Snowdon v Dondas

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Sydney No S95 of 1996

B e t w e e n -
WARREN SNOWDON
Petitioner
and
NICHOLAS MANUEL DONDAS
First Respondent
THE ELECTORAL COMMISSION
Second Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 SEPTEMBER 1996, AT 10.17 AM

MR J.A. McCARTHY, QC: May it please your Honours, I appear with my learned friend, MR J. HATZISTERGOS, for the petitioner in this matter. (instructed by McClellands)

MR J.E. REEVES: If the Court pleases, I appear for the first respondent, Mr Dondas. (instructed by James Noonan)

MS S.C. KENNY: If the Court pleases, I appear for the second respondent. (instructed by the Australian Government Solicitor)

BRENNAN CJ: Yes, Mr McCarthy.

MR McCARTHY: Pursuant to your Honour’s orders made on 15 August, the parties have prepared written submissions in this matter which have been handed into Court. This morning, when the matter was before the Court to commence with, concerning the reserved question and the referring of the question to this Court, Dr Kenny sought an amendment to the case stated which, as Justice Toohey has pointed out to us, should actually be called a special case. But in any event, your Honours, an amendment was made to item B1 of the case stated and - - -

TOOHEY J: It was paragraph 25 to begin with.

MR McCARTHY: Yes, paragraph 25, which has reference there to a further annexure, which is B1, and Dr Kenny has asked me to hand up to your Honours copies of the agreed further annexure, if I might, your Honours. If your Honours look at paragraph 25, it makes reference - it is on page - - -

GAUDRON J: Page 25 of the book.

MR McCARTHY: Yes, thank you, your Honour. It refers to “annexure annexed hereto and marked B”. In actual fact, it should be B1, and B1 was not included. If that could now be placed with the papers as B1.

GAUDRON J: That is a new page 25?

MR McCARTHY: Yes.

BRENNAN CJ: I must say, I am not quite following it. This is for the purpose of getting before us the document headed B1, page 35B, that you have just handed up.

MR McCARTHY: Yes, that is right.

BRENNAN CJ: What is the difference between that and the previous page 35B? I am sorry, I think mine has been amended.

DAWSON J: We have got these included in already.

BRENNAN CJ: I think they have been put in.

DAWSON J: Yes, they have.

MR McCARTHY: Your Honours, I will not take that any further. I was not aware, and I do not think Dr Kenny was aware, that the Court’s processes would be that swift. So copies were brought to add to the paper.

Your Honours, the orders in the interlocutory proceedings, in effect, leave the parties in a position in relation to submissions where somewhat, not at the beginning, but certainly not at the end of the case, but somewhere in between in the sense that, to a considerable extent, the issues between the parties have been stated and the argument development but, your Honours, as the matter opens, I would take a moment to put the formalities briefly before you in respect of the petition which is in relation to an election that was held in the Northern Territory on 2 March 1996 this year as part of the general election for the House of Representatives and the Senate that was held at that time.

BRENNAN CJ: There is no objection taken to the competence of the petition or - - -

MR McCARTHY: And there is no objection taken to the competence of the petition or to the publication of the petition or to the other formalities, and that they have been complied with, your Honours, in those parts.

The petition was considered in a series of interlocutory hearings before his Honour the Chief Justice. As a consequence of those hearings and to facilitate these proceedings, the parties proceeded to what was called a case stated but under the rules, I suppose, should better be described as a special case. Thereafter there has been prepared the reserved question book and at page 20 of that book the Court will find set out the matters on which the parties to this extent and to this time have agreed. At page 20, the Court will find set out the background to subdivisions and to the processes under the Act whereby subdivisions are created within Divisions and, in particular, in paragraph 5 there is reference to section 79(1)(b) of the Commonwealth Electoral Act, which is a key provision in relation to this case and provides, in terms, section 79(1):

Subject to subsection (2), the Electoral Commission may, by notice published in the Gazette:
(a) divide a Division into such Subdivisions (if any) as are specified and set out the boundaries of each Subdivision so specified; and
(b) divide the Northern Territory into such Districts as are specified and set out the boundaries of each District so specified.

The case stated goes on, in paragraph 6, and makes reference to a notice in relation to the publication of boundaries. Then, paragraph 7 refers to the Constitution of the Division of the Northern Territory whereby:

Pursuant to subsection 79(2) of the Act, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island ‑

are added to this Division. Then that makes a total of 27 districts in the Northern Territory and, of those, 25 are the Divisions for the election of members of the Northern Territory legislature.

The way in which that is referred, in terms of relationship, is set out at paragraph 9, which makes reference to the joint roll arrangement between the Commonwealth and the Northern Territory, and that there is a joint roll that is used for the election of the Northern Territory Legislative Assembly as well. In paragraph 10, that under “79(1)(a) of the Act, by a notice published in the Commonwealth of Australia Gazette” there is reference to the Division. The only other Division that has this was Kalgoolie, and that has two subdivisions.

TOOHEY J: Mr McCarthy, could I just ask you: if we work from the reprint as at 31 December 1995, are we in possession of the sections as they relevantly stood?

MR McCARTHY: Yes, you are, your Honour.

GUMMOW J: It is reprint No 7.

MR McCARTHY: Reprint No 7 is the reprint that the parties - at least, in relation to the petition, that is the reprint that I have been working from, your Honours. Paragraph 11 draws attention to:

subs 82(2) and subsection 4(5) of the Act, there is a separate Roll for each of the 27 Districts of the Division of the Northern Territory. Pursuant to subs 82(3), the 27 separate Rolls for each District together form the Roll for the Division of the Northern Territory.

If your Honours would go over to section 82, it says in subsection (1):

(1) There shall be a Roll for each Division.
(2) There shall be a separate Roll for each Subdivision.
(3) All the Subdivision Rolls for a Division shall together form the Roll for the Division.
(4) All the Division Rolls for a State or a Territory shall together form the Roll for that State or Territory, as the case requires.

GUMMOW J: Now, is it a question of connecting 82(2) with section 4(5)(b)?

MR McCARTHY: Yes. If your Honours will turn back to the definition section, section 4(5), it says this:

In this Act, unless the contrary intention appears:
(a) a reference to a Division shall be read as including a reference to the Northern Territory; and
(b) a reference to a Subdivision shall be read as including a reference to a District of that Territory specified in a notice published under subsection 79(1).

Your Honours, for reasons that your Honours will be aware from a perusal of the written submissions, the implications of reading “election district” as “subdivision” has consequences for electors in the Northern Territory in certain circumstances and the contention in the case is that the effects of that are such that the principal purpose of the Act would be undermined and, therefore, in section 4(5) the proviso “unless the contrary intention appears” does manifest itself in relation to subdivisions so that the Northern Territory would be regarded for the purpose of the federal election and for the purpose of orders before this Court as a Division.

DAWSON J: But apart from that contrary intention appearing, you do not contest that the Northern Territory is divided into districts and those districts are to be treated as subdivisions in reading the legislation?

MR McCARTHY: No, your Honour.

DAWSON J: As a matter of mechanics, that is all.

MR McCARTHY: As a matter of mechanics, that is so. In fact, one can go further and say this is the largest number of subdivisions in any seat in the electoral history of Australia.

DAWSON J: You say that the contrary intention is expressed and, therefore, the provision which produces that result does not apply?

