Roach v Electoral Commissioner & Anor

[2007] HCATrans 187

[2007] HCATrans 187

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

ELECTORAL COMMISSIONER

First Defendant

and

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons for direction

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 2 MAY 2007, AT 9.29 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with MS K.L. WALKER, on behalf of the plaintiff.  (instructed by Allens Arthur Robinson)

MR P.R.D. GRAY:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

MR H.C. BURMESTER:   I appear with my learned friend, MS L.G. De FERRARI, for the second defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, the parties have filed with the Court without the annexures the proposed special case.  Of course, the parties are agreed subject to the Court being prepared to refer the special case to the Full Court for hearing.  We have all the annexures to it but they have not been delivered up to the Court yet but they are available, your Honour.  The parties have also, I think, agreed on the terms of directions they would seek and if I could hand up to your Honour the proposed directions.

HIS HONOUR:   I have a document marked “FIRST AND SECOND DEFENDANTS’ PROPOSED MINUTES OF ORDERS”.  Is that the document?

MR MERKEL:   That is seven paragraphs, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   Yes.  The parties are in agreement, subject to anything your Honour might say, that those directions would enable the matter to come on for hearing in the manner proposed and sought.

HIS HONOUR:   I do not propose to stand in the way of the parties pursuing the special case procedure, if that is what is agreed, though it is only this that I understand a purpose of pursuing that is to enable the Court to draw inferences.  That simply invites attention to what are the inferences that the Court would be asked to draw and why are those not explicitly agreed facts, but if the parties wish to pursue this course, so be it.

May I, nonetheless, raise a number of questions about the proposed special case.  They are questions which the parties may or may not wish to make any answer to at this stage of the matter and I assume that they are all matters to which attention has already been given, but I was struck by the following features of the special case.  Paragraphs 17 to 21 concern the particular educational attainments and endeavours of the plaintiff.  It was not immediately apparent to me why the particular educational attainments and the particular educational objectives of this plaintiff were immediately relevant to the questions of validity that arise.

Second, paragraphs 29 and following, there is a deal of information about the plaintiff’s access to forms of media while she serves her sentence of imprisonment.  I understand at least some possible bases on which it may be said that such facts are relevant, but if it is relevant, is it also relevant to know whether or to what extent prisoners other than the plaintiff in institutions other than the institution in which the plaintiff is serving her sentence of imprisonment have access to particular forms of media?  The answer to that may well be no, but I was struck by the essential particularity of what appears in paragraphs 29 and following.

At paragraph 45(b) it is said that the plaintiff “is not disentitled to have her name retained on any roll under the Act”.  I have not gone back to look at the legislation to understand better the significance of “disentitlement to have a name”, in this case the plaintiff’s name, “retained on a roll under the Act”.  I assume, but have not checked, that paragraph 45(b) reflects a particular provision or set of provisions that are found in the Act.  That is a comment that reflects my ignorance rather than anything more deep seated than that, if there could be anything more deep seated than that which I have mentioned.

Paragraphs 50 and following deal with the prison population and its makeup.  Again, the immediate relevance of those facts is not instantly apparent to me.  I understand, perhaps, why the Court should be told what numbers we are concerned with but the various ways in which those figures are further analysed is not instantly apparently relevant.  Likewise, paragraphs 58 and following.  There are two points there and it is again not immediately apparent to me what the relevance of the incidence of reported crime is.  It is, perhaps, to make the point that not all offences are reported, prosecuted to conviction and lead to imprisonment.  That would not be a fact that I think would come as a startling surprise to people, but perhaps it would. 

There is a further point.  What is it said that the Court should do with propositions that are cast in terms of “the AIC has reported certain material” – the Australian Institute of Criminology?  Do the parties agree that the reports are accurate?  Are they simply agreeing that this report has been made and we make of the fact of report whatever is said to be important?  Again, these are, I assume, questions that the parties have turned their minds to.

Then, when we come to the questions of paragraph 75 it is not immediately apparent to me that question 5 is apposite if the parties are stating a special case.  Question 5 might be apposite in a case stated by a justice for the opinion of the Full Court.  It is not, I think, or at least it is not immediately apparent to me that it is a question that is apposite to a special case stated by the parties.

There is then in question 2 the question presented, whether the specified sections are “invalid because they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30”.  Are those matters in issue in this proceeding?  My immediate impression, gained from an imperfect understanding of the matter, that the true focus of the debate was not whether the sections were supported by a head of power but whether they were contrary to what was said to follow from section 7 and 24 but, again, these are matters to which I assume the parties have directed their attention and we find the question in there following explicit consideration of these matters.

As I say, it may well be inappropriate, I think, for the parties to make any response to any or all of the matters that I have raised.  As I say, I will not stand in the way of the parties stating a special case and referring the questions thus agreed for consideration to the Full Court.  As you know, June 12 and 13, is it, are the days that have been set aside for argument of the special case.

