – and in our submission, it would be wrong to assume that the place in the order of election is the place in the Senate to which the senators elect are to be returned because our submission, when this issue arose in the Nash matter, is that the question of places in the Senate is for the Senate itself to determine and it has a bearing, as your Honour would understand, on the term length following a double dissolution.

So, our submission is that it is for the Senate to decide whether someone gets three years or six years.  In the event that it were to be said – and it has not been said by anyone in either of these two references – that your Honour should make an order that would have ramifications for the term length, then we would oppose an order in those terms and submit that your Honour should not make it because that would, in our submission, cut across a matter that is for the Senate.

It raises potential complexity in this way, that where the matter was raised in – it might perhaps be useful to ask your Honour to sit side by side – if your Honour will just excuse me for a moment.

HIS HONOUR:   Certainly.

MR DONAGHUE:   Yes, does your Honour still have the Courtney affidavit.

HIS HONOUR:   Yes.

MR DONAGHUE:   If your Honour could turn up both the Courtney affidavit and the Molnar affidavit, and when your Honour has the Courtney affidavit, if you turn to paragraph 60 on page 9 ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ and compare paragraph 60 on page 9 to paragraph 5 of the Molnar affidavit.  So on paragraph 60 of page 9, your Honour is looking at the table of results setting out the order of election in the original Senate election in Tasmania.

HIS HONOUR:   Yes.

MR DONAGHUE:   And in paragraph 5 the special count. 

HIS HONOUR:   Yes.

MR DONAGHUE:   So, looking down the order, you will see the first three positions are the same ‑ Abetz, Urquhart and Whish‑Wilson – but then when one gets to 4, Jacqui Lambie was originally declared fourth and Steve Parry fifth, Polley sixth, et cetera, down the list.  Your Honour only has to look at 4 through to 12 from the original count and at 4 through to 12 on the special count to see that there are a number of changes in the order of election.

What was said in the Nash proceeding was that what should be done was that the Court should make a series of declarations, in effect moving all of the people from their original position in the order of election to their new position in the special count, so not just an order in relation to the new people to be declared elected, but everyone was to be shuffled on the assumption that where one finished in the order of election reflected had significance for the term lengths. 

In our submission, there are evident difficulties in making orders that move returned senators around in that way, certainly without them being here and being heard if it were thought that that has ramifications for the term lengths.  But more fundamentally, your Honour, in our submission, it is just not right to equate position in the order of election with place and term length ramifications, because place in the order of election is a concept that can quite readily be moved, not just by disqualification, but by other matters.  So, there is a provision in the Electoral Act – does your Honour have the Electoral Act with you on the bench?

HIS HONOUR:   Yes.

MR DONAGHUE:   If your Honour turns to 282 of the Act – and I am really going to this just to try to illustrate the point.

HIS HONOUR:   Yes.

MR DONAGHUE:   One can have a Senate election that identifies the candidates who should fill the vacant places in the Senate.    What 282 then does is, having identified those senators, it then creates a capacity to have a further count held in order – in circumstances following a double dissolution, for the purposes of identifying the result that would have been achieved had there been a half‑Senate election instead of a full Senate election - for the purpose of generating a number that would indicate who the first six of the 12 senators following the double dissolution would be.

We put it on in Nash, your Honour – we have not put it before you now but the evidence shows that the answer that you get by conducting a count under 282 can produce a different order of election than the order that you get with the original count that returns the 12 senators.  So there is an evident problem in assigning much legal significance to that order of election because how you count depends on what answer you achieve.

So really, your Honour, the upshot of my submission on this point is that your Honour should make the declarations in the form that we sought

them, which is the form that the orders were made in the Nash matter declaring Mr Molan duly elected.  That having been done, if – and as Justice Gageler indicated in Nash – if a person with an interest to do so submits that that declaration is not sufficient to answer – to fully dispose of the answer that the Senate referred, then the person with the interest to do so can move for some further order and they can establish their interest and identify the order that should be made and in that event there will then be a crystallised issue that the Court can decide if it needs to determine in order to fully dispose of the reference.

But unless and until someone with an interest to do so seeks some further order beyond the order that they be declared duly elected, we submit the matter should be left in the hands of the Senate.  If the Court pleases.

HIS HONOUR:   Thank you.  Ms Harris.

MS HARRIS:   Your Honour, we support the Solicitor‑General’s submissions on this point.  We say that a declaration in the terms proposed by the Attorney‑General will be sufficient to dispose of the reference.  It certainly engages directly with the Court’s power in section 360(1)(vi) which is simply to declare whether any candidate has been duly elected who was not returned as elected.  Does your Honour have that ‑ ‑ ‑

HIS HONOUR:   I do, thank you.

MS HARRIS:   Now, as we look at the reference from the President of the Senate we understand why your Honour raises the question, but looking at the reference overall, we doubt, with respect, that the President of the Senate intended this Court to answer the question that your Honour has posed and as the learned Solicitor‑General has submitted, if it were the intention either of the President of the Senate or someone else to have this Court address that question then it could be done at a later time consistently with the approach that Justice Gageler took in Nash.

