Re Parry; Re Lambie

[2018] HCATrans 6

[2018] HCATrans 006

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 TUESDAY, 6 FEBRUARY 2018, AT 8.57 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honour, I appear with MS Z.E. MAUD and MR B.K. LIM, for the Commonwealth Attorney‑General.  (instructed by the Australian Government Solicitor)

MS W.A. HARRIS, QC:   If it please the Court, I appear with MR A.G. CAMERON, for Mr Richard Colbeck.  (instructed by DLA Piper Australia)

HIS HONOUR:   Mr Solicitor.

MR DONAGHUE:   Your Honour, we have asked the Court to list the matter for the purpose of asking the Court to make the order sought in paragraph 1 of the summons filed on 12 December 2017, that being an order that “A declaration that Richard Colbeck is duly elected as a senator for the State of Tasmania”.  I hope in support of that application your Honour has some written submissions from us dated 2 February.

HIS HONOUR:   I do, thank you.

MR DONAGHUE:   There are also three affidavits that are relevant and I read all of them.  The first is the affidavit of Timothy John Courtney affirmed on 5 December 2017, the second is the affidavit of David John Molnar affirmed on12 December 2017 and the third is the affidavit of Andrew Kevin Gately affirmed on 2 February 2018.

HIS HONOUR:   Yes.

MR DONAGHUE:   I need to take your Honour briefly to the first two of those affidavits and then in a little bit more detail to the third.  Could I start with Mr Molnar’s affidavit.  This is the affidavit sworn immediately following the conduct of the special count that your Honour ordered and it gives the result of the special count. 

If your Honour goes to paragraph 5, you will see there the result set out, which is relevantly for our purposes that in the eighth position Richard Colbeck was identified and in the ninth position Steve Martin was identified, Mr Martin being of course the Jacqui Lambie Network candidate whose eligibility is in issue before the Full Court later today.  Relevantly for present purposes, Mr Colbeck was returned before Mr Martin.

If your Honour then goes to the Courtney affidavit, could I invite your Honour to start at paragraph 15, really to note some background for the submissions I will get to shortly when we get to Mr Gately.  From 15 to 18 there is an explanation of the process for transferring surplus votes in the Senate and, in effect, the way it works is that the number of votes for an elected candidate in excess of the quota for the Senate position are identified as surplus votes. 

The surplus votes are transferred to the next candidate in accordance with the preferences expressed by the voter but because it is not possible to determine which votes are excess and which votes were applied to electing the first‑placed position, the way that the voting regime works is all of the ballot papers are transferred to the next candidate in the list of preferences but at a reduced value.

That is the concept of a transfer value, which is explained in paragraph 16, so that one determines that if, for example, a candidate had a quota of 20,000 votes – sorry, the quota was 20,000 and they received 25,000 votes, there is a surplus of 5,000.  Those 5,000 votes need to be passed down to the next candidate but the way that it works is that the 5,000 is divided by 20,000 to give you a reduced value for each individual vote and then all of the ballot papers are passed on.  So you pass on 20,000 votes each at a value of one‑quarter.

HIS HONOUR:   Is that the consequence of the algorithm that is used to sign it?

MR DONAGHUE: That is the consequence – yes, it is the consequence of section 273(9) through to (14) of the ‑ ‑ ‑

HIS HONOUR:   And that is why the theoretical possibility exists that the transfer value would different if Mr Martin were excluded?

MR DONAGHUE:   Can I come to that, your Honour?  That is part of it and that is why I am going to explain the concept here.  But, yes, that is why it is theoretically possible, for reasons I will develop in a moment.  But, for the moment, from Mr Courtney all I seek to have your Honour identify is in the last sentence of 16:

The transfer value of surplus votes is calculated by dividing the number of surplus votes by the number of ballot papers held by the candidate.

So, we pass them, in my example – all 20,000 – but at a transfer value of a quarter.  Then, in 17, basically it is noted that you just keep doing that successively down the list of candidates until all of the places have been filled.

HIS HONOUR:   Yes.

MR DONAGHUE:   The distribution of surpluses in that way happens before – and this is paragraph 18 – any candidates commence to be excluded.  So, you allow the votes to flow down and then if there are still not enough people who have reached the quota, the lowest person – the candidate with the lowest number of votes gets excluded.  Their votes get distributed, and so on.

