Re Parry; Re Lambie

[2017] HCATrans 258

[2017] HCATrans 258

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

FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON WEDNESDAY, 13 DECEMBER 2017, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear for the Commonwealth Attorney‑General.  (instructed by the Australian Government Solicitor)

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

MR C.R.C. NEWLINDS, SC:   If your Honour pleases, I appear for Ms McCulloch.  (instructed by Holman Webb Lawyers)

HIS HONOUR:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honour, we filed yesterday afternoon an affidavit of David John Molnar, affirmed yesterday, reporting the results of the special count that was conducted yesterday morning.  As anticipated, that special count did result in the identification of Mr Steve Martin as one of the people who should fill one of the two vacancies in the Senate representation of Tasmania.  Consequent upon that, we have filed a summons seeking orders for the due election of Mr Colbeck and Mr Martin and we are now back before your Honour for directions in relation to that summons.

We filed some submissions yesterday afternoon that had some orders attached to them.  There are some slight modifications I would seek to those orders, and indeed I will hand up that document to your Honour and I will identify the changes.  I am not sure to what extent these have made their way to my friends, but I do not think they are contentious.

HIS HONOUR:   Thank you.

MR DONAGHUE:   The first change is in order 4 where we have proposed changing the date for Ms McCulloch’s submissions from 12 January to 15 January.  That is a change we made at the request of Ms McCulloch’s counsel and we understand them to be content with that date if your Honour is content with the change.  So, that is a Monday.  The Attorney’s submissions and Mr Martin’s submissions would then be due the following Monday, the 22nd, with the reply on Thursday of that week, the day before Australia Day, meaning that the matter would be ready at any date in the week of 29 January to go before the Full Court.

The other change is to paragraph 12 and following.  Paragraph 12 of the order we had attached to our submissions proposed that the reference be listed before the Full Court on the first available date after the 25th.  We thought perhaps that was not sufficiently precise in circumstances where your Honour has already answered two of the questions asked in the reference and we proposed instead to adopt the form that was used in the Nash reference to raise the Hollie Hughes question which was to reserve under s 18 the question whether a specific order that we had sought in the summons should be made, and that order sought in paragraph 2 is the order that Mr Steve Martin be declared duly elected.

So, it would be that question that would be referred for the consideration of the Full Court.  Then we made a consequential change to the next order, so that it be that question that be listed before the Full Court rather than the reference more generally.

The last change is that in the version originally – actually I am not sure if it was in the version that we sent to your Honour, but in the version we circulated to our friends there was a costs order included which we have deleted because your Honour made the costs orders on the last occasion when we were before your Honour.

HIS HONOUR:   No, you had deleted it before you provided it to me yesterday.

MR DONAGHUE:   I think we deleted it before your Honour ever saw it, but for our friends’ benefit that order has gone.  So, subject to anything from the Court or from our friends, that is the way that we propose that your Honour proceed.

HIS HONOUR:   Mr Solicitor, this question that it is proposed to reserve for the Full Court, might it affect the position of Mr Colbeck in Matter C26?  This is the three‑ or six‑year term question in Re Nash (No 3), is it not?

MR DONAGHUE:   That is right.  We were not proposing to move on the summons with respect to Mr Colbeck until the three‑ or six‑year issue was resolved.  While we have filed a summons that seeks that order, as we said, I think, in the last paragraph of our written submissions, we do not think that the Court could make that order until the Nash issue is resolved.  It is possible ‑ ‑ ‑

HIS HONOUR:   It is possible that the outcome of the question proposed to be reserved could affect his position in the count, could it not?  That is to say, depending upon the answer given to the question as to the propriety of where one is placed, may it not also follow that he could be replaced in the order?

MR DONAGHUE:   I do not think so, your Honour, because Mr Colbeck was returned well higher than Mr Martin in the count, so the question of what happens to Mr Martin’s place, I think will not affect Mr Colbeck.  But I am concerned, as your Honour raises the question, that if your Honours were to say in answer to this proposed question that Mr Colbeck should be declared duly elected, that might cut across the Nash question, because the whole question in the Nash matter is whether an order of that kind should be – your Honour, I need to back up a step, sorry.  The order that was sought that gave rise to the Nash question was an order that an identified person be declared duly elected to the place for which Fiona Nash had been returned.

HIS HONOUR:   Yes.

MR DONAGHUE:   So that was what was sought in the summons.  We have not used those words in the summons now before your Honour; we have just sought an order that Mr Colbeck and Mr Martin be in effect duly elected.  The reason we made that change is that Justice Gageler suggested in the first directions hearing in the latest iteration of the Nash matter that perhaps the problem arose from the inclusion of those unnecessary words “in the place for which Ms Nash was returned”.  Justice Gageler raised with the amicus whether the whole problem would go away if those words were omitted, and the amicus is thinking about it.

HIS HONOUR:   It is possibly just kicking the can down the road, though, is it not?

