Re The Honourable Justice Sir Gerard Brennan, a Justice of the High Court sitting as a Court of Disputed Returns & Anor; Ex parte Muldowney

[1993] HCATrans 261

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IN THE HIGH COURT OF AUSTRALIA

Registry	No Cl4 of 1993
In the matter of -

An application for a Writ of

Certiorari and a Writ of

Mandamus against the

HONOURABLE JUSTICE

SIR GERARD BRENNAN, a Justice

of the High Court of

Australia sitting as a Court

of Disputed Returns

First Respondent

BRIAN COX, Australian

Electoral Commissioner

Second Respondent

Ex parte -

PATRICK KEVIN MULDOWNEY

Prosecutor

MASON CJ

Muldowney(2) 1 31/8/93

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 31 AUGUST 1993, AT 10.16 AM

Copyright in the High Court of Australia

MR G.C. CORR: If it please the Court, Your Honour, I appear

for the prosecutor. (instructed by Macphillamy

Cummins & Gibson.

HIS HONOUR:	Yes, Mr Corr.
MR CORR:	Your Honour, this, as you know, is an application from a decision of the Honourable Justice Brennan,
sitting as a Court of Disputed Returns. Before I
go any further, I would like to point out that
during my researches I have discovered that there are possibly some constitutional questions arising
from this case. There have not been 78B notices
filed or served as required. I am instructed that
dependent upon Your Honour's decision today, those
notices will be filed and served as soon as is
possible.
HIS HONOUR:	You had better tell me what these suggested

constitutional questions are because there is the

possibility under section 78B that I may not be

able to proceed with the matter until such time as notice in accordance with that provision is given.

MR CORR:  Indeed, Your Honour. The first one of these is

the question whether or not a Judge of the High

Court or a Judge of the High Court, sitting as a

Court of Disputed Returns, is an officer of the

Commonwealth under section 75(v) of the

Constitution.	I would submit that the Judge of the
High Court was.	There does appear to be some

dicta in another case, Your Honour, that does tend

to go against that decision.

HIS HONOUR:  Well now, what is that case?

MR CORR: This was in Federated Engine Drivers v Colonial

Sugar Refineries, (1916) 22 CLR 103, at page 117,

and there Justices Isaacs, Gavan Duffy and Rich

held that prohibition did not go to the High Court
on the basis that the - as I believe it - Judge was

not an officer of the Commonwealth for that

purpose.

HIS HONOUR:	Do you have a copy of the judgment there?
MR CORR:	No, I do not, Your Honour.
HIS HONOUR:	Is that view put on the ground that a Justice

of the High Court is not an officer of the
Commonwealth or is it put on the ground that the

High Court does not and cannot grant prohibition to one of its own members?

Muldowney(2)	31/8/93
MR CORR:	I think it may be on the latter point but it is

unclear.

HIS HONOUR:  Yes, because it is generally thought to be a

fundamental principle that the grant of a

prerogative writ by a superior court goes only to
inferior courts or tribunals and that a judge of a
superior court does not grant a prerogative writ to

another member of that court.

MR CORR: Indeed, though the distinguished authors, Quick

and Garran, in their volume on the Annotated

Constitution, considered that High Court Judges would be considered as officers of the Commonwealth

and therefore amenable to the prerogative writs.

HIS HONOUR:  Assuming that Judges of the High Court are

officers of the Commonwealth, it does not

necessarily follow that the 75(v) jurisdiction is

exercisable in relation to those Justices, for the
reason I have given to you, that the grant of

jurisdiction under section 75(v) is a grant of

jurisdiction in relation to officers of the

Commonwealth of other courts and tribunals.

MR CORR: Indeed. That then tends to come towards the

second possible point about constitutional

interpretation that I was going to bring up.

HIS HONOUR:  Now, before you leave that point. Is there any

recorded instance in the cases of the High Court

granting a prerogative writ to a judge of a State

supreme court exercising federal jurisdiction?

MR CORR: No. In fact, I think that was specifically

precluded in some cases. It was said that it could

not be done to a judge of a State supreme court

exercising federal jurisdiction.

HIS HONOUR:  And on what ground was that based?

MR CORR:  That they were not officers of the Commonwealth in

those cases.

HIS HONOUR: That was the only ground?