MR McCARTHY: Does not apply when it comes to federal elections. It certainly would apply in relation to matters that would be - to the extent that it would be relevant, your Honour, to matters that applied to the joint roll arrangements for Northern Territory elections, for instance.

DAWSON J: And for present purposes we can concentrate on those things which exhibit a contrary intention.

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: Mr McCarthy, before you go further, assuming for the purposes of the construction of the Act that there is some contrary intention for whatever reason you are about to advance, what then is the construction which is to be placed on section 82 in your submission relevant to this case?

MR McCARTHY: In my submission, your Honour, the Northern Territory is to be read that the districts are not subdivisions. Therefore, 82(1) would be read as if there were a roll for the Division of the Northern Territory, that is 82(1), that in relation to 82(2) and (3) that those sections would be subsumed within section 82(1) as being a roll, and subsection (4) would be interpreted as one roll. In other words, your Honour, for the purposes of the federal election there would be a recognition that the Northern Territory was not divided into subdivisions and, therefore, those rolls would be subsumed within the roll for the Division.

DAWSON J: Yes, I understand that, but you say that although the Northern Territory is divided into districts those districts are not, because of the contrary intention, subdivisions.

MR McCARTHY: That is so, yes. It is as simple as that.

DAWSON J: So that the definition which produces that result does not apply?

MR McCARTHY: Does not apply, and as a consequence, where you would read “subdivision”, you would read “Division” for the Northern Territory as you would do, your Honour, in relation to 146 other Divisions within Australia at the present time in that way.

BRENNAN CJ: So reading it, there would be a roll for the Northern Territory, is that right?

MR McCARTHY: Yes, there would be, your Honour, just as there is a role for Banks or, in the area where I live, for Granydler.

BRENNAN CJ: If there is a roll for the Northern Territory, what is the effect of section 79? On your construction, as I understand it, of 82, there is only one roll. That is the roll for the Northern Territory. Now, how do you give operation to section 79?

MR McCARTHY: Your Honour, the Act can be used for purposes wider than just a federal election and is manifest from section 84 in relation to joint roll arrangements and other matters. One could give effect to this by having the Northern Territory divided into such districts as is posted there, but for purposes of a federal election, your Honour, they would not be recognised as subdivisions. In other words, your Honour, the districts could still exist under the Act and under the section 84 joint roll arrangement, but where that may have consequences for federal elections in respect of eligibility to vote, it would not be treated as being a subdivision.

BRENNAN CJ: Well, I can understand that that is what could be done; but as a matter of construction of the Act, when one looks at 79(2) it is clear that that provision relates to the roll for federal elections, is that not correct?

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: Well, it seems to me very difficult, then, if you are reading 79(2) as related to federal elections, to say that 79(1), on which it seems to be hinged or dependent, does not relate to federal elections.

MR McCARTHY: Your Honour, the subdivisions under section 79(2), or the district under 79(2), are for no purposes defined as being subdivisions. Section 4(5) of the Act refers to districts under section 79(1) only being matters to which a contrary intention applies, if that is the point that your Honour is coming at. It is not section 79(2). It can only be the case in relation to section 79(2), your Honour, that those Districts are there for federal election purposes. They are a part of the Division in the Northern Territory, by statute, but they are not subdivisions. They are not defined anywhere in the Act, your Honour, as being subdivisions in relation to other parts of the Act as.....; but they do form part of the of the Division of the Northern Territory.

DAWSON J: But is the territory of Cocos(Keeling) Islands anywhere else dealt with for federal electorate purposes? In other words, does it form part of the Northern Territory by any other means?

MR McCARTHY: No, it does not.

DAWSON J: So, if what you are saying is right, there would be no election held in the territory of the Cocos(Keeling) Islands - a federal election.

GUMMOW J: Well, there is definition of the Northern Territory, is there not, in section 4?

MR McCARTHY: Yes. I thank Justice Gummow for drawing that to my attention. It does included Cocos (Keeling) Islands.

DAWSON J: So, they would be just part of - - -

MR McCARTHY: The Division of the Northern Territory, for election purposes. But your Honour the Chief Justice does bring out a good point in relation to 79(2), if I might say that, and put it this way; in relation to the contrary intention under section 4(5), the contrary intention is in relation to section 79(1). It is those election districts for which it may appear that there may be a contrary intention, ie, that they may be there for purposes other than a federal election, and that particular characterisation, of course, would be inapt in relation to section 79(2), which puts together two of our external territories in that way.

Might I also just draw your Honours’ attention to this, that in section 79(3)(c) there is a reference that if it became the case, as it may well do before the turn of this century, that the Northern Territory is divided into two electorates - I think the quota at the present time is over 1.4 and if the quota exceeds 1.5 the Northern Territory will be entitled to another seat - the words in subsection (c) refer to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands being a “District of the Division in which they are included”. It could be the case that the federal Parliament decides that those external Territories as electoral units shall be included in some other Division, as is the case with other of our external Territories.

It does not necessarily follow from the Act that it is always the case that Cocos and Christmas Island are parts of the Northern Territory for electoral purposes, but certainly it is the case that the Act makes clear that anything in relation to the contrary intention in terms of districts is not a reference to those places.

DAWSON J: How does that work out? That means that whilst on your argument the Northern Territory is not divided into subdivisions, the Northern Territory including the Territory of Cocos (Keeling) Islands is and one of those subdivisions, also known as a district, is the Territory of Cocos Islands, but Christmas Island is included within the Northern Territory and is not a subdivision, that is to say is not a district.

MR McCARTHY: No, I think that would apply for both of them, your Honour.

DAWSON J: I do not see how it can. Subsection (2) you say is not affected to the contrary in the definition, therefore, it stands.

MR McCARTHY: Yes, your Honour.

DAWSON J: Therefore, the Cocos Islands are a district and by reason of the definition are a subdivision of the Northern Territory.

MR McCARTHY: No, your Honour. There is no definition of subdivision ‑ ‑ ‑

DAWSON J: No, but it says in section 79 in the definition, does it not - 4(5)? I just want to know how it does work out.

MR McCARTHY: Your Honour, I had read section 4(5) in a way that it was described that:

a reference to a Subdivision shall be read as including a reference to a District of that Territory specified in a notice published under subsection 79(1) -

as being the 79(1)(b) districts.

DAWSON J: All right. If the Territory of Cocos is not included in a notice, then subsection (2) has what effect?

MR McCARTHY: Your Honour, there is never any notice under section 79(1) in relation to Cocos (Keeling) or Christmas Islands.

BRENNAN CJ: Why not? Why is it that subsection (2) does not restrict and direct the exercise of the power of the Commission conferred by 79(1)?

MR McCARTHY: I understand your Honour’s point. I had read it that there was express provision made for the territory of Cocos (Keeling) Islands and in that way are proclaimed as being a part of the Division of the Northern Territory and that under section 79(1) ‑ ‑ ‑

GUMMOW J: But is says “shall be” in (2), you see.

MR McCARTHY: Yes, your Honour.

GUMMOW J: “Shall be”, that is to say when the Electoral Commission is exercising its powers under 79(1) by notice to divide the Northern Territory under (b).

MR McCARTHY: Yes, your Honour.

GUMMOW J: One of the things it is obliged to do, if that is the way of putting it, is to treat the 79(2) territories as one of those districts which is notified under 1(b).

TOOHEY J: Or it may even be that the power is not exercised under 79(1).