Before leaving Mr Courtney’s affidavit, could your Honour just note paragraph 26 which identifies the people who appeared on the group nomination for the Liberal Party of Australia, Tasmanian Division, and you will see that there were six candidates on that group ticket.  Mr Colbeck was the fifth on that list.  But, if you note the names – Abetz, Parry, Duniam, Bushby and Colbeck – they are the Liberal people who were above Mr Colbeck which will help when we get to the table in a moment.

Finally, your Honour, at paragraph 46 and following, you get some facts about the Tasmanian Senate election – including at paragraph 48 – that there were a total of 339,159 formal votes cast.  Over the page at paragraph 49 that just short of 72 per cent of them were above the line and that the quota for the Senate election was 26,090.

The paragraphs that then follow, 51 and following, are all reflective of the original count which included both Jacqui Lambie and Stephen Parry and so they have been superseded by the disqualification of those candidates – the facts set out in 51 and following.

Can I ask you to turn from there, your Honour, to the Gately affidavit and, in particular, to the ‑ effectively this affidavit just as is explained in the last paragraphs, 5 through 7, attaches a report that the AEC prepared that explains the transfer and distribution of preferences as it occurred in the special count that your Honour ordered to occur.

If I could just spend a few moments explaining this table.  If your Honour starts at page 3 of the affidavit, you have there the first page of a single table that extends from pages 3 to 6.  And over pages 3 to 6 one can see set out in the columns across the page the names of all the Senate candidates in the left‑hand column and then the results of what are identified as the first preference votes, then counts 2, 3 and 4.

So we have the results for counts 1 to 4 spread out between pages 3 and 6.  And if your Honour looks at page 4 you will see the second name down, Mr Colbeck’s name, and the first preference vote for Mr Colbeck was 14,453.  Now, they, your Honour, are votes for Mr Colbeck below the line because he was so far down the Liberal Party ticket list that, at the first count, there had been no votes flowing to him from above the line position.  So he got a very large number of below‑the‑line votes, more than half of the quota, just in his own right.

If your Honour goes just back on to page 3, near the bottom of the page, you will see Mr Abetz’s name listed.  He, on the first preference count, had 92,752 votes identified there.  They are almost all above‑the‑line votes because he was the first name on the Liberal Party ticket.

If your Honour goes to page 6 - this is the bottom of the table dealing with counts 1 to 4 - you can see at the bottom under each column there is a statement of what actually happened in that count, so in count number 1 there were three candidates identified as elected - Abetz, Whish‑Wilson and Urquhart and they are the people who have the quota on the initial vote.  They were the top candidate on each of the respective lists of the Liberals, the ALP and the Greens.

HIS HONOUR:   I am sorry, did you say page 6?

MR DONAGHUE:   Yes, on page 6 under - does your Honour see where I am ‑ ‑ ‑

HIS HONOUR:   Yes, thank you.

MR DONAGHUE:   What then happened at count 2 - if your Honour goes along to the next description at the end of the column - is that Abetz’s surplus was distributed; candidate elected was Duniam who was the second candidate on the Liberal ticket.  Then you go across to the next column which is the third count - Urquhart’s surplus was distributed; Polley was elected and going to count 4, Whish‑Wilson’s surplus was distributed. 

So, in effect, what is happening is on the first count we identify all of the people who already have the quotas and then in counts 2, 3 and 4 the surplus votes for those candidates are passed on to the next person down the list, which resulted in Duniam’s election at count 2.  I pointed out, your Honour, that Abetz had 92,000 votes, so if your Honour goes back to page 3 and looks at the Abetz line again for the first column we have 92,752 and Abetz is elected.  When we then go to count 2 which we know is the distribution of his surplus, you see the minus 66,662 entry.

HIS HONOUR:   Yes.

MR DONAGHUE:   They are the votes in excess of the quota of 26,090.  So basically Abetz uses up 26,090 of those Liberal above the line votes and there are 66,662 to be distributed and they are distributed to Duniam who, as you can see in the bottom line on count 2, still on page 3, is elected.  Is your Honour with me?

HIS HONOUR:   Yes, I am, thank you.  I assume that Mr Duniam then wants – does his excess then go on to Mr ‑ ‑ ‑

MR DONAGHUE:    Sorry, if your Honour – for that we need to then move on to the next set of tables, counts 5 to 8 which starts at page 7, and if your Honour looks at count 5 which is on page 7 – actually, sorry, I should take your Honour to the bottom - those descriptions under the table, so that is on page 10 and you can see what happens at count 5 is that Duniam’s surplus is distributed to Bushby – does your Honour see that?