MR MERKEL:   Can I indicate to your Honour that thought and attention has been given to the matters raised by your Honour.  One of the difficulties is that on the way we apprehend the cases to be raised by the plaintiff there is no prior decision of the Court that offers clear guidance on what range of matters may or may not be relevant.  We can understand your Honour’s concern about what the circumstances this particular plaintiff may have to do with the matter but it is an example ‑ ‑ ‑

HIS HONOUR:   Other than as an example of the kinds of circumstance that are presented for persons who are serving sentences.  I understand the example but if it is relevant to know the example, is it relevant to know the range from which the example is drawn, that is the base?

MR MERKEL:   I understand that, your Honour, and that is why the detail of the Victorian Corrections Policy has been inserted but we have indicated to the other parties that it was because of time constraints that we have not been able to track down what the situation is in other States and that is something we are looking at but that will be a public record, your Honour.

HIS HONOUR:   Mr Merkel, can I sound this warning in terms that are as blunt as I may.  Amending the special case in significant ways will become much more difficult the closer we are to the date fixed for hearing.  If you are suggesting this target is going to move I want to know when it is going to stop.

MR MERKEL:   I think, your Honour, that it is not anticipated that there would be any moving of the target in this direction but I just wanted to indicate that we had informed the other parties that we are trying to get the relevant information which is not that easily available in the other States thus far but we expect to make progress on that very quickly, your Honour, so we do not expect there would be any problem there.

In respect to the third matter, your Honour, about the plaintiff not being disentitled, that is no more than a reference, as I understand it, to the fact that none of the disqualifying features in respect of enrolment apply to her, such a not being a subject and so forth.

HIS HONOUR:   The parties may, they may not, think it is desirable to just spell it out a bit more but when you come to it untutored, the paragraphs stand there rather oddly when the whole focus of the litigation is upon the fact that Ms Roach is not entitled to vote and you suddenly come across this paragraph saying she is not disentitled.  That is a drafting quirk.

MR MERKEL: It will become a significant feature and we will spell that out in the submissions, your Honour, but it does direct attention towards her being accepted by the terms of represented democracy and legislative evolution of represented democracy as one of the people, for the purpose of the Constitution, and when she is not an amorphous of non‑citizens for whom Parliament may have a wider discretion in relation to exclusion, but I will not say any more than that, your Honour.

On the prison population and the makeup, they are matters the relevance of which will be spelt out in the written submissions.  I do not think it would assist your Honour for me to try and go into that topic in any detail at this stage.  On the AIC reporting, the reason for that statement, your Honour, is unlike the other statements.  The report itself is based on the AIC’s analysis of statistics which are in fact in evidence so that in our submissions the actual percentages reported are corroborated and supported by the statistics which were in evidence and that is why the word “reported” is more accurate than the fact.  It is an analysis.

HIS HONOUR:   What I do not want to do is get to the Full Court and have the parties taking competing views about what the Full Court is to make of the statement “the AIC has reported that”.  It is the usual problem.  If there is a dispute of fact, this things goes to trial.  If there is no dispute of fact, let us make plain what is agreed.

MR MERKEL:   I think, your Honour, as far as we are aware, there is no dispute in relation to the facts in the Commonwealth.  I should say this, your Honour, the Commonwealth has not put in any opposing evidence.  The annexures are those in the plaintiff’s affidavits so we do not apprehend any dispute but we cannot pre-empt what the Commonwealth may say in their submissions.

HIS HONOUR:   I can and will, Mr Merkel.  What I am telling you is this case will not go forward unless I am told that the facts are agreed.  Can I make it any plainer?

MR MERKEL:   They are agreed, your Honour.

HIS HONOUR:   Right.  I have pointed to what seems to me to be an ambiguity.

MR MERKEL:   My understanding is that they are agreed, your Honour.  I have not heard anything that would suggest we are in dispute about any of those matters.  On the question of the declaratory relief, that is something we will address in our submissions, your Honour.  On question 2, your Honour, there is a submission we will be putting which would suggest that as an alternative to whether they are contrary to the sections they are not supported by the legislative power based on implied limitations in respect of those powers.  In other words, the implied fetter that Parliament may have on the question of qualification.

Again, I do not want to endeavour to spell it out at this stage but, in effect, it is a case that is not put solely on the basis that the particular provisions are contrary to sections 7 and 24 but it is also put on the alternative basis that the Commonwealth power does not have power to, in effect, disqualify members of the people who are capable of voting from voting and I use “members of the people” in the context of the case that we are putting that this particular plaintiff and those that she is representing, in a sense, in the issue in this case can be treated by the Court as citizens entitled to vote and having the capacity to vote and it takes it away from what might otherwise be a question of defining “the people”.

That is just an alternative way in which it is put, so we do say that to ensure that the full range of possible answers to questions are able to be put forward we have put 1 and 2, in effect, on alternative bases or they may in fact be cumulative.  At this stage, your Honour, I can only say we have turned our mind to it and there are questions about whether there are implied limitations in the legislative power conferred by section 51(xxxvi) and 30.  Ultimately, that may be a very substantial issue for the Court as to whether and, if so, what fetters there are on Parliament under those sections. 

They are the matters I put in response to the questions raised by your Honour.