GUMMOW J: It may be free standing.

TOOHEY J: Section 79(2) operates by force of the subsection so that if no other districts are created, nevertheless by force of subsection (2) there is to be a district of Cocos (Keeling) Islands and a district of Christmas Island.

MR McCARTHY: Your Honour, I have been struggling to get this out but that is how I read the relationship between section 79(1) and section 79(2), that it was at the discretion of the Electoral Commission as to whether the Northern Territory was divided but that the Cocos and Keeling Island would be by force of subsection (2) made election districts in any event.

DAWSON J: That is what I thought you must be saying, and, therefore, the definition which means that you read a subdivision as including reference to a district does apply to the territory of Cocos (Keeling) Islands although not to the Northern Territory because no contra intention appears in relation to 79(2).That is what I would have thought you said.

MR McCARTHY: Yes. Your Honour, I think that that is so, that regardless of whether the Northern Territory is divided there are two election districts in that way.

BRENNAN CJ: The problem about that ‑ the way in which one would read subsection (2) if it stood by itself is, I would have thought, the way in which Justice Toohey put to you for your consideration. The difficulty about it is that, reading it that way, neither of the districts specified in subsection (2) is a district which is specified in a notice published under 79(1), and if that be so, it is not a subdivision and that raises problems for the operation of section 82. However, I think we understand the way in which you are putting it, Mr McCarthy.

MR McCARTHY: Thank you, your Honour. Your Honour, I am not sure if I can take that much further on that point. Your Honours, in paragraphs 13 and 14, the nature of the problem starts to be stated:

Pursuant to subs.83(1) of the Act, each Roll for each of the 27 districts of the Division of the Northern Territory was in the prescribed form and set out the surname ‑

and so on, then:

Pursuant to subs.99(1) and subs.4(5) of the Act, a person qualified for enrolment who lives in a District of the Division of the Northern Territory, and has so lived for one month last past, is entitled to have his or her name placed on the Roll ‑

and then there is a reference to the effect of 99(3) if there is a district situation where if a person changes enrolment away from the district. Paragraph 15 refers to the Roll reviews that are carried out in Electoral Divisions. Paragraph 16, to Roll reviews specifically that were carried out in the Northern Territory between 1990 and 1996.

Paragraph 16A becomes specifically towards the election where, in relation to the election on 2 March, 3,285 persons signed a certificate or declaration and, of those, 2,088 had had their names removed from the roll of the Northern Territory, and there is reference that most of those roll removals had occurred in 1995. Paragraph 17 begins the details of the election for the Northern Territory that was held on 2 March. Paragraph 18 sets out the details of the taking of the poll. Paragraph 19 sets out the nomination of the candidates. Paragraph 20 refers to the date of the election and that 97,000 electors were at that stage enrolled.

Paragraph 21 refers to polling in the Northern Territory in relation to people attending at the polling booth and there is a reference there to then passing on to paragraph 22, section 235(2) of the Act, which refers to persons whose names do not appear on the electoral roll and the steps they take whereby they may be able to obtain a vote. Then there is set out the form for obtaining what is called a provisional vote. Then the details of what is required for a provisional vote in paragraph 24. Paragraph 25 is B1, which has been added today and sets out the detail for the material that has been distributed by the AEC on provisional voting.

Then in paragraph 26 there is the procedure for the issuing of a provisional vote which involves the completion of a certificate, the issuing of a ballot paper, the completion of a ballot paper and the returning of the certificate and the placing of that in a ballot box for the purpose of scrutiny. Paragraph 27 says that 3,786 provisional votes were cast in the Northern Territory. Then a total of 2,000 postal votes were also involved. That is paragraph 28. Paragraph 29 sets out the total of pre-poll votes and makes reference to how many of those had not been found on the list of the Division or the list for the Division during the scrutiny.

Section 228(1) refers to the procedures, or commences the procedures for the opening of the ballot papers with provisional votes in the beginning of the scrutiny. Paragraph 31 refers to the steps that were taken. That is followed up again in paragraph 32. Then, paragraph 33 refers to the preliminary scrutiny. Paragraph 34 sets out the steps that were taken in terms of the Act for that and then bring in reference to section 266 of the Act which provides for Schedule 3 of the Act to be the way in which declaration, including provisional votes, are to be dealt with. Paragraph 35 makes specific reference to that, and Schedule 3 is set out as annexure C to the case stated.

In paragraph 36 we come to the way that the steps in the Schedule 3 are observed by the DRO in relation to provisional vote envelopes. Paragraph 37 makes reference to numbers in a group that were considered by the DRO but are not directly relevant here. Similarly, with paragraph 38, again as to the steps that were taken to identify various persons in terms of the roll. In paragraph 39 there is reference which is pertinent here as to steps that were taken by the DRO in this sense, that these were in relation to provisional voters who were not on the roll for the Division, that is, their name could not be found in the roll. It was found that:

1071 electors who had signed a certificate or declaration on envelopes in the first group were entitled to be enrolled for the Division and that the name of each of the 1071 electors had been omitted from the Roll “due to an error made by an officer or to a mistake of fact” (within the meaning and for the purpose of para 12 of Schedule 3). Accordingly the DRO for the Division placed these 1071 envelopes into a separate group (being the group identified in para 10(b) of Schedule 3 of the Act).
The DRO for the Division placed the remaining 3285 envelopes into another group (identified in para 10(d) of Schedule 3 of the Act) for envelopes purporting to contain declaration votes but bearing certificates or declarations by persons who were not enrolled for the Division.

Then:

After the return of the writ referred to in para 55 below the names of 31.....persons who had signed a certificate or declaration.....were found to be on the Roll.....None of the votes of these electors have been admitted to the count.

I just stop there for a moment. If the petition’s contentions were accepted by the Court, those votes would be amongst the votes that would be inevitably counted in any further count. Putting it another way, for instance, if the majority in the Northern Territory had been, say, six, that ground alone would have been sufficient for a recount in the Northern Territory; that the 31 persons who had been found now on the roll for the Division had not had their votes counted:

Of the 3285 persons -

this is paragraph 42:

who had signed a certificate or declaration on the envelopes referred to in para 40 above 2587 of them declared that they had a current address within the Division. The remaining 698 persons who had so signed such a certificate.....within the Division but the DRO found that each of them had a current address or an address as last appearing on the Roll which was outside the Division.
In other words, that was a group of persons who claimed they were in the Division now, but their previous address had not been within the Division at all. They were excluded from the count.

DAWSON J: None of this helps us to decide the questions which have been referred. All it does is tell us that the votes may be crucial, that is all.

MR McCARTHY: Yes, your Honour. Your Honour, it becomes crucial at 44 and 45:

In the event that the declaration address and the Roll address of a first group elector was within the same District of the Division, the DRO was satisfied that the name of that elector had been omitted from the Roll for the Division “due to an error made by an officer or to a mistake of fact” (as referred to in para 39 above).
Your Honours, in relation to the actions of the DRO, or the DROs officials in this matter, we are not talking about an individualised assessment in the sense that every vote - they were properly seen to have certain characteristics and, as a result of that characteristic, they were either included or excluded. I mean, realistically, we are talking about AEC rules here; that if an elector within a Division - I am sorry, if an elector, where subdivisions are operating, moved his address within that subdivision but had not notified the DRO and applied for a provisional vote and was given one, it is the rule that that person will be given - his vote will be passed into the count, will be passed into the count.

