Roach v Campbell Australian Electoral Commissioner & Anor

[2007] HCATrans 122

[2007] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2007

B e t w e e n -

VICKIE LEE ROACH

Plaintiff

and

IAN CAMPBELL (AUSTRALIAN ELECTORAL COMMISSIONER)

First Defendant

and

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons for direction

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 28 MARCH 2007, AT 9.30 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MS F.K. FORSYTH, for the plaintiff.  (instructed by Allens Arthur Robinson)

MR P.J. HANKS, QC:   If your Honour pleases, I appear with my learned friend, MR P.R.D. GRAY, for the first defendant.  (instructed by Australian Government Solicitor)

MS L.G. DE FERRARI:   If your Honour pleases, I appear for the second defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  Yes, Mr Merkel.

MR MERKEL:   Your Honour, the parties have had some discussions about directions that may be appropriate.  Could I hand up to your Honour the proposed formulation of the directions that the plaintiff would seek.  Does your Honour have ‑ ‑ ‑

HIS HONOUR:   Before we come to these particular details, can I just go back one logically prior step?  Am I right in understanding that the originating process, the application for order to show cause, seeks declarations in respect of sections 93(8AA) and 208(2)(c)?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Are those the only sections that you need to impugn?  I understand why section 93(8AA) is mentioned, in light of what now appears in 208(2)(c), but do you need also to go back and give consideration to section 93(8), in particular section 93 – no, it is the difficulties about print.  It has all now gone into (8AA), is that right?

MR MERKEL:   Yes, your Honour, it has gone into (8AA).  There is one matter that does arise as a result of your Honour’s question.  We had drafted the declaratory relief on the premise that the Court would be able to determine this matter prior to writs issuing.  If the position were otherwise, then we may have to seek to impugn section 231, which would make the certified electoral list, which would require the Commission to exclude prisoners as ‑ ‑ ‑

HIS HONOUR:   Well, the present intention I would have is to have the case ready for hearing in a Full Court in the list of cases in June.  May proposals have been formulated, and I think it is not likely – I think it is very unlikely – that we would be able to get it ready for May, but I am working on the basis that we should have it ready for the list of cases commencing on Tuesday, 12 June.

MR MERKEL:   In those circumstances, your Honour, the relief we would seek is, I believe, sufficiently set out in the declaratory relief.

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, can I indicate I am grateful to your Honour for that indication because that would make our proposed directions such that the matter could come on and there would be no hurdles of the kind that could arise if agreement is required to a special case.

HIS HONOUR:   Could I ask, and if it is not appropriate to answer please do not, but why special case rather than stated case?

MR MERKEL:   Your Honour, the concern with the stated case is twofold.  The authorities make it clear that the Court cannot draw any inferences from the facts in a stated case; they can in a special case.  We have a real concern, in a case such as this where the law is somewhat uncertain, that that might be a very narrow path for a Full Court to have to follow in an area where essentially the facts are undisputed, or not capable of being disputed, because they really relate to the question of a legitimate object.

HIS HONOUR:   It is that which, I must say to you bluntly, represents the real worry I have, that if there is going to be a debate about what inferences are to be drawn, what I want to invite the parties to do is to go back and look hard at why those facts cannot be made explicit.

MR MERKEL:   Yes.

HIS HONOUR:   The last thing we can ever deal with comfortably is disputes of fact in the Full Court.  I understand there would be no dispute of fact, but disputed inferences are again a likely source of difficulty.  Now, if in the end the parties say, “Look, no.  We are determined upon going the special case path” so be it, but all I am saying is, if you cannot go the stated case path, there will be a reason you cannot go the stated case path.  That reason needs to be brought to the surface sooner rather than later, and I think all of the parties have to understand why the stated case path has been rejected, otherwise the case is at serious risk of going off the rails.  Where we have time considerations of the sort that you refer to, that is unfortunate.

MR MERKEL:   Your Honour, we are cognizant of that issue.  That is why in our proposed directions what we really have proposed is to have the hearing not in effect conditional upon parties’ agreement to facts whether they be in a case stated or a special case.  So we have gone back to what was the traditional way for order nisi applications to come before the Full Court, which is by affidavit, where we will outline the material upon which we would rely – which is all on public record – and will be capable of being adduced in evidence under the Evidence Act and the defendants can reply, but we have provided, your Honour, for the parties to seek to agree that the matter proceed by way of a special case and, if that is to occur, the draft be finalised and filed by 4 May.  That would enable the June deadline to be met.