MR CORR:  I believe, from my reading of it or in my

researches, that was what I was looking for.

HIS HONOUR:  Yes, I think that is correct. Now, what is

your second constitutional point?

MR CORR: Well, the question, even if the prerogative writs

do not lie to Judges of the High Court, it is a

question of whether they lie to Judges of the High

Court sitting as a Court of Disputed Returns, and

that is dependent upon the constitutional status of

Mul<:lowney(2) 3 31/8/93

that Court of Disputed Returns and the manner in

which that power is invested on the High Court or
on Judges of the High Court.

Now, the original mention in the Constitution of resolution of disputed returns is in section 47 of the Constitution which is, I think, in Part IV

of Chapter I. That reads that:

Until the Parliament otherwise

provides ..... any question of a disputed

election to either House, shall be determined

by the House in which the question arises.

HIS HONOUR:	Yes.
MR CORR:	Now, since this is, in fact, something which can

be exercised by either of the Houses of Parliament,

the question arises whether this is, in fact,
resolution of disputes concerning elections is, in

fact, a judicial matter or whether it is something

ancillary to the legislative power and that,

therefore, what has been done is a delegation from
the Parliament of something ancillary to its

legislative power being delegated to the High Court

or to the Judges of the High Court.

HIS HONOUR: But, traditionally, has not the function

discharged by a Court of Disputed Returns been

regarded as an exercise of judicial power?

MR CORR:  Yes, that is the case, but merely because it has

been regarded so in the past and has not been

challenged does not necessarily mean that it is, in

fact, the case. I think that that was in fact the

passage of time - - -

HIS HONOUR:  But you have problems with this argument, do

you not, because it is well accepted that the

nature of the power is to be gathered partly from

the character of the tribunal or the officer in

which the exercise of the power is vested.

MR CORR:	Yes, indeed, because - - -
HIS HONOUR:	So that if you give the function to a court and

the court is constituted by a Justice of the High

Court of Australia, is not the conclusion almost

inevitable that the power is judicial?

MR CORR:  It would be possible for Parliament to delegate

something which is not judicial to the High Court

of Australia. In that case, because it is invested

in the High Court of Australia or a Justice of the

High Court of Australia, it would not make it

judicial, that you would have to, in fact, go back

and look at - - -

Muldowney(2) 31/8/93

HIS HONOUR: There is no doubt that Parliament can attempt

to vest in a Justice of the High Court of Australia

a function that is executive, but there can be no

obligation upon a Justice of the High Court of

Australia to discharge a function that is executive, at least if that function is not

consistent with the exercise of his primary

responsibility as an officer of a court exercising

judicial power.

MR CORR:	Yes, indeed.
HIS HONOUR:	It just seems to me this argument has very

flimsy prospects of success, Mr Corr.

MR CORR: Well, one question then arises, Your Honour, "Can

either of the chambers of Parliament exercise

judicial power?", because, surely, the resolution

of disputes concerning elections - the resolution
of either of those, whether it be resolved by
either of the chambers of Parliament or by the High

Court of Australia, the process is essentially the

same.

HIS HONOUR:  But it may not be the same and, in any event,

it is well recognized that there are a number of

functions which may be resolved either by means of

the exercise of judicial power or, alternatively,

by means of the exercise of executive power. There

are many cases, for example, in the area of

industrial relations where the question has arisen

whether a particular power that has been conferred

to resolve a dispute is one that is essentially

judicial in character or executive in character,

and it has been recognized in those decisions or

some of those decisions that it can be done either

way.

MR CORR:  Yes.

HIS HONOUR:  I just do not see the fact that disputed

elections may be resolved either by a House of the

Parliament or by the Court of Disputed Returns

indicates that the resolution by a Court of

Disputed Returns is an exercise of non-judicial

power.

MR CORR:  By itself, it may not be, but you would have to

look back at what exactly is being determined

within a resolution of dispute concerning

elections. Now, one question is whether it is

arbitral or judicial; whether it concerns current

rights or future rights as I think it has been

expounded, that if it is something which concerns

only future rights then it is arbitral rather than

judicial.

Muldowney(2) 31/8/93

Now, the question arises whether a dispute of

an election is concerning current rights or future

rights. I would submit that the determination of

who is to sit in Parliament is concerning a future

right rather than a current right and that,

therefore, the process which is being determined is

arbitral rather than judicial.