It is the rule with subdivisions that, if you move across the border of your subdivision, even though you are within the Division, you will not be given a vote. That is uniform - a word that becomes crucial in this case - but that is uniform across Australia. We are not talking about some particular decisions that have been made, but a way in which our Electoral Act is administered.

GUMMOW J: Well, does that not bring one to paragraph 6.5 in Dr Kenny’s submission for the Commission - for the second respondent - which focuses on this 1,594 votes that are crucial. There is a submission put there as to the reason for exclusion which seems to cut across these submissions we have been led to look at on construction of the legislation itself. What is the issue between you thrown up by 6.5 on page 6 of Dr Kenny’s submissions?

MR McCARTHY: Your Honour, I just happened to have brought a series of notes along just on that point or prepared on that point.

GUMMOW J: Because at the moment I am not sure you are at issue, that is what is worrying me.

MR McCARTHY: Your Honour, we are not at issue in this way, that if the Court is of the view that the Northern Territory can properly be divided into election districts of this sort, 25 election districts, and that that is an appropriate use of the AEC’s power under section 79(1) and that is for the purposes of a federal election, then the actions that were taken by the DRO and his officers in the Northern Territory can only be regarded as appropriate under the Act. They have a rule and that is the rule that they follow. The fact that those persons may get a vote elsewhere in Australia would appear to be beside the point, but if it is the case that that is right, then there is no argument about that.

GAUDRON J: But, Mr McCarthy, is not the question whether that is an appropriate use of the power quite a distinct question from the question with which this Court is now faced, whether the power having been exercised that way, the votes fall as the DRO has determined or as you argue?

MR McCARTHY: No, your Honour. I mean, one can frame the question in various forms, but to bring the matter to a head in relation to the orders that this Court faces, one can ask whether that is a proper exercise of the power.

GAUDRON J: I am not too sure. Perhaps we are arguing about the words “proper exercise”. If it is an exercise which is authorised by the statute, that then surely is the end of that issue.

MR McCARTHY: I think that is right.

GAUDRON J: Yes, and if it is one which you challenge for improper motive or something of that nature, that is not a matter that is before this Court.

MR McCARTHY: I am not sure that that is right, your Honour. We say that it is passed down the line. If there has been a misuse of a power to divide the Northern Territory that has flowed on.

GAUDRON J: Well, there is nothing before this Court on which it could make a decision on that issue in any event.

MR McCARTHY: Well, your Honour, we would submit that the divisional returning officer and his officers in the Northern Territory were carrying out a scrutiny of provisional voters in such a way that excluded these voters because they were treating something that had been carried out for non‑federal purposes as being relevant for federal purposes as much as their Chief Electoral Officer or the Australian Electoral Commission had itself. In other words, what is the problem in relation to the effect of what has being done on the uniform franchise which is what our core submission has been, that is, there are different ways of treating electors in different seats.

If that is so, that flows on to the very actions of the divisional returning officers but it is the question of whether that is an appropriate question to have taken, whether it was by the AEC or through those that administered the Act in this way, that is the DROs, that is in issue here. That is the way in which we would put it, your Honour. Hopefully, that would not be regarded, or we would submit that should not be regarded by the Court as an inappropriate connection or as inadequately put, but it is that level that we make the challenge, that just as the seat should not have been divided in this way for federal purposes, those officers should not have excluded those electors for federal purposes if they are using electoral districts that do not have federal purposes as the test for why they are there.

BRENNAN CJ: Mr McCarthy, let me see if I understand correctly the way in which you are meeting paragraph 6.5 of Dr Kenny’s submissions. Is this your argument? There is but one roll for the Northern Territory on a true construction of the Act?

MR McCARTHY: Yes.

BRENNAN CJ: That the DRO was therefore concerned with section 235 votes in which there were an absence of the names of the applicants for votes on that roll? Those names were not on that roll because there was a mistake of fact on the part of the DRO in not having them on the roll for the Northern Territory.

MR McCARTHY: That is correct.

BRENNAN CJ: It does not matter for these purposes how it was that they are not on the roll for the Northern Territory. They simply were not there.

MR McCARTHY: That is so. They were omitted.

BRENNAN CJ: They were omitted even though they were residents of the Northern Territory?

MR McCARTHY: Yes.

BRENNAN CJ: And that pursuant to Schedule 3 of the Act as it was understood by the DRO or found by him, whichever way you like to put it, that they were residents of the Northern Territory entitled to vote within the Division of the Northern Territory, there being no relevant subdivisions. There was a mistake on his part in not having their name on the roll for the Northern Territory and, therefore, he was bound to include it in the scrutiny. Is that the way you put it?

MR McCARTHY: Yes, it is, your Honour.

BRENNAN CJ: There are number of steps in that which, of course, you have to make good.

MR McCARTHY: Yes, but, your Honour, that is the basis on which we would connect it. Your Honours, in paragraph 45 we come to the problem. The declaration address and the roll address of a first group elector was in different districts of the Division. The DRO was not satisfied that the roll of the elector had been omitted from the roll due to an error made by an officer or a mistake of fact. Of the 2,587 envelopes referred to in paragraph 42 above, 1,594 were placed in a group identified in paragraph 10(d) of Schedule 3.

In all Divisions for the election of Members of the House of Representatives, other than the Division of Kalgoorlie and the Division of the Northern Territory, the DRO would have been satisfied that the name of an elector had been omitted from the roll for the Division due to an error made by an officer or to a mistake of fact if the declaration address and the last current or enrolled address of the elector was within the Division in which he or she claimed to vote.

In the event that the name of the first group elector had never previously been included on the roll, the DRO was not satisfied. Then in paragraph 47, there is the number of votes that were excluded in relation to these Divisions. Then we go on from there to what the final count was, which is relevant for bringing the issue before the Court of Disputed Returns in that the majority is 627; the number of affected provisional votes is 1,594 which far exceeds the majority. The rest of the case then refers to the formal election of Mr Dondas.

Your Honours, the reserved question is then set out at page 31 and, as your Honours are aware from the order that has been handed up, that has been altered to include the words “having regard to the fact” now “having regard to the facts and matters stated” in the Stated Case, in particular paragraphs 43, 44, 45 and 47”. Your Honours, I have, pursuant to the orders of the Court, handed up written submissions and my learned friends have replied. I have given further consideration to various of the matters that have been raised by them and I would wish to address the Court in relation to that. However, to hopefully facilitate that, I would seek leave also to hand to the Court an outline of those submissions that I would ‑ and I will give two copies to ‑ ‑ ‑

BRENNAN CJ: This is in reply, is it?

MR McCARTHY: In effect, yes.

BRENNAN CJ: Well, before you get to that stage, what is the mistake of fact on which you rely?

MR McCARTHY: That he regarded the provisional voter, because he had changed his address outside of his district, as not being eligible to be included in the count for the Division of the Northern Territory, even though he resided there and was otherwise qualified to vote.

BRENNAN CJ: Was he entitled to remove the names of those voters, first of all?

MR McCARTHY: Yes, as much as his ‑ ‑ ‑

BRENNAN CJ: Under what section?

MR McCARTHY: Section 114 and the other sections of the Act, as much as, your Honour, if I might say so - and this is not really in dispute - that the procedures that were carried out there are those that are carried in all the other Divisions in the Australian electoral system by the ‑ ‑ ‑

GUMMOW J: It cannot be 114, Mr McCarthy.