Your Honour, in relation to inferences, it is difficult at this early stage to be confident but, as far as we are aware, it is hard to see how there can be any dispute.  The kind of inferences that might be invited to be drawn, your Honour, are inferences that flow from particular statistics as to the prison population, but the difficulty we have is that until the Commonwealth have identified the legitimate end or object that they may wish to contend for – and I emphasise the word “may” because at this stage they may say that this is not a burden on any implied right, and if that is the case the legitimate object question simply does not arise, but we assume that they will – then when that is identified we would be in a better position to know whether any inferences will be invited.  We would think, your Honour, that the question of inferences on undisputed facts ought not to be a matter of difficulty in the conduct of the case.

HIS HONOUR:   It leads to this I think, Mr Merkel.  Yes, of course the parties will have directions about getting the matter moving forward and moving forward as soon as may be.  I will need a deal of persuasion to make today any order that would refer the matter into the Full Court until I know what the state of play on the facts is.  I would need more than a deal of persuasion to refer in to a Full Court a matter where there is a serious dispute of fact.  In such a case it would seem likely that I would be more inclined to remit the matter for trial of that disputed fact. 

So, yes, let us move forward, let us move forward promptly.  By all means let us give directions about times for exchange.  I see the evident sense of giving directions about exchange of affidavits early so that you get the factual bases forward.  Is it desired, is it desirable, that I go any further than that by saying to the parties, well, go away and see what you can agree?  Do I really need to do that with these parties represented in this way?  If parties have to be dragged kicking and screaming to discuss whether they can agree, we are not likely to get far, are we?

MR MERKEL:   Well, your Honour, that is why we have proposed a procedure, but I should say, I preface that comment with it seems to be common ground between the parties that there will be no dispute about the facts.  It can only be a dispute about what inferences will arise and that, if anything, will be fleshed out in submissions and because our facts are entirely on the public record and will be admissible under the Evidence Act, we would be surprised if there is any significant reply affidavits. 

It may be the advantage of a special case is when we have identified how the Commonwealth and the Electoral Commissioner, if the Electoral Commissioner wishes to take some active role, seek to identify the legitimate object, that will no doubt enable us to narrow down the facts for a special case.  I have no reason to be pessimistic about a special case being agreed upon.  If it was able to be agreed upon in a terrorist context, it is hard to see why there would be disagreement in this case.

HIS HONOUR:   Yes, and that led to the difficulties that emerged during the course of oral argument.

MR MERKEL:   Yes.

HIS HONOUR:   That is why I again simply invite the parties to consider again the desirability of stated case rather than special case.  I understand what you say in answer to that.  I am not to be taken as saying no, you cannot go down the special case path, but I do invite the parties to give fresh attention – I know it is not attention for the first time – but fresh attention to whether we can go the stated case.  Can I just ask a couple of questions, which again may not call for immediate answer? 

It would seem to me likely that the facts that would need to be identified would include the length of the term of imprisonment imposed upon the plaintiff, and an identification of the offence or, more accurately, the law of the Commonwealth or the State, that led to the imposition of that term of imprisonment. It would then at first blush seem to be that you begin examination of the question from section 30 and section 8 of the Constitution. As I understand it, the plaintiff’s contention is that the Parliament may not otherwise provide in the terms of section 30 in this particular way. That may, it may not, require some consideration of what was the position under the laws of the States, as the qualification of electors of the more numerous House of the State, as at Federation. It may be relevant, it may not, I just do not know at the moment.

It may also invite some consideration of section 44(ii), the qualifications for election as opposed to being an elector for the Houses and, as I understand it, you then anticipate that it will require consideration of purposes and objectives sought to be achieved by the impugned provisions of the Commonwealth Electoral Act.  Now, as I say, those musings may or may not warrant anything more than a determined silence by counsel.