HIS HONOUR:  But what you are determining is the validity of

an election that has been held.

MR CORR:  Yes.

HER HONOUR: That if not future. That is a determination of something that has already occurred, something that

exists.

MR CORR:	Yes, but that is a fact which will determine a
future right, rather than something concerning a
past right or an existing right.
HIS HONOUR:	But there are many instances where courts make

orders, the orders being the source of future

rights as from the date of the order, where what the court does is an exercise of judicial power;

take cases under a Family Inheritance Act, for

example. You are determining, in those cases, a

jurisdictional matter to begin with, or what might

be described as a jurisdictional matter: did the

testator leave the applicant without adequate means

or adequate provision for future maintenance or

some issue of that kind? But the rights stem from

a court's order, the order the court makes. There

are no antecedent rights.

MR CORR: In those instances, Your Honour, perhaps it could

be considered as concerning rights that are in

existence or should be in existence, constructive

rights, as it were, at that stage.

HIS HONOUR:  Yes.

MR CORR:	Whereas in disputes concerning elections there are no rights until the situation is in fact resolved as to who in fact should be declared elected.
HIS HONOUR:	Yes, I understand the argument, but I must say

it does not seem to me to have great force,

Mr Corr.

MR CORR:  Yes, I take that on board, Your Honour. I would,

however, submit that the delegation of the power

from Parliament to the High Court of Australia of

the power to determine disputes concerning

elections is, in fact, unconstitutional.

Muldowney(2) 6 31/8/93

HIS HONOUR:  Are they the only constitutional points you

wish to argue?

MR CORR:	Yes, at this stage, Your Honour. I do not think
there are any others that necessarily arise from any of the points I wish to make.
HIS HONOUR:	What do you say about my ability to go on with

the case now that you have indicated you want to

argue those constitutional questions, having regard

to section 78B?

MR CORR:	I think that there is power within that section for you to continue if you believe that further
evidence can be heard outside of the
constitutional points which might determine the matter conclusively. Yes, section 78B(2)(c), a court:

may continue to hear evidence and argument
concerning matters severable from any matter

arising under the Constitution or involving

its interpretation.

Now, if Your Honour considers that those questions

can, in fact, be severed and the general points

about whether or not a writ will issue can be

severed from the points I have raised, then you are

entitled to continue.

HIS HONOUR:  But are the other points you want to argue

severable?

MR CORR:	They tend to be more on the grounds upon which I would be relying for the issue of the prerogative
writ, rather than - - -
HIS HONOUR:	A ground of preclusion.
MR CORR:	Though part of what I would be arguing as to the
in fact, derive in part from my submission about jurisdiction to award the prerogative writ does,
the second point, the constitutionality of the
delegation to the High Court.  But it is in a
reverse situation to it, namely that I would be
arguing that words would have to be read into the
Commonwealth Electoral Act which make it a valid
delegation from the Parliament and as a result of
which a prerogative writ would issue, rather than
basing itself on the fact that the delegation is
unconstitutional.
HIS HONOUR:	That is the difficulty, is it not? I mean to

the extent that you want to argue that the

delegation is unconstitutional - - -

Muldowney(2) 7 31/8/93

MR CORR:	Your Honour, it is more that I wish to argue that
certain words have to be read into the
Commonwealth Electoral Act which makes the
delegation to a Justice of the High Court
constitutional and that therefore a prerogative writ would issue, rather than arguing that the
delegation is unconstitutional.
HIS HONOUR:	What words do you want to read into the

Electoral Act?

MR CORR: It is in section 354.

HIS HONOUR:	What does it say?
MR CORR:	The High Court shall be the Court of Disputed
Returns, and shall have jurisdiction either to
try the petition or to refer it for trial to the Supreme Court of the State or Territory in which the election was held or return made.

I would argue that if it is, in fact, unconstitutional, that if in fact the power which

is being exercised is one which is ancillary to the

legislative power or is an arbitral power, that

delegation to the High Court would be

unconstitutional from the Boilermakers' principle.