MR McCARTHY: This is the objection provision.

GUMMOW J: Yes.

MR McCARTHY: I had understood the Chief Justice to ask, Justice Gummow, what is the procedure whereby ‑ ‑ ‑

BRENNAN CJ: What I want to know is, if you are saying that there was a mistake, it was a mistake with respect to a person who had been on an electoral roll and was removed from the electoral roll, and so it seems to me that the mistake must relate either to the removal from the roll, or to a failure, after removal, to reinstate on a roll; now, what is the mistake and what are the provisions which govern the exercise, either of the power of removal, or of the power to return the name of a removed elector to the roll.

MR McCARTHY: Your Honour, there is a process of objection that is exercised through section 114 and section 115. The way in which the ‑ ‑ ‑

GUMMOW J: That is a process of objecting to something that has been done. What is the source of the power to do an act, the doing of which brings forth the objection?

MR McCARTHY: Your Honour, alternations to the roll can take place through section 105 which gives various powers to the Divisional Returning Officer in relation to altering the roll, to reinstating any name under (e) and to removing various names.

GAUDRON J: There is removing the name of any deceased elector in paragraph (c) looking at section 105; where else?

MR McCARTHY: There is the objection procedure and that goes from section 114 through then to determination of an objection under section 118. Under section 118(3) there appear this:

If it appears to the DRO that the challenged elector is not entitled to be enrolled for the relevant Subdivision, the DRO shall remove the elector’s name from the Roll for that Subdivision.

So that where the mistake occurs in relation to ‑ ‑ ‑

GAUDRON J: Do we know whether there were objections in this case? No.

MR McCARTHY: Yes, we do. It is set out in the agreed facts, your Honour, as to what was carried out - paragraphs 15, 16, 16A.:

Pursuant to subs. 92(2) of the Act, the Commission causes reviews to be conducted of the Rolls for each Electoral Division with a view to ascertaining such information ‑ ‑ ‑

GAUDRON J: So we are looking at section 92(2), not the objection procedure through from section 114 to section 115?

MR McCARTHY: The procedure, certainly, your Honour, is that that is authorised for roll reviews, but the actual process whereby a person is removed from the roll, as I had understood it, was through the objection process, and I thought that that was what had been agreed. Pursuant to the provisions of Part IX ‑ ‑ ‑

BRENNAN CJ: That is the objection procedures.

MR McCARTHY: I am sorry, your Honour; I had thought it was the objection procedures that we had included. It says in section 16:

Pursuant to and in accordance with the provisions of Part IX of the Act -

which is section 118:

the Divisional Returning Officer (“DRO”) for the Division from time to time.....removed the names of electors from one or other of the Rolls for the Districts which form part of the Roll for the Division of the Northern Territory. The DRO did not so remove the name of any elector during the period between the issue of the writ -

What we are stating is that it is the objections procedure whereby these names were removed. Paragraph 16A then picks up that of those that have signed declarations:

2088 had had their names removed from the Roll for the Division of the Northern Territory in accordance with the provisions of Part IX of the Act.

So it was under section 118 that their names were removed.

DAWSON J: Just so that I can get my mind clear, Mr McCarthy, that means that so far as names which did not appear on the roll for the district may either have not been there ever or had been removed.

MR McCARTHY: This is on polling day, your Honour?

DAWSON J: Yes.

MR McCARTHY: On polling day their names had been removed.

DAWSON J: When someone turns up to vote and it is said, “Well, your name is not there,” and that turns out to be true, that is either because the name was never there or it had been removed.

MR McCARTHY: Yes.

DAWSON J: But do we know whether ‑ ‑ ‑

MR McCARTHY: But that is the same for a person who lives within the subdivision.

DAWSON J: Yes, quite.

MR McCARTHY: And what they do is check the roll, and if you have just changed within your district they will put you back on the roll.

DAWSON J: Yes, exactly. I appreciate that point, but do we know whether a person who had turned up in a particular district and his name was not on the roll may have had his name on the roll of another district?

MR McCARTHY: Yes, that is referred to in a paragraph and what happens there is that ‑ ‑ ‑

DAWSON J: You direct me to the paragraph.

MR McCARTHY: I will. Yes, it is the second sentence of 42:

698 persons who had so signed such a certificate or declaration had each declared (on the relevant envelope) an address within the Division but the DRO found that each of them had a current address or an address as last appearing on the Roll which was outside the Division.

BRENNAN CJ: No, that is not the one. That is outside the Division, that is outside the Northern Territory. We are not concerned with those. We are concerned with the ones in 45, are we not?

MR McCARTHY: Yes.

BRENNAN CJ: That is, the ones who have moved from one subdivision to another.

MR McCARTHY: Yes.

BRENNAN CJ: That is paragraph 45, not 42.

MR McCARTHY: I am sorry, I had misunderstood Justice Dawson’s inquiry, if that is the case.

DAWSON J: That is right.

MR McCARTHY: I had thought you were talking about people who were outside the Division.

DAWSON J: No, whose names did not appear on the district in which they claimed to be but did appear in the roll for another district.

MR McCARTHY: No, they would not be the subject of - their votes would have gone in, your Honour. I am just wondering whether ‑ ‑ ‑

DAWSON J: Paragraph 45 suggests they did not.

MR McCARTHY: I am just trying to understand your point. In Paragraph 45 goes to ‑ ‑ ‑

DAWSON J: The point is this: if I turned up and said that I want to vote in a particular district and the returning officer said to me, “Your name is not on the roll for this district” and that turns out to be correct but on consulting the roll for another district within the Division my name does appear, what happens then?

MR McCARTHY: Those persons would be passed into the count, your Honour. They are not the subject of this challenge. They would have got a vote.

DAWSON J: You would vote.

MR McCARTHY: Yes, they were on the roll for the Division. They are on the roll.

DAWSON J: Well, that is the point in relation to 6.5? The reason then would be why persons were refused the opportunity to vote. It would be because they were not on the role for the Division and not a district. That is the only point I want to clear up. That is right and then you rely on the proposition as was put to you by the Chief Justice that the whole system was devised on a district basis and that is what you complain of.

MR McCARTHY: Yes, your Honour, and we pass up that way.

DAWSON J: Now I understand.

MR McCARTHY: Yes, thank you.

BRENNAN CJ: Can I just ask one further question in relation to 118? How does 118 work, in particular 118(3), if, in accordance with the submission with which you opened this morning, there are no subdivisions in the Northern Territory?

GUMMOW J: In other words, how does one fit section 4(5) into 118?

GAUDRON J: You say it applies if a person has moved to a different State.

MR McCARTHY: Yes, I would just read it as Division as they do in the other 146 seats.

GUMMOW J: Yes.

MR McCARTHY: Your Honour, there is nothing unusual that is wanted in the Northern Territory, it is just what is done everywhere else.

GUMMOW J: Though there could be practical difficulties for then using the roll for intra-Northern Territory election purposes.

MR McCARTHY: That is a matter for the Northern Territory, your Honour.

GUMMOW J: Yes, quite.

MR McCARTHY: In terms of considerations that would be ‑ ‑ ‑

GUMMOW J: It would make the common roll system rather awkward or it could, anyway.