MR MERKEL:   No, your Honour.  Your Honour has hit at the heart of the kind of questions which will arise.  The ultimate question, your Honour, is really which of the sections, putting the section 44(ii) aside, are essentially transitional provisions and, given the evolution of representative democracy both in our jurisprudence and as a practical political outcome, what objective criteria, if any, is the Parliament of the Commonwealth subject to in determining who should be excluded from the right to vote and that question, as we understand it, your Honour, has really not been considered by the Court.  It is more in the negative.  What persons may not be excluded and what persons can be excluded, and the criterion for that has never really been authoritatively considered or determined in this context.  It is that that really underlies the whole case, your Honour.

Whether it becomes an issue as a burden on representative democracy, whether the textual considerations such as chosen by the people implicitly require no more than capacity to choose, and some definition of “the people” for the purpose of election, they are sort of two outcomes which have received some comment by members of the Court in other contexts, but they are the sorts of issues we see as going to the heart of this case.

HIS HONOUR:   Yes.  Now, as to timetabling, if we are to be ready in time for the sittings commencing on the 12th, working backwards it would seem to me that the timetable for submissions would have to be running back up the pile along these lines.  Your reply would need to be on by 4 June, interveners if any should be on by 30 May, the defendant on by 23 May, and your initial submissions by 9 May.  Now, I think that a timetable broadly along these lines – I am not fixed in concrete about the dates – but ending no later than Monday, 4 June, would have us ready for hearing in the June sittings. 

Preparation of either a special case or stated case book in this matter would I think be not terribly onerous.  I cannot anticipate what is in it, but assume it would not be particularly large.  Therefore, the parties have really got, if that timetable were to be met, the month of April in which to sort out these disputed questions of fact.  Now, the timetable you propose about affidavits would see the affidavit process closing as late as 27 April, but unless you had some reconsideration of those dates in light of the kind of timetable I have foreshadowed, is there any reason not to run with those dates that you propose?  Bring it back on then before me I would suggest no later than Monday, 30 and see finally where we are going.

MR MERKEL:   Yes, your Honour.  What I would suggest, your Honour, is, if the date in 4(b) could be brought back from 20 April to, say, Wednesday, 18 April ‑ ‑ ‑

HIS HONOUR:   It is always so much easier abbreviating your opponent’s time, is it not, Mr Merkel?

MR MERKEL:   Well, your Honour, I do have ‑ ‑ ‑

HIS HONOUR:   They have endless time, I know, Mr Merkel.  I had better hear what they have to say eventually, but you want to abbreviate that to 18.

MR MERKEL:   Yes, just two days, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   And then have brought back our reply to 25 April.

HIS HONOUR:   April 25 is not the best day.

MR MERKEL:   Sorry.

HIS HONOUR:   April 24 it would have to be.

MR MERKEL:   April 24.  Your Honour, the paragraph 6 could change to 29 April.  That is a Sunday.

HIS HONOUR:   Can I tell you what I have in mind?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   The parties should do whatever they can between themselves, but they come back before me, as I say, if it is not 23 April it would have to be 30 April because we have the balance of the April sittings.  So they come back on 30 April and we finally set course for wherever we are going.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   According to where you have got to.  In the meantime, I would propose to inform the Chief Justice that the parties are working towards being in a position to be entered in the list of cases to be heard in that sittings I earlier mentioned.

MR MERKEL:   Yes, your Honour.  What we would propose, just in line with what your Honour has indicated, is if those dates were altered as indicated and the special case date, your Honour, be by 27 April.  So your Honour would have an indication prior to the 30th of where the parties stood on the special case, and the matter come on for directions on 30 April on the basis that if the matter is fixed for hearing in the June sittings, your Honour’s indication of the submissions ‑ ‑ ‑

HIS HONOUR:   It will not come to the parties as a great shock when I suddenly set a timetable that is of the kind I have indicated.

MR MERKEL:   Well, we understand the need for it to come on early, your Honour.

HIS HONOUR:   Yes, all right.  Perhaps if I hear from Mr Hanks.  Mr Hanks, what do you say about my giving directions in the following form?  If you had Mr Merkel’s proposed form before you, it would be order 1 the amendment of the name, order 2 ‑ ‑ ‑

MR HANKS:   Your Honour, I invite you to stop there.

HIS HONOUR:   Yes.

MR HANKS:   It would be the name of the first defendant, not the second defendant.

HIS HONOUR:   Yes.

MR HANKS:   Thank you, your Honour.  That is the first thing I have to say.