But if, however, it is read that it is a delegation

to a Justice of the High Court, if that is read as

being delegation to the Justices of the High Court,

that following the decision of the majority in

Hilton v Wells, then it would be constitutional but

that in that instance I would argue that the

Justice of the High Court is not acting as a

Justice of the High Court - - -

HIS HONOUR:	But as a persona designata?
MR CORR:	Yes, indeed, and would therefore be amenable to a
prerogative writ being issued.

HIS HONOUR:  Your only basis for that argument would be, in

a sense, the success of your argument that the

Court of Disputed Return does not exercise judicial

power. In other words, unless you had that as an

accepted background proposition, there would be no

reason for reading section 354 in that way.

MR CORR: Indeed, Your Honour, unless you decide at some

prior point that a prerogative writ does in fact

go to a Justice of the High Court of Australia, in

which case the point would not be raised anyway.

HIS HONOUR:  Mr Corr, coming back to this question whether

there is any point in this case that is severable

from your constitutional points, would you agree

that the question whether Justice Brennan was

Muldowney(2) 8 31/8/93

correct in concluding that your client was not

qualified to vote at any relevant election is a

matter that is severable from the constitutional

points?

MR CORR:	That would be saying whether or not jurisdiction
applies or not; we then determine whether or not a
prerogative writ would apply - I would say that it
would be severable, Your Honour.
HIS HONOUR:	The problem with that, though, is that if your

arguments about jurisdiction are correct there is

the possibility - theoretical possibility - that
there has been a hearing which was undertaken

without legal foundation.

MR CORR:	Yes, Your Honour.
HIS HONOUR:	I am not suggesting for a moment that that is a

likely result of your arguments; I am just dealing

with it on a theoretical basis at the moment in

pursuing this question of severability.

MR CORR:	And that in that instance no decision has been made whatsoever?
HIS HONOUR:	Yes.
MR CORR:	So that, in any instance, nothing would lie
because you could not order the honourable Justice
to hear a case again in which he had no power to
hear in the first place.

HIS HONOUR: Exactly.

MR CORR: In that instance, Your Honour, we would have to

determine the validity of my arguments about the
constitutionality of the Court of Disputed Returns

before deciding on any other argument.

HIS HONOUR:  It seems to me, in the circumstances, that the

proper course to adopt at this stage, in accordance

with section 78B of the Judiciary Act, is that you

should give notice in accordance with that section

to the Attorneys-General of the questions which

arise in the proceedings before me on the arguments

that you intend to present. It does not seem to me
that it would be appropriate for me, without

hearing the Attorneys-General, to decide that there

is severable question, apart from the

constitutional questions, and determine that

question.

Now, it may be that the Attorneys will not

seek to be represented, in which event I shall

pursue the course that I then think appropriate but

I think as things currently stand, I should direct

Muldowney(2) 9 31/8/93

you to give notice to the Attorneys-General

pursuant to section 78B.

MR CORR:  Yes, if it please the Court. Is there any

particular timetable, as I believe it is normally seven day period from the - or fourteen days from

it originating. I will undertake to have those

filed and served within 14 days.

HIS HONOUR:  I think you ought to do it more quickly than

that because I do not think that we should leave

outstanding any question of validity of an

election.

MR CORR:  No, Your Honour, indeed. My client is

particularly keen to have this matter resolved as

quickly as possible also.

HIS HONOUR:  I think you ought to give notice to the

Attorneys-General by the end of this week and then you could convey in the notice that I hope to

restore this matter to the list on a day in a week

after the next fortnight.

I direct you to give notice to the Attorneys-

General of the Commonwealth and the States on or before Friday, 3 September. You can indicate in

that notice that I hope to restore the matter to
the list for hearing on a day in the week

commencing Monday, 20 September.

MR CORR:	Yes, if it please Your Honour.
HIS HONOUR:	Mr Corr, you would not want to take any great

comfort from anything I have said to you during the

course of the morning. I have been mainly

concerned to ascertain what it is that you are

endeavouring to submit to the Court and to

determine whether it would be appropriate for me,

today, to attempt to deal with a severable

question, apart from the constitutional questions

which you have sought to raise.

MR CORR:  Indeed, Your Honour.

HIS HONOUR:  Very well. The matter will stand adjourned to

a date to be fixed to enable you to give the 78B

notices that I have directed.

MR CORR: If it please Your Honour.

HIS HONOUR: Court will now adjourn.

AT 10.45 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Muldowney(2) 10 31/8/93