MR McCARTHY: It could do that, though with the marvels of modern science, your Honour, anything seems to be possible, particularly if you want to throw money at it but elsewhere, your Honour, the word “subdivision” is read as “Division” and it acts from there. An example of where that order is appropriate is if the person has moved interstate or if a person has moved from one division to another and that is how, as I understand it, the AEC and the DRO administered that particular provision elsewhere in Australia.

GAUDRON J: The Act is a rather blunt instrument, is it not, for the other ‑ ‑ ‑

MR McCARTHY: Like a brick, your Honour.

GAUDRON J: Yes, its drafting deficiencies are numerous and manifold.

MR McCARTHY: I think that that may be right, your Honour. The only matter of concern that I would have there is that it is something that the Parliament believes they all have particular expertise about, and have always considered that they had that expertise from very early in the century. But, yes, it is something that perhaps is not renown for its subtleties and, certainly, the lack of subtlety as to what can happen in the application of the Act is fairly well demonstrated by the matter that is before you this morning. Your Honours, would it be convenient to hand the balance of what I hope would be my submissions to your Honours now?

BRENNAN CJ: Yes, thank you, Mr McCarthy.

GUMMOW J: Does it clearly appear somewhere in the agreed materials, Mr McCarthy, that the 1,594 persons we are concerned with were residents of the Territory at all times that are material? As distinct from people who left the Territory.

MR McCARTHY: It does not, your Honour. I am not sure that it is - - -

GUMMOW J: But is it agreed?

MR McCARTHY: It would be agreed that - - -

GUMMOW J: Because your point is, is it not, that these people should have been on the roll at the relevant date for the Northern Territory and should have voted?

MR McCARTHY: Yes, your Honour, it is certainly - - -

GUMMOW J: That they should never have been taken off under 108(3)?

MR McCARTHY: That is right. Your Honour, I would submit the case is consistent with their not having left the Territory.

GUMMOW J: Then there are the paragraph 42 people as well.

MR McCARTHY: Well, the paragraph 42 people - - -

GUMMOW J: That talks about address outside the Division. Is that accepted as meaning, as the Act might suggest, outside the Northern Territory?

MR McCARTHY: In this case it does. In this case it does. And certainly it is agreed that that is what is meant there.

GUMMOW J: So, we can proceed on that point?

MR McCARTHY: Well, yes, your Honour. Your Honour, I will not try your patience over how various numbers may have emerged at various stages, but your Honour may have noticed a discrepancy between what the figures started off with and where the figures finished. Your Honour has put your finger on what was thought to be a part of this claim, and turned out not to be part of this claim.

GUMMOW J: I see.

MR McCARTHY: The issue that your Honour is specifically referring to has been addressed in the stated case and the numbers have been adjusted because of that. I was under the impression that those people were included in this particular claim, and it turns out that they are not, so the assumption is around the other way.

BRENNAN CJ: Mr McCarthy, so far as the facts are concerned that are relevant to those votes that were cast and mentioned in paragraph 45, the only facts that we have are that the person claiming the vote has an address within the Territory and, at some earlier time, had an address also within the Territory, but within a district different from the district at which that person now resides.

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: That is the only fact.

MR McCARTHY: And they are the facts on which the DRO operate.

BRENNAN CJ: Yes. So as I understood the submissions that you are putting thus far, the mistake consists in the removal of that person’s name from the roll pursuant to section 118, is that right?

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: Rather than a failure to put that person on the roll in respect of the District in which that person now resides? I ask that question because the question reserved, you understand, refers to two (a) and (b) paragraphs which rolls you are speaking about. Your mistake, as I understand it at the moment, is pinning itself to the removal.

MR McCARTHY: Have we tied it down that closely? I would have thought it was in two ways, your Honour.

BRENNAN CJ: That is what I am asking you.

MR McCARTHY: The removal - this is a matter that is judged on hindsight because we are dealing with provisional votes during the scrutiny. Now, it could be taken that on the information that they had, they should never have removed it from the roll and certainly to that extent, your Honour, that is my submission. But I would also say the mistake could also include that having the information that they had in front of them, they did not reinstate the person to the roll. That is the other one.

GAUDRON J: Is it reinstatement or in not holding that they were removed from the roll in error by mistake?

MR McCARTHY: That is probably a more apt way to state it, your Honour, but in relation to provisional votes there are the steps that need to be taken that lead to a view that you can do it. Section 105(4) your Honours, says this:

Where, at a preliminary scrutiny of declaration votes, a vote is admitted to further scrutiny because of paragraph 12 of Schedule 3, the Divisional Returning Officer shall, as soon as practicable, enter the name of the elector on the Roll for the Subdivision for which, but for an error or mistake, the name would have appeared unless, since the close of the Rolls for the election, the person had been enrolled for another Subdivision.

It is a step that is involved.

TOOHEY J: But does not paragraph 6.5 of the second respondent’s submission open an area of factual dispute? This is the paragraph to which reference was made earlier where it said that the exclusion was not because of any Division of the Territory and the districts, but because those individuals were not enrolled on the roll for the Division, not for a particular district but for the Division and the DRO was not satisfied that any of the individuals were entitled to be enrolled.

MR McCARTHY: I cannot speak for Dr Kenny, your Honour. I really think that is a conclusion of law. We are not in dispute about facts. One of the differences between the parties is this, that paragraph 12 in Schedule 3 in a first characteristic and that is encompassed in the case stated, has words about a person:

that the elector was, at the time of voting, entitled to be enrolled for the Division ‑ - -

GUMMOW J: This is page 293 of the print?

MR McCARTHY: Yes, your Honour. This is the DRO going through his exercise. Was the elector, at the time of voting, entitled to be enrolled for the Division? Now, under the election districts as subdivisions test, what the two respondents maintain is that to be entitled to be enrolled for the Division means that you are enrolled for the subdivision or entitled to be enrolled for the subdivision. Now, I do not think, your Honour, that ‑ again, as I said, I am not speaking for ‑ I do not think Dr Kenny meant more than that, that is that they were not entitled to be enrolled for the subdivision or for the election district and, therefore, they were not entitled to be enrolled for the Division because, under the building blocks system of Divisions and subdivisions as set out in section 82(1), you could not be in a situation, if you had subdivisions, to be on the electoral roll for the Division without being on the electoral roll for the subdivision and it was in that way that these persons were excluded. So, I do not ‑ ‑ ‑

TOOHEY J: Well, we may have to wait and see what Dr Kenny has to say.

MR McCARTHY: I think it is a conclusion of law that is being stated there, your Honour. I do not see that as being any ‑ there is no dispute of fact between us in relation to that.

BRENNAN CJ: There is no dispute of fact that the DRO was not satisfied. The question which is reserved is whether or not the DRO was bound to be satisfied and, as I understand it, that question is to be answered according to the facts which are set out in paragraphs 42 to 45. Is that right?

MR McCARTHY: Yes, that is correct and, to the extent that there is any suggestion that those facts are in dispute, I do not think they are in dispute.

BRENNAN CJ: And to the extent to which there is any deficiency of facts necessary to a conclusion, there is no agreement as to where the onus lies?

MR McCARTHY: That is true, but I do not think any of the parties were at least consciously aware of having come before the Court so grievously as to have a deficiency of sufficient facts to raise the issues. That is certainly not my perception of the matter, your Honour.

