Smith v Australian Electoral Commission

[2008] HCATrans 149

[2008] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S24 of 2008

B e t w e e n -

ROBERT ARTHUR SMITH

Petitioner

and

AUSTRALIAN ELECTORAL COMMISSION

Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 8 APRIL 2008, AT 9.30 AM

Copyright in the High Court of Australia

MR R. SMITH appeared in person.

MR S.J. GAGELER, SC:   If your Honour pleases, I appear with MS C.M. DOWSETT for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, just pardon me a minute.  The first thing to deal with is a summons filed on 3 April by the Electoral Commission.  Have you got a copy of that Mr Smith?

MR SMITH:   Your Honour, I received a copy of that late yesterday afternoon and I, unfortunately, have not had a chance to do any replies to it, only some notes that I have written on the side when I read it last night.

HIS HONOUR:   That is not very good.  There are some written submissions.  Have you seen some written submissions by the Commission dated 3 April, a document of eight pages?

MR SMITH:   Yes, they came with that document yesterday, your Honour.

HIS HONOUR:   Do you need some more time to digest that?

MR SMITH:   It depends on what your Honour would like me to do today with that submission.  I can give some verbal replies to it.  I have got some notes made on it.

HIS HONOUR:   The first question is wether this whole proceeding should not be sent to the Federal Court, which the Court has power to do.

MR SMITH:   Yes, your Honour.

HIS HONOUR:   That is the first question.  Do you oppose that course?

MR SMITH: Yes, we do oppose that, your Honour. We believe this is a matter in the national interest, that a political party has been placed in a federal election, which really contravenes the Constitution and I believe that the High Court is the appropriate Court to handle that matter, and we would even go as far as saying that we believe that there should be a Full Bench of the High Court to hear that matter because there is fraud, misrepresentation. There is a few other matters ‑ ‑ ‑

HIS HONOUR:   Fraud and misrepresentation are factual matters.  We do not normally try factual matters, you see, that is why it should go to the Federal Court, let alone five Judges trying a factual matter, or seven Judges.

MR SMITH:   We believe that the party should not have been in the election, your Honour, and that the party was fraudulently registered and that is why we have sought some orders in our summary for discovery.

HIS HONOUR:   All right.

MR SMITH:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Gageler.

MR GAGELER:   Your Honour has seen our written submissions.

HIS HONOUR:   Yes.

MR GAGELER:   We are conscious that the ordinary order is for remittal to the Federal Court and we have made that the proposed order 1 in our summons.  Your Honour, I would not on reflection be seeking to advance the second ground for dismissal that appears in our written submissions, that is, the petition ‑ ‑ ‑

HIS HONOUR:   Just a minute.

MR GAGELER:   Your Honour, has our written submissions page 7 and following?

HIS HONOUR:   Yes.

MR GAGELER:   There is an argument advanced that, on the evidence of Mr Pirani, the petition is doomed to failure on reflection, given the possible permutations that not being explored ‑ ‑ ‑

HIS HONOUR:   That is because of the significance of the quota?

MR GAGELER:   That is right.  It is not quite that simple on reflection.

HIS HONOUR:   I can understand that.

MR GAGELER:   So I would not be advancing that at all.

HIS HONOUR:   So, paragraphs 18 through to 21 will not be pressed?

MR GAGELER:   Will not be pressed, nor the evidence upon which they are based, that is, the affidavit of Mr Pirani.

HIS HONOUR:   There are two affidavits of Mr Pirani.

MR GAGELER:   The second affidavit of Mr Pirani of 4 April I would seek to read, if your Honour were minded to consider the ‑ ‑ ‑

HIS HONOUR:   No, but I want to get a view now as to what will be alive in the Federal Court.

MR GAGELER:   Well, what will be alive in the Federal Court, the first issue that will be agitated in the Federal Court ‑ ‑ ‑

HIS HONOUR:   But just looking at Mr Pirani’s affidavits, the second one ‑ ‑ ‑

MR GAGELER:   It is the second one, and all it does, your Honour, relevantly, is establish that the period ‑ ‑ ‑

HIS HONOUR:   It seems to be directed to the argument you have just been mentioning as not pressed, quota matters.

MR GAGELER:   His affidavit of the 4 April is directed simply to showing that the time for the filing of the petition set by section 355(e)(ii) of the Act is now past.

HIS HONOUR:   Yes, you are quite right.

MR SMITH:   Excuse me, your Honour, I just do not happen to have a copy of that second affidavit of Mr Pirani.  That did not come with my documents.

HIS HONOUR:   If you need an adjournment, you ask me.  What are your commitments later today, Mr Gageler?

MR GAGELER:   Your Honour, I can deal with it later today.

HIS HONOUR:   I will stand it down till 12 o’clock.  I think you had better read it, Mr Smith.  It is not the best place to read it on your feet in Court.