HIS HONOUR:   Yes.

MR DONAGHUE:   Then if you jump along to count 7 you will see that Bushby’s surplus is distributed to Colbeck at count 7 and Colbeck was declared elected.

Now, to actually see the numbers reflecting those descriptions, if your Honour goes back to page 7 you can see - sorry page 8 - at count 5 this is where Bushby is getting Duniam’s preferences.  He picks up 37,893 - these are the votes still flowing down from the - principally the votes flowing from the above the line Liberal Party votes. 

With the addition of those 37,893 Bushby is above the surplus.  He has 40,579.  Bushby is declared elected and then his surplus is distributed at count 7 which results in the addition of 14,489 votes to the primary vote Colbeck got in his own right below the line, the 14,324 votes resulting in Colbeck being elected at count 7 with a total vote of 30,737 votes which is 4,647 above the surplus.

HIS HONOUR:   Just pausing there, each of those transfer values is one for one as it were.  How can it change in the subsequent - theoretically at least - in the subsequent recount?

MR DONAGHUE:   It can only change theoretically, your Honour, because the transfer value is the surplus as the numerator over the total number of ballots that have been assigned to the candidate as the denominator.  As the ballots flow ‑ ‑ ‑

HIS HONOUR:   I understand.

MR DONAGHUE:   ‑ ‑ ‑ they have a transfer value attached to them which depends on how big the surplus of the previous candidate was.

HIS HONOUR:   Well, can I ask you another question?  As I perceive it, both late last year and early this year, from these affidavits, these special counts are done fairly quickly, in terms of time, by reason of the computer program and the ability of the people that operate them.

MR DONAGHUE:   Yes.

HIS HONOUR:   Why cannot there be two simulations - one with Martin excluded and one with Mr Colbeck excluded to see what the position would be?

MR DONAGHUE:   I think with Mr Waterman excluded, I think, indeed.  Your Honour, it is theoretically possible to do that and I believe my learned friend, Ms Harris, will ask your Honour to do that in the event that you are not prepared to make the order that we have sought today.

HIS HONOUR:   Well, I appreciate there is a massive expense or time delay involved. It may not be practicable but if it appears it is a fairly quick exercise by people who are, as it were, in‑house within the Electoral Commission.

MR DONAGHUE:   Yes.  Your Honour, my instructions are that an order of that kind should not be made with the AEC having an opportunity to appear to be heard on the matter.  I hold those instructions because the AEC is, as I understand it, very opposed to undertaking dummy counts or counts that are not real and so, ultimately of course, if your Honour orders them to do so, they would so, but they are not prepared to volunteer a count of that kind.

There are, as I understand it, people in the community at large who have written software that exactly simulates the AEC counts.  There is one gentleman in particular who has a program that has accurately represented the Senate counts at the last few elections and on all of the special counts that have been ordered, so it would be possible, if he were prepared to do it, to run that simulation.

Ultimately, your Honour, our primary submission is that your Honour does not need to go there because, in summary, for this reason:  that your Honour can see from what I have taken you through already that looking at how Mr Colbeck gets elected on the special count is elected with 14,324 direct votes below the line for him, which cannot possibly be disturbed by anything that happens to anyone else and that the balance of his votes were that 14,324 votes that were distributed to Colbeck from Bushby, flowing straight down the Liberal ticket.

Now, the only way, even in theory, that it is possible for there to be any effect on those 14,324 votes, which have to flow to Colbeck, is if their transfer value were decreased enough to eliminate that 4,647 surplus that Colbeck has there.  So that 4,647 number I am giving your Honour is the amount by which Colbeck’s 30,737 votes exceeds the quota.  So he exceeded the quota by a lot.  So you need to devalue those 14,324 votes by a third in order to disturb Colbeck’s election.  And to do that, bearing in mind, your Honour, that I have said that the transfer value is the surplus – is the enumerator over the total number of ballots as the denominator – you need a massive increase in the denominator.