BRENNAN CJ: It may not be a matter of deficiency that was in any way curable. It is simply that the DRO, in exercising his functions under Schedule 3 paragraph 12(b), was faced with the facts no more and no less than those which are set out in paragraphs 42 to 45.

MR McCARTHY: Yes.

BRENNAN CJ: So the question is, on those facts was the Divisional Returning Officer bound to come to the conclusion which resulted in the inclusion of those votes in the scrutiny?

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: Yes.

MR McCARTHY: Your Honours, in the further submissions that have been put forward ‑ ‑ ‑

BRENNAN CJ: Before you get to the future submissions, what do you say about the question of contrary intention? What are the factors which lead to the contrary intention?

MR McCARTHY: Your Honour, it was an elaboration of that argument that I put in the further submissions and if I might be permitted just to put that. What I would regard as one of my strongest arguments in relation to that I have tried to set out here.

BRENNAN CJ: Perhaps it is rather a pity that it was not included to start with, Mr McCarthy.

MR McCARTHY: Your Honour, I thought I had said sufficient, but I hope that this will assist also. Your Honours, paragraphs 45 and 45A of the stated case on page 28 discloses that the provisional voters are not dealt with in the same way by the AEC in all the federal Divisions of the House of Representatives. The Commonwealth Electoral Act, the CEA, Part VII, the Qualifications and Disqualifications for Enrolment and for Voting, was in origin the Commonwealth Franchise Act 1902, the provisions of which were incorporated into and amended as part of the CEA since 1918. The Commonwealth Franchise Act No 8 of 1902 was entitled “An Act to Provide An Uniform Federal Franchise”.

I have set out there two major cases of this Court where the question of a uniform federal franchise or the Act has been considered, being Pearson and in various parts in McGinty last year. As the references are not particularly long, your Honours, I would wish to just quote to the Court what was said in those decisions on those points.

GUMMOW J: But how does this all go to the contrary intention?

MR McCARTHY: Your Honour, what I am saying is this, is that by this Act the Commonwealth Parliament has provided for a uniform electorate in respect of a referendum under section 128 of the Constitution and continues to do so through the CEA and I set out the referendum machinery provisions, making reference to the fact that the qualifications of electors and Members of the House of Representatives become uniform throughout Australia is what was proposed as being the way in which a Commonwealth electorate was to be formed, that we have a situation where we have referendum machinery that is dependent upon an elector being entitled to vote for a referendum the same as for an election, that they are treated in the same way under a constitutional referendum proposal and under the CEA and I say it is said and it follows that the provisional voters referred to in paragraph 45 of the stated case would have had their votes rejected in a referendum while similar voters in other Divisions would have had their votes counted and it is submitted that this is not a uniform franchise.

At 8: It is simply inconceivable that the Commonwealth Parliament intended in the interpretation of the administration of the CEA, that there not be a uniform franchise. In the light of the constitutional implications of lack of uniformity in the franchise, section 128 of the Constitution, it is submitted that only an express provision by Parliament providing in the CEA a non‑uniform franchise with consequent reversion to the primitive voting system for a referendum set out in section 128, would achieve such a purpose. The uniform franchise should not be undermined by AEC administrative action through section 79(1)(a) and (b). The proviso in section 4(5) prevents the creation of election districts in the Northern Territory from having such an effect on the franchise.

It is submitted that if the proclamation of election districts in the Northern Territory has this effect, ie for provisional voters, then a contrary intention emerges and the proviso in section 4(5) becomes operative. It is further submitted that this Court consider the CEA, Part VII, Part VIII and Part XVII in the context that it would be unlikely, 96 years after the establishment of the Australian Federation and 94 years after the passing of the Uniform Franchise Act, that the House of Representatives would be described for the purpose of section 24 of the Constitution of being directly chosen by the people of the Commonwealth if it were elected other than on a uniform franchise. This was recognised in Attorney‑General of the Commonwealth (Ex Rel McKinlay) v The Commonwealth of Australia (1975) 135 CLR where Justices McTiernan and Jacobs said:

At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth. For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s.30, anything less than this could now be described as a choice by the people.

More recently in McGinty, the point made by Justices McTiernan and Jacobs was specifically adopted by Justice Gummow at page 272, if I can go to McGinty ‑ ‑ ‑

GUMMOW J: Before you take us to all that again, it is said against you that there is a distinction between having the right to vote and establishing the necessary facts to get you on the roll. This case is about the latter not the former. This is a machinery case.

MR McCARTHY: You could say that about the other 146 Divisions too.

GUMMOW J: Yes.

MR McCARTHY: You are over the border in Gray or if you are out in Kennedy and you are in exactly this situation, you will get a vote and it is not a machinery point. It is a consistent application of the franchise in this country that is being considered here and one can take whatever approach about machinery as may be thought appropriate but, your Honour, at the end of the day, the fact of the matter is that there are certain electors who will get votes in circumstances where other electors will not.

BRENNAN CJ: This is one of the problems that puzzles me, I must confess, about this case. Why is it that in Kennedy you get the vote if you are in this situation? What is the mistake there that is thought to enliven the power to admit the vote under paragraph 12 of Schedule 3?

MR McCARTHY: He moved within the Division.

BRENNAN CJ: If somebody has been legitimately removed from a roll - they have moved from the place that they are noted on the roll as being resident in, if they are legitimately removed from the roll, why is it because they have now still living in the Division that they get a vote? I do not understand it.

MR McCARTHY: Your Honour, there are two things that are involved. If you read “subdivision” to be “Division” it is viewed as being the fact that you were always entitled to be on the roll if you live within the Division, and they should not have removed your name.

BRENNAN CJ: Even though you have changed your address.

MR McCARTHY: Had not notified.

BRENNAN CJ: That takes you back to the question of whether or not you are entitled to have your name removed if you have moved your address. Does it, or does it not?

MR McCARTHY: Under the Act, it does.

BRENNAN CJ: If it does, what does it matter that you have gone somewhere else and you have not made an application?

MR McCARTHY: The ultimate object of this is to have our Parliament elected.

BRENNAN CJ: I can see all the advantages of the argument that you are putting forward. It simply is a matter of construction of the Act. It seems to me that if you are liable to have your name removed because you have changed your address and you have not notified the new address, then what is the error or mistake that enlivens the power of the DRO to admit your vote when you go along under section 235?

MR McCARTHY: You may have moved. Broadly speaking it is this - it is two things. Over this matter, to their credit, and properly following election law, the AEC favours the franchise; they favour the voter. He has at least made the effort to come to the polling place on polling day. He is not an Australian who has not complied with the other requirements such as compulsory voting, he has actually come. He has been found to be on the roll, he is still in the electorate, and they say, “All right, he may not have been found. He may not have been notified. He may not have got the notice. He may just not have taken the trouble. But, here he is; he lives in the electorate, he is on the roll, he has made the effort to come along”, as has been a whole history of cases going back to old cases on election law. When you have someone in front of you who is struggling to vote; who wants to carry out the franchise, you do not take it away from him.

BRENNAN CJ: He is such a splendid fellow that you say, “I have made a mistake”.

MR McCARTHY: That is right.

BRENNAN CJ: Yes. Well, I understand that.

MR McCARTHY: That is right.

BRENNAN CJ: That is what happens.

MR McCARTHY: And that is what the Australian - - -

GAUDRON J: Is the mistake not something along these lines; an assumption is made that by leaving your address you have left the district, or the Division, or whatever it is, whichever you are talking of? The assumption is proved to be wrong by the person turning up to vote, and that is the mistake or error - error or mistake of fact.