HIS HONOUR:   The summons for directions, leave to amend perhaps should go.  I would not presently be minded to make order 3, which is reference in.

MR HANKS:   Yes.

HIS HONOUR:   The directions he seeks are:  4(a) 5 April, 4(b) 18 April, 4(c) 24 April - let us come to those in a moment.  He then asks for paragraph 5.  What I would propose instead of paragraph 6 is that the parties file any proposed form of stated case or special case on or before 27 April, and then adjourn it over to 30 April reserving costs.  Now, that is the current framework.  I have interrupted you.  What have you got to say?

MR HANKS:   I have quite clear instructions that our client – which would have some participation in preparing evidence if we are going to proceed by affidavit – will need the time that these proposed directions allow, that is 20 April.  We would think that if the timetable remains as it is in paragraph 4, that it would be achievable.  Perhaps the 27th might be a little tight, but the 28th or 29th would be achievable for preparing a proposed form of stated case or special case.  So, if I might deal with the general proposition first, your Honour.  We think it is appropriate that the matter come back before your Honour.  The 30 April appears to be a proper date to do that, although it does place ‑ ‑ ‑

HIS HONOUR:   It means slipping it in this way, I think, Mr Hanks.  Come back on 2 May, proposed stated case or special case 30 April.

MR HANKS:   Yes, your Honour.

HIS HONOUR:   When you come back on that day, do so well knowing the kind of timetable for submissions that lies ahead so that the parties are not caught by surprise, that they need to move particularly quickly with their subs.

MR HANKS:   Yes.  Thank you, your Honour.  I do not think I need to expand on why it is that we need that time, but there are some complexities associated with getting instructions and clearance, as your Honour might understand.

HIS HONOUR:   Yes.  Now, Ms De Ferrari, what is the position of the Commonwealth?  Perhaps if you might come to the microphone, Ms De Ferrari, it would help I think.

MS DE FERRARI:   Your Honour, my instructions are that in regards to paragraph 4(b), the second defendant would need to 27 April.

HIS HONOUR:   Why?

MS DE FERRARI:   There are a number of ‑ ‑ ‑

HIS HONOUR:   What is the Commonwealth going to put on that differs from what the Electoral Commissioner would wish to put on?  I know any polity needs sufficient time to get through the bureaucratic blood vessels, I understand that, but we really do need to move this one along a bit, do we not?

MS DE FERRARI:   Yes, your Honour.  Well, the first point is that there is an Easter break in the middle that throws a bit of time out, but the second matter is really that my learned friend has said that it is just statistical materials and so on, but we really need to see what sort of statistical materials and have a bit of time to consider those.  If, for example, as your Honour has said, it is a question of looking at the position in the various States and going back to Federation, then there might be materials that arise from that as well.

HIS HONOUR:   That will lead to affidavits?

MS DE FERRARI:   Possibly.

HIS HONOUR:   The colonial position pre‑Federation presumably is reflected in legislation.  It is a day in the library rather than an affidavit, I would have thought.

MS DE FERRARI:   It is more in terms of the policy positions, your Honour.  So more in terms of going to the legitimate aim question, if the Commonwealth ‑ ‑ ‑

HIS HONOUR:   Policies that we are applicable at the turn of the 19th and 20th century may perhaps remain suited to their time.

MS DE FERRARI:   Yes, your Honour, but my instructions are that this question of the eligibility of people serving sentences or having been sentenced has evolved effectively over the last 100 years and it is a question that has been looked at more or less after each election, and the Act in the provision in question has changed a number of times.  So the policy has actually evolved, and it is not just the policy at the time of Federation.

HIS HONOUR:   In the days when there were property qualifications, did eligibility of prisoners then turn on whether it was felony because if it was felony, were there not consequences for property, the consequences for property would then have their effect?  I do not know.  These are things that no doubt are mysteries that will be revealed in time.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Well, you say you need 27 April, which is how many days from now, Ms De Ferrari?

MS DE FERRARI:   Taking away Easter, that probably makes it something like three weeks from now.

HIS HONOUR:   Well, yes, it would give you four weeks.