So the exclusion of Martin and Waterman would need to result in a very large number of votes flowing to Bushby.  But not only that – and this is why we said it was completely unrealistic assumptions – not only do a very large number of votes have to flow to Bushby, they have to flow to Bushby but not then to Colbeck.  And because Bushby and Colbeck are on the same ticket, any above‑the‑line vote that flows to Bushby will necessarily also flow to Colbeck, so it cannot create the distortion.

So to get the distortion you need a massive number of below‑the‑line votes where the voters happen to cast their votes in such a way that they preference all of the votes to go to Bushby and none of them to go to Colbeck.  And the bottom line of our submission – I can take your Honour through the detail; it is a little bit tortuous, but I can take your Honour through it if it would assist – is that there just are not enough votes cast for Martin and Waterman to produce an addition to the denominator for Bushby, to add enough votes for Bushby.  We are talking about needing to add about 30,000 votes.

HIS HONOUR:   Are you putting that to me on the basis that, if one follows through the numbers sufficiently well, it can be demonstrated as a matter of mathematical certainty that the possibility could not occur?

MR DONAGHUE:   I am not putting it that highly because, to do that, one needs to model a very large number of possible combinations.  I am putting it on the basis that if one looks at the only candidates who appear plausible, the people who were even remotely – well, let me back up a little.  I am putting it on the basis that Martin and Waterman alone do not have enough votes themselves.  It is mathematically impossible for them alone to disturb Colbeck.  So what you need to do is introduce an additional level of complexity which says that if you eliminate Martin and Waterman, their votes elect someone else ahead of Bushby – some different candidate ahead of Bushby – and then the preferences from that person flow to Bushby but not to Colbeck.  And it is only if you get that happening that it is mathematically possible and, in the end, one ends up building in so many extremely implausible assumptions that we submit that your Honour does not need to be concerned, but I cannot prove it as a matter of mathematical certainty.

HIS HONOUR:   If you simulate the removal of the two candidates, you can.

MR DONAGHUE:   You could.

HIS HONOUR:   Which is a matter of, what, a day or days away?

MR DONAGHUE:   The evidence of Mr Courtney – at the time of the original special count – was that it takes the AEC about an hour to do it if they do it. 

HIS HONOUR:   And, the other chap that is in the community of whom you spoke, is he capable of doing it at the same speed if the Commission is not ordered to do so.

MR DONAGHUE:   I think, possibly, yes.  Possibly even faster if he was prepared to do it.  It may be that my learned friend – that someone can persuade him to run the simulation if the AEC is not prepared to do it.  But, before, as I say, the AEC can do it, in my submission, they should be given an opportunity to be heard against that.

HIS HONOUR:   Plainly.  I have read your submissions very closely, Mr Solicitor.  It appears to me there is a point of distinction between this case and what occurred in Gichuhi and that what was there was unsubstantiated allegations of lack of qualification whereas here it is apparent, on the evidence, there is at least the theoretical possibility and conceivably, without proof to the contrary, a real possibility that Mr Colbeck would not be the appropriate candidate declared to fill the place.

MR DONAGHUE:   Your Honour, I certainly accept a theoretical possibility.  Our submission is that, on the numbers, it is so low that it could be discounted.  But we did feel, in the interests of full disclosure, we needed to explain that the intuitive position that it was impossible for someone lower down the candidate to affect the votes is not right for the reasons that I have endeavoured to explain. 

HIS HONOUR:   It may be my lack of mathematical capacity – it is 40 years since I did much that way ‑ but, if we can persist and it can be demonstrated, then I am prepared to do so, if not now, then later today.  But if, at the end of the exercise, you taking me through it as you have started to do, there remains a possibility that I cannot assess the magnitude of it, I must say I would disinclined to make the declaration which is sought until and unless we get the evidence that I speak of.

MR DONAGHUE:   I understand that, your Honour.  The end point of my submission will not be a submission that your Honour should be satisfied that I have established as a matter of mathematical proof that Colbeck cannot be disturbed.  It may well be that your Honour would be satisfied that the prospect is very small but I cannot take the final step of eliminating that and I appreciate what your Honour says to me in terms of the fact that a simulation might remove that area of lingering doubt.

HIS HONOUR:   I do understand the urgency.  If this can be done quickly, then we can have another hearing quickly.