MR DONAGHUE:   Perhaps, your Honour, but there is, in our submission, a very real question as to whether anyone other than the Senate has a role in determining the three‑ or six‑year issue.  It may be that the Court has a role in declaring who the people are, and the Senate then chooses who gets three and who gets six years.

HIS HONOUR:   That is an attractive proposition.

MR DONAGHUE:   That is certainly, your Honour, how the Senate views the position.  I am instructed by the Attorney‑General that in cases where someone has been returned to fill a vacancy following a proceeding in Court, the Senate has always dealt with that by specific resolution to the effect that the new person comes into one of the more junior spots, if I can call them that, so he gets a three‑year term, even if the person that they replaced is higher.  So the Senate has in the past regarded itself as the body that decides this question, and that also will be our position if the matter does go on to argument.

But, for present purposes, our intention is not that what the Court does in resolving Mr Martin’s status cut across Nash, we accept that it is necessary for that issue to be resolved unless the amicus withdraws the point.  If the amicus does take his Honour Justice Gageler’s suggestion as an answer to the problem, then the summons that we filed in this matter already conforms to what Justice Gageler has suggested and so there would be no issue.  If the amicus says the issue arises notwithstanding the changed form of the order sought in the summons, then I accept that it would not be appropriate for the Court here to order that Mr Martin be declared duly elected if it has not resolved that Nash question first.

So, all of that suggests, perhaps, that the question that is reserved should not be should Mr Martin be declared duly elected. It should instead be, is Mr Martin prevented from being chosen by reason of s 44(iv) of the Constitution. I am drafting that on my feet but that is the substance of the question that is intended to be raised and the Full Court could resolve that question without cutting across anything that may or may not happen in Nash.

HIS HONOUR:   Yes.

MR DONAGHUE:   I apologise for moving on the run there, your Honour, but the interaction of these matters is an ever‑shifting ‑ ‑ ‑

HIS HONOUR:   I well and truly understand.

MR DONAGHUE:   Yes.

HIS HONOUR:   I rather think Colbeck should nonetheless at least be served with this process so that he can make an informed decision as to whether he wishes to become involved and make submissions.

MR DONAGHUE:   Content to do that, your Honour.

HIS HONOUR:   Just allowing for the theoretical – no more than that ‑ possibility that one way or another, the outcome of this matter may affect the decision.

MR DONAGHUE:   We are content to do that, your Honour.  As I say, I cannot see how that could happen but there is no harm in us serving him and we will do that.  Does your Honour want to make an order to that effect or are you happy with my indication to that effect?

HIS HONOUR:   I probably should make an order to that effect so that he can see it in forming his decision as to whether to become involved.  I think, I probably also should keep Matters C26 and C27, as it were, together so that they come back at the same time.  It may be unnecessary to do anything in C26 but, at least, the opportunity will be there to deal with them.

MR DONAGHUE:   We are content with that, your Honour, and, indeed, that is why we filed a joint summons in the two because of the possible inter‑relationship of the orders that might ultimately be made in them.  We thought that the question of Mr Martin and whether he holds an office of profit under the Crown is a distinct issue within those two matters but I have no objection to them staying together.

HIS HONOUR: Yes. Is that a sufficient drafting of the question, do you think? “Is Mr Martin prevented from being chosen by reason of section 44(iv) of the Constitution?” It seems to me it probably is.

MR DONAGHUE:   Can I just have a moment?

HIS HONOUR:   Yes, of course.

MR DONAGHUE: Perhaps it would be better reformulated as: is Mr Martin incapable of being chosen as a Senator by s 44(iv) of the Constitution? I think that captures it. And, that follows fairly closely the wording of s 44.

HIS HONOUR:   Yes.  Thank you, very much.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Mr Solomon.

MR SOLOMON:   Your Honour, three matters, two of them minor, let me deal with the minor matters first.  The parties envisage that there will be no complexity in agreeing agreed facts and the date reflects that assumption.  In the most unlikely event that there presents as some form of minor stumbling block on that issue, we would either need urgently to return to your Honour next week or otherwise have a mechanism to sort it out.  I am not seeking that the date change‑ ‑ ‑

HIS HONOUR:   No.

MR SOLOMON:  ‑ ‑ ‑ or that your Honour should apprehend that that will occur. It would not be an issue save for the circumstance that the date is realistically the second last sitting date of the year. I am not inviting your Honour to change the date. I am noticing the prospect of that minor scenario. Secondly, the incorporation of Pt 44 will include, among other things, the 20‑page limit on submissions.

HIS HONOUR:   Yes.

MR SOLOMON:   We thought it suitable, briefly, to draw attention to that.

HIS HONOUR:   It is a short point, is it not?  That is to say, it is unlikely that one would need more than 20 pages in order to express it.

MR SOLOMON:   The point is very short.  It depends how the parties deploy the Convention Debates, and the like, in argument and in writing.  But the point is very short.