MR SMITH:   Yes, I know, your Honour.

HIS HONOUR:   So what I propose to do would be to stand it down in the list till noon today and that will give you some time to make sure you have all the documents and can quietly read them through.

MR SMITH:   Thank you, your Honour.

HIS HONOUR:   I will adjourn until noon.

AT 9.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.00 PM:

HIS HONOUR:   Yes, Mr Smith, you have been supplied with those materials?

MR SMITH:   Your Honour, we have had a look at the second affidavit from Mr Pirani.  We have also had another look through the first lot of material that was sent to us.  A couple of questions that we need to clear up first; what is happening with that first affidavit of Mr Pirani?  Is that still an issue?

HIS HONOUR:   That is the affidavit of 3 April?

MR SMITH:   Dated the 3rd.  Has that been withdrawn in place of this second one?

HIS HONOUR:   Is that still read, Mr Gageler?

MR GAGELER:   No, your Honour.

MR SMITH:   So that has been withdrawn out of the system?

HIS HONOUR:   Yes.  It is not being read in court, so that is it.

MR SMITH:   Right.  So we have read the second affidavit and the only ‑ ‑ ‑

HIS HONOUR:   That is the affidavit of the ‑ ‑ ‑

MR SMITH:   Of the 4th, your Honour.

HIS HONOUR:   Filed on 4 April, yes.

MR SMITH:   Yes.  The only question we have is there, is we would just like to know what is the relevance to this present matter of that affidavit.  All it is is copies of the writs returned and swearing that they owe the writs.

HIS HONOUR:   Well, it is a technical affidavit, but Mr Gageler will explain it to us now.

MR GAGELER:   The relevance, your Honour?

HIS HONOUR:   Yes.

MR GAGELER:   It is not relevant to order 1 of the summons.  It is relevant only to order 2 of the summons, that is, the question of dismissal and it is relevant in this way; that it is only after the time for a filing of a petition has passed that the petition cannot be amended.  The question then becomes whether the petition on its face complies with section 355(a) and if it does not, then under section 358(1) no proceedings can be had on the petition if the time ‑ ‑ ‑

HIS HONOUR:   Yes.  So the affidavit sets the timeframe within which the Act then operates, you say, to prevent further amendment of the petition?

MR GAGELER:   Yes, that is the point of the affidavit. 

HIS HONOUR:   Yes, all right.  Yes, Mr Smith.  Is there any reason why I should not make the order that this matter be remitted to the Federal Court?

MR SMITH:   Yes, your Honour, we have had another look at that and there is a statement here that we would like to make.  We feel we are here because the new amendments to the Electoral Act being the Electoral and Referendum Amendment Act 2006.  Now, that creates some precedents.  These amendments were to remove the mischief caused by the Liberals for Forests.  So that is the main argument of that Electoral Act that we see.  What has lead to this petition is the fact, by deregistering an existing registered political party under the Electoral and Referendum Amendment Act 2006, ie, the Fishing Party, an even greater mischief has been created by this amendment.  So we have now got a greater mischief than what was before when the amendment came in, and that is Schedule 3 of that amendment. 

This situation has never occurred before, ie, so we have a precedent, and as a result, we are looking for the judicial precedent from the High Court.  The situation relates to a fraudulent registered party that was placed on the ballot in 2007.  Further, sending this back to a lower court would only mean that if the disputed decision is appealed, it will be appealed to the Court of Disputed Returns, being the High Court.  In essence, your Honour, we want the job done properly in the first place and in the shortest time as the new Senate sits from 1 July 2008 which is not very far away.  This matter has been before the AEC since July 2007, so it needs to be urgently heard and we believe it should be heard in the High Court.

HIS HONOUR:   Thank you.

MR SMITH:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Gageler?

MR GAGELER:   Your Honour, the matter can be, obviously enough, dealt with expeditiously ‑ ‑ ‑

HIS HONOUR:   More likely to be dealt with expeditiously in the Federal Court than here.

MR GAGELER:   Yes.

HIS HONOUR:   There are more of them than there are of us, obviously.

MR GAGELER:   That has been the experience with other matters.  They were remitted in the past, your Honour.

HIS HONOUR:   Yes.  What would happen to costs of proceeding in this Court?  Would they be costs in the Federal Court?

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   I think the matter should be remitted to the Federal Court so that it can be dealt with as expeditiously as possible, having in mind the fairly close date within which the changed Senate will convene and having regard also to the allegations of fact that seem to be raised by the petition, if the petition is in proper form.  So on the summons by the respondent which was filed on 3 April 2008 I make order 1 and I order that the costs in this Court of the proceeding to date, including today, be costs of the proceeding in the Federal Court of Australia.

I will now adjourn.

AT 12.06 PM THE MATTER WAS ADJOURNED