MR DONAGHUE:   I do not know how quickly it might or might not be possible to have the gentleman in the community run the simulation.  In terms of the AEC, we notified them of what I would say to your Honour this morning – told them that if your Honour were minded to go down this path, they might need to appear before your Honour quickly so it would really be a matter of when your Honour was minded to list it and no doubt the AEC would appear on that occasion.   

HIS HONOUR:   Thank you, very much.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   I might hear from Ms Harris.  Ms Harris, you have heard what has been said.

MS HARRIS:   Yes, your Honour, and I am going to seek to persuade your Honour that even the mathematical possibility does not exist because there is, with respect, a flaw in the logic as it has been explained to your Honour which demonstrates that the transfer value can, actually, never go down.  It can only go up if Mr Martin is eliminated.  That is because, basically – and I will come back to the sections, your Honour, and also to the evidence – but the effect of the elimination of Mr Martin is that his votes would go to other candidates thereby increasing the surplus of those candidates, relevantly, and the total number of votes – in other words, increasing both the numerator and the denominator by the same amount.  If both the numerator and the denominator go up, the resulting percentage can only be higher.  In other words, the transfer of those votes can only be at a number which is higher.

With respect to our learned friends, and we are grateful because we now understand the reference in their submissions to the transfer value going down, that would only be so if the surplus went up but the denominator remained static, necessarily it cannot, because the numerator, being the surplus, goes up in the same amount as the denominator. 

HIS HONOUR:   Where do I get the evidence that tells me that that is so?

MS HARRIS:   Well, it flows from section 273(9), your Honour, of the Commonwealth Electoral Act but we can see it, it is easy to demonstrate, your Honour, if we look at Mr Gately’s affidavit – actually, perhaps we should start with Mr Courtney’s affidavit, your Honour.  So, Mr Courtney’s affidavit at paragraph 13 recites that in order to be elected “a candidate needs to gain a quota” and my learned friend showed your Honour that the quota in this election was 26,090 votes.  Then, just going back to the transfer of the surplus, at paragraph 16 this is explained, the fractional value is achieved “by dividing the number of surplus votes by the number of ballot papers held by the candidate”.

So, if another candidate is a beneficiary of votes for Mr Martin then those votes are added both at the surplus level and the total vote level.  In other words, they are added to both the numerator and the denominator.  Now, we say it is easy to see from Mr Gately’s evidence that Mr Colbeck’s position is effectively unassailable.  You saw, as my friend most ably demonstrated, that ‑ ‑ ‑

HIS HONOUR:   Just holding there, the number of ballot papers would depend, would it not, on who was excluded from the count?

MS HARRIS:   So, that is why I wanted to show your Honour that there are no exclusions from the count – do you mean whether it is Mr Martin or someone else?

HIS HONOUR:   Yes.

MS HARRIS:   Yes, your Honour, and that is an important point that has sort of been overlooked.  If someone above Mr Colbeck had been excluded, it could affect his position, it could affect his position, we accept that, but if someone below Mr Martin is excluded, that is, if he reaches the quota off the back of votes which clearly preferenced him ahead of Mr Martin then his position is unassailable because all of those votes will still come to him.

HIS HONOUR:   Well, you say that ‑ ‑ ‑

MS HARRIS:   Can I demonstrate it, your Honour?

HIS HONOUR:   Yes.

MS HARRIS:   So can we go back to Mr Gately’s affidavit ‑ ‑ ‑

HIS HONOUR:   Yes.

MS HARRIS:   ‑ ‑ ‑ and my learned friend took you firstly to count 1, the results of which appear on page 6, where a number of candidates have been elected, either as a result of their first preference votes or the distribution of a surplus and the first three candidates are Mr Abetz, Mr Whish‑Wilson, Ms Urquhart and then Duniam and Polley.  So, the counts which follow involve the distribution of surpluses from those candidates, those five candidates, and we see the results of that in counts 5 to 7.  Now, as my learned friend and the affidavit material explains, the distribution of that surplus is to the next preferenced candidate on the relevant ballot papers ‑ ‑ ‑

HIS HONOUR:   Yes.

MS HARRIS:   ‑ ‑ ‑ and so, any votes transferred to Mr Colbeck, as part of that process, necessarily preferenced him in front of Mr Martin ‑ ‑ ‑

HIS HONOUR:   Yes.

MS HARRIS:   ‑ ‑ ‑ and that is not surprising for the reason that my learned friend explained, namely, that he was the beneficiary of a substantial number of first preference votes in his own right and then the flow through of the above‑the‑line votes on the Liberal Party ticket.