HIS HONOUR:   Yes.  Mr Gray, what is the attitude of the Electoral Commissioner?

MR GRAY:   Your Honour, the first defendant agrees in the document that has been put forward.  The first defendant does not make any response to the points raised by your Honour today but will give consideration to those points, your Honour.  If your Honour pleases.

HIS HONOUR:   Yes.  Thank you, Mr Gray.  Mr Burmester.

MR BURMESTER:   Your Honour, yes, the only matters I say in response are that I think there is agreement on the facts in the document.  As paragraph 3 makes clear, however, the relevance of that material is an issue.  The second respondent would say that a large part of it is totally irrelevant.  So if there is any debate, it will not be about whether the AIC has reported and whether those figures are right or wrong.  It will be whether there is any relevance whatsoever in them.  So on that basis we do not see any difficulty with the document going forward in the form it is in.  The other matters he raised we will take on board but the document does, of course, represent a document with input from both sides and we have sought to accommodate the plaintiffs.

HIS HONOUR:   Yes, thank you, Mr Burmester.  The only possible addition to the proposed minutes of order that occurs to me is should I give a direction about the time by which a special case book should be prepared?  Should it, for example, be prepared at a time before the submissions process – it is going to be hard.

MR BURMESTER:   Your Honour, ideally, I guess it should come in at least with the plaintiff’s submissions.  I do not think there is likely to be any difficulty because I think the annexures are all collected.

HIS HONOUR:   They are all ready to roll.

MR BURMESTER:   It does not have the problems that another case may have had where in fact it was the respondents preparing a book and things like that.  My understanding is that there should be no problem.

HIS HONOUR:   Yes, because obviously if the submissions can have enough cross‑references to the special case book pagination it will make everybody’s life so much easier.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   It is all very easy from your side.  If then, Mr Burmester, I say that if paragraph 1 were to be amended to provide that “On or before 9 May the plaintiff file and serve (a) the requisite number of copies of a special case book and (b) her submissions”?

MR BURMESTER:   Yes, your Honour, on the understanding that the case book can be served even earlier than it should be.  …..submissions if it was ready before but I have no trouble with that change.

HIS HONOUR:   Yes, I am sure you do not, but, Mr Merkel, you are the side who would have the carriage of preparation.  Can that be done, do you think?

MR MERKEL:   Yes, I am told it can be, your Honour.

HIS HONOUR:   Just the evident practical sense of it is important, I think.

MR MERKEL:   Yes we agree with that, your Honour.

HIS HONOUR:   So if I were to amend paragraph 1 of the proposed draft, “On or before 9 May 2007 the plaintiff file and serve (a) the requisite number of copies of a special case book and (b) her submissions”, then to make directions in accordance with the draft, the only other matters to raise would be, are the parties yet aware of whether there will be or will likely be interventions?

MR MERKEL:   Your Honour, I think I can answer that from our state of knowledge at the moment.  We have been informed Tasmania, Northern Territory and South Australia are not intervening, New South Wales, Australian Capital Territory and Victoria are considering their position and we have not had a response from Queensland and Western Australia.

HIS HONOUR:   Yes.  Now, do I need to give any further consideration to the content of the special case book?  I would have thought it would likely be self‑evident as being the initiating process, the order referring the matter in, the special case and annexures, but it also should include, should it not, the document filed on behalf of the Commonwealth which was the document described as “Notice of Legitimate Objects” which is the document that, I believe, was filed on 13 April 2007.  Other than those documents, would we need anything else in the special case book?

MR MERKEL:   It is not really apparent to us that we would, your Honour, no.  Possibly the 78B notice, if need be.

HIS HONOUR:   The 78B should go in, of course, yes.

MR MERKEL:   Apart from that I think the special case book was intended to be comprehensive as to the material the Court would have other than formal documents of that kind.

HIS HONOUR:   Do not take me as having fixed and settled the contents by what I have said but I think it would be unnecessary, would it not, to consider today what goes into the special case book.  Can your solicitors stay in close contact with the Registrar to ensure that the special case book contents are suitable, Mr Merkel?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Otherwise, do counsel have anything else to say against me making orders and directions in the terms of the first and second defendant’s proposed minutes of orders, as amended, in the fashion I have described?  Mr Gray?

MR GRAY:   Nothing else on behalf of the first defendant, no.

HIS HONOUR:   Yes.  There will be orders and directions in those terms.  I do not think I need, do I, to fix any further day for directions?

MR MERKEL:   No, I do not think so, your Honour.

HIS HONOUR:   The parties would understand that if a difficulty does emerge, they should simply contact the Registry and we will make arrangements to fix a day for a further directions hearing if something unexpected were to occur but otherwise the matter will go forward for hearing on 12, and if necessary, 13 June.

MR MERKEL:   Can I express my and our gratitude to the Court for bringing the matter on as expeditiously as it has, your Honour, on those dates?

HIS HONOUR:   The calendar has a certain inexorable quality about it at the moment, does it not, Mr Merkel?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Yes.  We will adjourn.

AT 9.56 AM THE MATTER WAS ADJOURNED