So, the making of a declaration in the bald terms, as it were, that are proposed today will be sufficient, we say, to dispose of the relevant question and directly engages with the Court’s power as it has been invoked sitting as the Court of Disputed Returns.

HIS HONOUR:   Thank you.  Mr Solomon, do you have anything to say?

MR SOLOMON:   Your Honour, we adopt the submissions of the Commonwealth Solicitor‑General.  Mr Martin seeks the declaration in the form proposed by the Commonwealth Solicitor‑General in his draft minute of order.  The summons filed naming as the parties to whom it is directed Mr Parry, Ms Lambie, Ms McCulloch and Mr Martin in the C27 reference

sought the narrower order and it is preferable for a court in the circumstances being discussed to make the narrower order, including because there may never be a further controversy - it is to be hoped there is not – and there is a prospect of any broader issue – there is a prospect of any broader order inadvertently touching upon third party interests.

For those reasons, the suitable declaration to be made is the one contained in the 12 December summons and now the draft minute of order.  If your Honour pleases.

HIS HONOUR:   Thank you.

In matter number C27/2017 concerning Ms Jacqui Lambie, on 8 December 2017 it was ordered that:

Questions (a) and (b) referred to the Court of Disputed Returns by the President of the Senate in his letter dated 15 November 2017 be answered as follows:

(a)there is a vacancy by reason of s 44(i) of the Constitution in the representation of Tasmania in the Senate for the place for which Ms Jacqui Lambie was returned;

(b)the vacancy in the representation of Tasmania in the Senate should be filled by a single special count of the ballot papers in accordance –

with directions which were more fully specified in the order. 

As was deposed to in the affidavit of David John Molnar, the Australian Electoral Officer for the State of Tasmania, affirmed on 12 December 2017, pursuant to the order of 8 December 2017 a special count was thereafter conducted in accordance with the directions given in the order, which established that the following 12 candidates, in order, would be elected upon application of the rules for counting set out in section 273 of the Commonwealth Electoral Act 1918 (Cth):

1         Eric ABETZ

2         Anne URQUHART

3         Peter WHISH‑WILSON

4         Jonathon DUNIAM

5         Helen POLLEY

6         David BUSHBY       

7         Carol BROWN

8         Richard COLBECK

9         Steven MARTIN

10       Lisa SINGH

11       Catryna BILYK

12       Nick McKIM

Of the abovementioned candidates, the first 11 were shown to have achieved the quota, namely, 26,090 votes.  The 12th candidate, Nick McKim, did not obtain the quota, but obtained 21,235 votes. 

As matters then presented, there was a possibility that Steven Martin was incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution. Since then, however, the issue has been resolved. On 6 February 2018, the Full Court held that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution. Other things being equal, therefore, it would be appropriate to declare that Mr Martin has been elected a senator for Tasmania.

On the matter coming on before me this morning, the Solicitor‑General of the Commonwealth on behalf of the Attorney‑General of the Commonwealth has made mention of recent press reports to the effect that very recently, Mr Martin was dismissed from the Jacqui Lambie Network party, thus creating a possibility of it being said, in the same way as it is contended in the matter of Kakoschke‑Moore, that the special count which has been undertaken is not an appropriate reflex of voters’ intentions.  But there is no appearance on behalf of Ms Lambie or any evidence in support of what is said to have appeared in the press, and no opposition to a declaration being made that Mr Martin has been elected.

I am not disposed to defer the making of the declaration by reason of the press reports, for a number of reasons.  First, Ms Lambie has been on notice of the orders which I made on 8 December 2017 since they were made and therefore on notice it was possible that Mr Martin would be declared as elected.  The time to contend that he should not be considered for election was on 8 December 2017 or very soon afterwards.  The uncertainty caused by Ms Lambie submitting herself for election on 2 July 2016, when she was incapable of being elected, has gone on for too long.  There must be an end to uncertainty caused by persons putting themselves forward for election when they are incapable of being elected and a return to regularity and order.

Secondly, as the Solicitor‑General points out, it has not been established that Mr Martin has ceased to be a member of the Jacqui Lambie Network party.  Although it appears that the press reports are to the effect that he was dismissed for disloyalty to Ms Lambie constituted of refusing to step aside to enable her to be appointed, there is no evidence of that or, even if there were, that it would be a valid basis for dismissal.

Thirdly, it is not disputed that Mr Martin was a member of the Jacqui Lambie Network party when he stood for election on 2 July 2016 or, that, unlike Ms Lambie, he was then, as he is now, capable of being elected.  That being so, it is hardly obvious that the special count would not be a true reflex of voters’ intentions, even if Mr Martin has ceased to be a member of the Jacqui Lambie Network party.