HIS HONOUR:   So, in your submission, it is apparent from what is here set out, that the transfer value of votes to Mr Colbeck, cannot be affected by the possible exclusion of Mr Martin or Mr Waterman?

MS HARRIS:   Indeed, your Honour, and I will come to Mr Martin’s exclusion in a minute.  But at this point, if we look at page 8, and the number of votes which Mr Colbeck receives on that transfer of surplusage, in order to well put him above the quota, necessarily, all of those votes preferenced him in front of Mr Martin.

HIS HONOUR:   You are talking about the 216 votes transferred to him on a count 5?

MS HARRIS:   I beg your pardon, no, on count 7.

HIS HONOUR:   Yes.

MS HARRIS:   Your Honour sees under “Votes Transferred (14,489)”, that is the votes transferred from Mr Bushby, immediately above him on the ticket ‑ ‑ ‑

HIS HONOUR:   Yes.

MS HARRIS:   ‑ ‑ ‑ and Mr Colbeck is the substantial beneficiary of those votes, as one would expect.

HIS HONOUR:   Well, if he gets 14,324 of them.

MS HARRIS:   Yes, he gets 14,324 extra votes.  So, those preferences flow directly to him from Mr Bushby and necessarily they were all ballot papers which preferenced him ahead of Mr Martin.

HIS HONOUR:   Does it not depend upon whether they are above the line or below the line votes that are transferred?

MS HARRIS:   It does not matter, your Honour, because they necessarily preferenced him in front of Mr Martin.  If Mr Martin was preferenced in front of Mr Colbeck, Mr Martin would have got those votes.

HIS HONOUR:   The transfer value to him depends by way of denominator on the number of votes he received in his own right, both above and below the line.

MS HARRIS:   So, there are two steps, your Honour.  The first step is who gets the votes, and the point I am making is that who gets the votes cannot change on a recount, cannot possibly change because all of those ballot papers were ones which preferenced Mr Colbeck in front of Mr Martin.

HIS HONOUR:   Well, that sounds logical, with respect, but as matters stand at the moment, I have got competing evidence ‑ what you are putting to me, as it were, by way of submission on this basis and what is said by the Attorney‑General as to a theoretical possibility of it at least altering a consequence of a changing transfer value.

MS HARRIS:   We cannot understand how it can alter the transfer value either, your Honour, and there is not any evidence, with respect, to that effect.  There is what the Attorney has referred to in submissions as a theoretical possibility.

HIS HONOUR:   It was hearsay evidence.  He says he was advised, by whom it is not disclosed but I assume it is the Electoral Commission or someone like that.

MS HARRIS:   Yes.  The problem, your Honour, is that we are grappling with a theoretical possibility that is not ‑ ‑ ‑

HIS HONOUR:   I agree; can we eliminate it?

MS HARRIS:   Yes.  And so if your Honour is not persuaded that it is actually an impossibility, then we with respect anticipated and embraced your Honour’s suggestion about a special count.  Might I hand up some proposed orders which we have already provided to our learned friends.

Can I say this about the need for the Australian Electoral Commission to be represented?  With respect, we say that that is unnecessary and we do so for several reasons.  The first reason is that Mr Courtney has already deposed in his affidavit of 5 December to the ease with which the process may be undertaken and your Honour will see that at paragraph 75.

HIS HONOUR:   I am convinced of that.  I gather the objection is one of charter obligations and exceeding them.

MS HARRIS:   And so, your Honour, this Court has an undoubted power to make the order.  Obviously the question – and it is important to get the question right – is whether Mr Colbeck has been duly elected.  That is the only question that the special count would be directed towards answering. 

So there is nothing theoretical about it.  It is not a dummy count.  It is not a hypothetical count because it is directed towards establishing that Mr Colbeck has actually been elected.  That is obviously a question that arises on the reference from the Senate.

Your Honour has the power to make such a direction under section 360(1)(vi) of the Commonwealth Electoral Act.  It directly engages with the third of the questions raised for the consideration of the Court of Disputed Returns by the Senate, namely what other directions and orders, if any, should the Court make in order to finally dispose of the reference.