MS DE FERRARI:   We apprehend that the important points, as far as the plaintiff is concerned, is to have a notice of how the second defendant would seek to articulate the basis for the law being one that is a legitimate end in terms of any implied freedoms that they seek to argue.  Now, we would endeavour to do our best to do it by 30 April and, bearing in mind what your Honour has said before about various people to be consulted in the bureaucracy, that is already a big aim, and I think that would assist the plaintiff and it would assist the Court in moving the matter forward in accordance with the other proposed directions and timetable that your Honour has indicated.

HIS HONOUR:   Yes, thank you.  Mr Merkel, I am minded to give directions substantially to this effect. 

1.Leave for the plaintiff to amend the name of the first defendant to “Electoral Commissioner” and amend the title of the proceeding accordingly. 

2.Leave for the plaintiff to amend the summons for directions in accordance with the proposed amendment summons filed in Court. 

I would not be minded to make proposed order 3.  I would give directions for affidavits in accordance with proposed paragraph (a), proposed paragraph (b) unamended, that is, fixing 20 April, proposed paragraph (c) unamended, that is, fixing 27 April.  There being no objection, I will give a direction to the effect of paragraph 5 and I will leave the date of 13 April.  I would not give proposed direction 6.  Rather, I would direct that the parties file and serve on or before 30 April any proposed form of stated case or special case and adjourn the matter for further directions to Melbourne on 2 May 2007 at 9.30 or such other time as may be fixed, and reserve the costs.  Now, do you want to be heard against my giving directions in those terms?

MR MERKEL:   No, your Honour.  I am told by my learned friend, Mr Hanks, that the Commonwealth is the party that will file any legitimate object or end the Commissioner does not wish to contend or put any submissions in that area.

HIS HONOUR:   So order 5 should read “On or before 13 April the second defendant file and serve a notice stating any legitimate object or end upon which it may seek to rely in response to paragraph (c) in the grounds set forth” et cetera, is that right?

MR MERKEL:   Yes, your Honour.  We have just said any defendant.  It could be any defendant who wishes to do so, but if the Commissioner – could your Honour change that to “any defendant” because ‑ ‑ ‑

HIS HONOUR:   Well, that then becomes permissive.

MR MERKEL:   Yes.

HIS HONOUR:   If the parties reach agreement about this being something that will happen so be it, but if I am to give a direction, I should give a direction to a specified party.

MR MERKEL:   Your Honour, could it be 5 in its present form because if the first defendant does not wish to put any contention in favour of a legitimate object, then it does not require them to do anything.

HIS HONOUR:   It is the Commonwealth that is defending the legislation, or should have principal carriage of the defence of validity, I would have thought, rather than the officer who must simply administer the legislation that he or she is given.  I would have thought it would suffice to have on or before 13 the second defendant file and serve the notice.

MR MERKEL:   If your Honour pleases.  Your Honour, the only other matter is one that affects me personally, your Honour.  If the matter did come on in the June sittings, if I can ask of your Honour, would it be likely to come on as the first case in the sittings?

HIS HONOUR:   I do not know.  Nor do I know where the case will be heard.

MR MERKEL:   Yes.

HIS HONOUR:   It may be that there will be building works occurring in the Canberra Courthouse that will make it difficult to conduct the Canberra sittings in that city, we do not know.

MR MERKEL:   Yes, well I cannot take that any further.

HIS HONOUR:   If we do not know, I regret to say I cannot tell you.  Ms De Ferrari, you wanted to mention something?

MR MERKEL:   Thank you, your Honour.

MS DE FERRARI:   Your Honour, in respect of paragraph 4(b), could the second defendant at least have the weekend to do any final work and could we have that as Monday 23 April?

HIS HONOUR:   It is like running an auction, Ms De Ferrari.  Should I consult the vendor, Mr Merkel, about whether the offer is acceptable?

MR MERKEL:   Your Honour, it does squeeze us.  That 20 April was a date we had put in to accommodate the Commonwealth, so it does seem reasonable.

HIS HONOUR:   We have parties here who are represented by counsel who have discovered the telephone and the fax, have we not?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   I will give the directions in the form in which they stand, but you have heard what Ms De Ferrari has said and you have heard what I have said about the need for polities to find their way through the bureaucratic blood system.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Very well.  Then there will be directions in those terms.  Adjourn the Court.

AT 10.05 AM THE MATTER WAS ADJOURNED