Fourthly, in contradistinction to the matter of Kakoschke‑Moore, which is to be heard by the Full Court next Tuesday, and which it might be thought is in some ways analogous to the circumstances which have arisen in this matter if Mr Martin has ceased to be a member of the Jacqui Lambie Network party, it is apparent that he did not cease to be so until after the special count was conducted in accordance with the orders of 8 December 2017 and his entitlement to be elected established in accordance with those orders.  By contrast, as has been submitted by the Solicitor‑General, in the case of Kakoschke‑Moore it is accepted that Mr Storer ceased to be a member of the Nick Xenophon Team party before, and the conduct of a special count of the kind ordered in this case was, from the outset, opposed on the basis that, and deferred pending determination of the question of whether, Ms Kakoschke‑Moore is eligible to be included in the special count.

In those circumstances, there being no dispute as to the contents or accuracy of Mr Molnar’s affidavit, and it having been held by the Full Court that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution, I am satisfied it is appropriate that Steven Martin be declared duly elected as a senator for the State of Tasmania.

Accordingly, in matter number C27/2017, it is declared that Steven Martin is duly elected as a senator for the State of Tasmania.

In matter number C26/2017 concerning Mr Stephen Parry, on 8 December 2017 it was ordered that:

Questions (a) and (b) referred to the Court of Disputed Returns by the President of the Senate in his letter dated 15 November 2017 be answered as follows:

(a)there is a vacancy by reason of s 44(i) of the Constitution in the representation of Tasmania in the Senate for the place for which Mr Stephen Parry was returned;

(b)the vacancy in the representation of Tasmania in the Senate should be filled by a single special count of the ballot papers in accordance with –

directions which are more fully specified in the order.

As was deposed to in the affidavit of David John Molnar, the Australian Electoral Officer for the State of Tasmania, affirmed on 12 December 2017, pursuant to the order of 8 December 2017, a special count was thereafter conducted in accordance with the directions given in the order which established that the following 12 candidates, in order, would be elected upon application of the rules for counting set out in section 273 of the Commonwealth Electoral Act 1918 (Cth):

1         Eric ABETZ

2         Anne URQUHART

3         Peter WHISH‑WILSON

4         Jonathon DUNIAM

5         Helen POLLEY

6         David BUSHBY       

7         Carol BROWN

8         Richard COLBECK

9         Steven MARTIN

10       Lisa SINGH

11       Catryna BILYK

12       Nick McKIM

Of the abovementioned candidates, the first 11 were shown to have achieved the quota, namely, 26,090 votes.  The 12th candidate, Nick McKim, did not obtain the quota, but obtained 21,235 votes.  Other things being equal, it followed that it would be appropriate to declare that Richard Colbeck has been elected a senator for Tasmania. 

As matters then presented, however, other things were not equal inasmuch as it also appeared that there was at least a theoretical possibility that in the event of it being found in other, then pending proceedings that Steven Martin was incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution, and of it being ordered that a further special count be undertaken, Mr Colbeck’s entitlement to be elected could be affected.

On 6 February 2018, the Solicitor‑General of the Commonwealth on behalf of the Attorney‑General of the Commonwealth moved on summons dated 12 December 2017 for a declaration that Richard Colbeck is duly elected as a senator for the State of Tasmania.  In addition to Mr Molnar’s affidavit, the Solicitor‑General relied upon an affidavit of Timothy John Courtney, an employee of the Australian Electoral Commission, affirmed on 5 December 2017, and an affidavit of Andrew Kevin Gately, also an employee of the Australian Electoral Commission, affirmed on 2 February 2018.  The application was supported by counsel for Mr Colbeck, who relied on an affidavit of Mr Colbeck sworn on 29 January 2018.

The affidavits of Messrs Courtney and Gately established to a high degree of probability, but not to the level of mathematical certainty, that Mr Colbeck’s entitlement to be elected could not be affected in the event of Mr Martin being held incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution. Consequently, I ordered that the further hearing of the application be adjourned to today to enable additional evidence to be gathered to establish with certainty that Mr Colbeck’s entitlement to be elected could not be so affected.

Subsequent events, however, have now surpassed the need for such further evidence. On 6 February 2018, at the conclusion of argument as to Mr Martin’s capacity to be chosen and sit as a senator, the Full Court held that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution.

There being no dispute as to the contents or accuracy of the affidavits on which the Attorney‑General relies or as to the contents or accuracy of the affidavit of Mr Colbeck sworn on 29 January 2018 and, it having been held by the Full Court that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution, I am satisfied that it is appropriate that Richard Colbeck be declared duly elected as a senator for the State of Tasmania.

Accordingly, in matter number C26/2017, it is ordered that:

1.Mr Richard Colbeck shall be allowed to be heard and shall be deemed to be a party to the proceedings, pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth).

2.The Commonwealth shall pay the costs of Mr Colbeck of the proceeding.

3.The Court declares that Richard Colbeck is duly elected as a senator for the State of Tasmania.

Ladies and gentlemen, is any further order or direction sought?

MR DONAGHUE:   No, your Honour.

MR SOLOMON:   No, your Honour.

MS HARRIS:   No, your Honour.

HIS HONOUR:   The Court adjourns sine die.

AT 10.07 AM THE MATTERS WERE ADJOURNED