HIS HONOUR:   Just pausing there, other things being equal, we could now say with certainty that Mr Colbeck has been elected.  The difficulty arises because of the possibility, at least theoretical, of Mr Martin and Mr Waterman being excluded in as much as they were taken into account in the special count, which has resulted in the interim conclusion that Colbeck should be elected.

MS HARRIS:   Indeed.

HIS HONOUR:   Do not we need a simulation by someone who knows what they are doing to indicate that with certainty Mr Colbeck would still be returned even if Martin or Waterman or both were excluded?

MS HARRIS:   At the moment, Mr Colbeck has not been declared as elected.

HIS HONOUR:   No.

MS HARRIS:   There has been a special count that indicates that he should be elected but the very question on the summons is:  has he been elected?

HIS HONOUR:   Yes, it is.

MS HARRIS:   Now, if it be demonstrated by evidence that there is no universe in which his position could be assailed, then that question must be answered yes.

HIS HONOUR:   All right.  Now, if we can get some evidence that, if Martin were excluded or Waterman were excluded or both were excluded from the special count, Colbeck would still be returned, I would be delighted to make the declaration which is sought.

MS HARRIS:   And so that is the purpose of the orders that we have handed to your Honour.  What I was seeking to persuade your Honour of was that despite our learned friend’s deference to the Australian Electoral Commission, if so directed by this Court, it would undertake the count and it would ‑ ‑ ‑

HIS HONOUR:   What about the alternative man?

MS HARRIS:   We have no knowledge of the alternative man and we certainly have not been in touch with him.  If your Honour were to hear from our learned friends that they have and they propose to put forward an affidavit from that gentleman, then that might solve the problem, but times are ticking.

HIS HONOUR:   All right.  Let us do that.  Mr Solicitor, I am not particularly disposed to order the Electoral Commission to do what they do not want to do if it arises out of a concern about their charter obligations and the limits of them.  If there is another mathematician or actuary, whichever be the qualification available, who can perform the calculation rapidly, would that not be the appropriate course to get him to do it?

MR DONAGHUE:   If we can, your Honour.  I do not understand us to be in contact with him at the moment.  His material is available on the internet, so he often publishes counts of this kind.  Indeed, I think he has published one, excluding Mr Martin, but he has not published one excluding Mr Martin and Mr Waterman so we do not know what that would say.

HIS HONOUR:   That might be quicker than having arguments with the Electoral Commission about whether they should be ordered to do what is asked of them.

MR DONAGHUE:   That may be so, your Honour.  Could I suggest that perhaps the appropriate course would be to list the matter again at some point in the near future and, in the event that we ultimately – that I do not obtain instructions to do so or that the gentleman to whom I have referred is not prepared to do the count, then we might need to deal with the AEC issue at that stage, at that hearing, but we could advise the AEC ‑ ‑ ‑

HIS HONOUR:   I had in mind perhaps Friday morning.  Would that suit or are counsel otherwise engaged?

MS HARRIS:   Your Honour, we can always make ourselves available.

MR DONAGHUE:   Likewise, your Honour.

HIS HONOUR:   Would that be enough time to get the mathematician lined up?  I would hope that we could get the evidence and make the declaration on Friday.

MR DONAGHUE:   If we can, your Honour.  We, like your Honour, are very conscious of the timing imperative, so we will certainly move as quickly as we can.  If we cannot do it then, it will be necessary for the AEC to resolve the issue.  But if your Honour were to order that they should conduct the count in those circumstances, it may be that they could do it or one would expect they could do it very quickly thereafter, so it may be possible to bring it to a head on Friday one way or the other.

HIS HONOUR:   All right.  Although it sounds satisfactory in some respects, I am going to adjourn the further hearing of the application until next Friday at 9.30.  I am not sure where you will be, Mr Solicitor, whether here or back in Melbourne or Ms Harris.

MR DONAGHUE:   I do not know, your Honour.  It may be that I will be in Melbourne, if that is acceptable to your Honour.

HIS HONOUR:   Certainly.

MS HARRIS:   I was going to say the same thing.  If your Honour is disposed to a video hearing, that would probably suit us.

HIS HONOUR:   Either way, we can line things up by video link.  It seems to be the way of it these days.

MR DONAGHUE:   Thank you, your Honour.

MS HARRIS:   Thank you.

HIS HONOUR:   I will adjourn the further hearing of this matter until next Friday at 9.30 am Melbourne time.

AT 9.39 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 9 FEBRUARY 2018