HIS HONOUR:   All right.  Let us go with 20 for the time being.

MR SOLOMON:   Thank you. The last point is this – we noticed in the directions yesterday that the question was unstated. For our part, we thought the iteration of the question was suitable because it could not be countenanced that any of the live issues, as we apprehend them, would cut across the relatively bland formulation of the summons that, absent a s 44(iv) inhibition, Mr Martin would be duly elected. If, however, the Court considers it suitable in a precautionary way not to have that question but to have the direct question, then we notice only this – the phraseology just proposed said, “Is Mr Martin incapable?”.

We do not, standing here, think that is inaccurate, but we would make sure that that is the only tense that may be relevant.  Whatever the answer is to that point, the words “or of sitting” should be added, I think, to the question so that attracts, in essence, precisely the language in s 44.

HIS HONOUR:   Yes.

MR SOLOMON:   Lastly, connectedly, if that is the question that is to go to the Full Court, and if it transpires that the Full Court determines on the day to make orders in favour of Mr Martin ‑ and we will have 20 pages each and some time to agitate all of that in the New Year ‑ presumably that

means Mr Martin would otherwise need to move to obtain a declaration that he is duly elected.

HIS HONOUR:   Yes.

MR SOLOMON:   We are conscious that the Senate is returning on 5 February and the Court may be minded, if able, to list the matter in the week of 29 January and the consequence of changing the question, suitable as it may be, is that there would then need potentially to be an urgent process to enable Mr Martin to be heard on whether the Court should make that declaration.  That can all be managed suitably in the New Year but on the change of the question we thought it useful to mention it today.

HIS HONOUR:   Thank you.

MR SOLOMON:   Save for those matters, we consider the directions proposed by the Attorney‑General to be suitable and we have no further submissions to make to your Honour.

HIS HONOUR:   Thank you very much.  Mr Newlinds.

MR NEWLINDS:   Your Honour, the directions are suitable to us.  We think the point is a relatively confined one.  We think if the question as drafted by the Solicitor‑General this morning is appropriate and, if it is answered in the affirmative, we think it would follow that Mr Martin would be entitled to a declaration that he is elected.  If the answer is no, we anticipate that it would follow that there would be an order for another special recount.

HIS HONOUR:   Yes.  Thank you.

MR NEWLINDS:   Other than those observations, the directions are suitable and the matter will be ready after the 25th.

HIS HONOUR:   Thank you, Mr Newlinds.  The Court makes the following orders in matter C27 of 2017:

1.The Attorney‑General file and serve a notice of constitutional matter by 15 December 2017.

2.The Attorney‑General file and serve any statement of agreed facts by 4.00 pm on 21 December 2017.

I digress for a moment to observe that Mr Solomon has raised the prospect of perhaps some difficulty in agreeing upon facts and, if that be so, application can be made to me during the course of next week.

3.The Attorney‑General file and serve an application book on 22 December 2017.

4.Ms McCulloch and any intervener in support of Ms McCulloch file and serve annotated written submissions by 15 January 2018.

5.Mr Martin and any intervener in support of Mr Martin file and serve annotated written submissions by 22 January 2018.

6.The Attorney‑General file and serve annotated written submissions by 22 January 2018.

7.The parties agree an index to the joint book of authorities by 4.00 pm on 23 January 2018.

8.Ms McCulloch file and serve any annotated reply submissions by 25 January 2018.

9.The Attorney‑General file and serve the joint book of authorities in accordance with Practice Direction No 1 of 2017 by 25 January 2018.

10.Subject to any further or other direction, Part 44 of the High Court Rules 2004, with any necessary variations or adaptions, applies to this proceeding as if it were an appeal.

11.Service of documents may be effected by electronic transmission.

12.Pursuant to s 18 of the Judiciary Act 1903 (Cth), the following question be reserve for consideration of the Full Court: is Mr Martin incapable of being chosen or of sitting as a Senator by reason of s 44(iv) of the Constitution?

May I digress again for a moment?  Mr Solicitor, I should have asked you this before and I am sorry I did not.  Would it be necessary or desirable to add something to the effect “by reason that he was on certain dates the mayor of the city of whatever municipality it was”, or is it sufficiently identified?

MR DONAGHUE:   I think it is sufficient for your Honour to ask the question in those terms and then the factual material before the Court will identify the issue.

HIS HONOUR:   Thank you very much:

by reason of section 44(iv) of the Constitution.

13.The above question be listed for hearing before a Full Court on the first available date after 25 January 2018.

14.The Attorney‑General serve on Mr Colbeck a copy of the summons, the supporting affidavit and these orders on or before 20 December 2017.

15.Liberty to apply be reserved on 24 hours’ written notice.

Thank you, gentlemen.  Adjourn the Court.

AT 9.45 AM THE MATTERS WERE ADJOURNED