MR McCARTHY: Yes. Or it could be taken to be a term of art, your Honour. You could run that together. But that is the rationalisation - I am sorry, that is the way it is officially viewed. I would say, your Honour, that some of the reasons I have outlined are the reasons why that approach is taken to that; that someone is there, they have complied. There is no doubt under the Act that you are required to notify - I think all the Court accepts that that is there, and that when you have changed your address, even if you change your address within the Division, you are supposed to do that. But you did not notify, but you have come to vote. On polling day you are found to be on the roll and they take it as being a mistake in that way. Your Honour the Chief Justice, that is what happens in the rest of the Australian Divisions.

BRENNAN CJ: Yes, and a splendid thing it is, too, I am sure, and for the very reason Justice Gaudron put to you. I would just like to know how it fits in with the Act, that is all. Where is it that says - just to take Justice Gaudron’s proposition, where is it that says that if they have removed themselves from their address they are presumed not to live within the Division? The assumption is made, yes.

GAUDRON J: The assumption is made, I think, by the person compiling the rolls.

MR McCARTHY: Yes.

BRENNAN CJ: Well, now, that seems a very slender assumption. But is there any statutory provision which governs that?

GAUDRON J: You have to come back to Part IX, do you not?

MR McCARTHY: Yes, it does. There is - - -

BRENNAN CJ: Well, that will take you back, will it not, to Part VII, the qualification for enrolment. Perhaps we can leave this until we hear from Dr Kenny, who, no doubt, is fully alive to all these implications.

MR McCARTHY: Your Honour, the challenge is - the objections are done through Part III. Section 116 sets out the notice of the objection. What we have in the agreed facts, your Honours, is the situation where there have been roll reviews that go through and, if a person is not found at an address, he is taken - the assumption is adopted that he has left the district, and it is on that reason that they act. They only discover later that the mistake is that he has not left the Division - he or she has not left the Division or the district at all and they put it back.

BRENNAN CJ: Well, you have probably assisted us as far as you can, Mr McCarthy.

MR McCARTHY: Your Honour, section 105 allows the powers to come back - about:

reinstating any name removed by mistake.

That is section 105(1)(g). (f) says:

where an officer is satisfied that an objection against the enrolment of an elector whose name has been deleted from the Roll as a result of the objection was based on a mistake of fact and that the person objected to still retains and has continuously retained his or her right to the enrolment in respect of which the objection was made - reinstating on the Roll the name of the elector.

Now, your Honour, I know I am not going far to answering your question as to why, I am only pointing out procedures whereby this is brought about, but your Honour pointed to some sections of the Act that take care of this. Section 105(1)(f) would be one of the key provisions whereby this is explicated as to how the AEC carries out that particular function.

Your Honours, in the matter of Pearson, there was a reference to the uniform roll. I take your Honours to page 278 in the judgment of Justices Brennan, Deane and Dawson in that case. At the top of page 278, there is a discussion of what was the constitutional franchise which is a reference to section 30 of the Constitution and then this:

That definition of the constitutional franchise was to yield to a statutory franchise when the Parliament, thereunto empowered by s 51(xxxvi), defined the qualification of electors throughout the Commonwealth. It was anticipated that, at some time after Federation, the Parliament would enact a uniform qualification of electors of members of the Parliament. Section 128 made particular provision for halving the votes cast in referenda in any State in which adult suffrage prevailed “until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth”.

At page 279, there appears this, at the bottom of the page, last sentence:

After the Parliament enacted the Commonwealth Franchise Act 1902, which was entitled “An Act to provide for an Uniform Federal Franchise”, no person could acquire the right to vote at federal elections save in accordance with its terms.

The reference there is to a uniform federal franchise. That was one of the characteristics of the franchise as the Court saw it there that was introduced by the Parliament to exercise the power that the Commonwealth Parliament had to provide for an electoral system and eventually to spend the provision, so to speak, of section 41.

Now, more recently, in relation to the recognition of there being a uniform franchise, Justice McHugh in McGinty said this at page 247 in the left‑hand column, talking of representations, picking up at about F:

That being so, it seems unlikely that s 24 was concerned with equal representation for equal numbers of voters in each State. Thus s 30 confirms the view that equality of voting power for the adult people of Australia is not a constitutional requirement. The refusal of the Convention delegates to provide for universal suffrage in the Constitution is itself eloquent evidence that such matters as the franchise and the size of electoral divisions were matters for the States until the Parliament legislated.

And that relates, of course, to the Pearson Case. At 247, there is this reference again to the power:

the federal Parliament decided to legislation.....ss 29, 30 and 31 gave it the power to determine the size and nature of the electoral divisions in each State and the nature of the franchise as well as other electoral matters.

And, at 248, in the left‑hand column, at about point 3, there is this:

The Constitution makes the federal Parliament the final arbiter on this matter just as it makes the federal Parliament the final arbiter on whether there should be universal suffrage, secret ballot, preferential or proportional voting or first past the post voting.

Now, at 270 in McGinty, his Honour Justice Gummow, in the left‑hand column, referring to relationships between State laws and federal laws, and then referred to, at point 3:

Further, until the qualification of electors of members of the House of Representatives became uniform throughout the Commonwealth (by reason of the adult franchise conferred by s 3 of the Commonwealth Franchise Act 1902 (Cth)), s 128 provided that in any State with adult suffrage only one‑half of electors voting for or against a referendum were to be counted.

Again, the reference is to uniform franchise and to the bringing about of that as being the intention of the Commonwealth Franchise Act 1902. Your Honours, in relation to the McKinlay reference I quoted at paragraph 10 of my submissions the reference by Justices McTiernan and Jacobs, at page 272 in McGinty your Honour Justice Gummow at point 8 had this to say:

I would, with respect, also agree with the point made by McTiernan and Jacobs JJ in McKinlay that, when it arises, such a question is to be determined by reference to the particular stage which then has been reached in the evolution of representative government. By way of example, for both Commonwealth and State elections, provision has been made for more than 20 years for 18 as the minimum age for voters. An even plainer example is the now long‑established universal adult suffrage. This has become a characteristic of popular election of senators and members of the House of Representatives which could not be abrogated by reversion to the system which operated in one or more colonies at the time of federation. In my opinion, this is so notwithstanding that ss 8 and 30 of the Constitution, subject to the prevention of plural voting, permitted the qualification of electors to be ascertained in that way, until the federal Parliament otherwise provided.

In the same case of McGinty there is also reference to those remarks and statement by Justices Jacobs and McTiernan by Justice Toohey at page 223 where his Honour says, talking about the franchise in 1900:

For instance, the franchise did not include all, or even a majority, of the population. But according to today’s standards, a system which denied universal adult franchise would fall short of a basic requirement of representative democracy. The point is that, while the essence of representative democracy remains unchanged, the method of giving expression to the concept varies over time and according to changes in society. It is the current perception which is embodied in the Australian Constitution. The point was made by McTiernan and Jacobs JJ in McKinlay -

and there is the quote that I have referred to before going down to:

It is a question of degree.”
Likewise, around 1900 the method of choosing representatives involved significant inequality in voting power.

Then there is references to that, but I would draw the Court’s attention to the point about universal suffrage being a characteristic of representative democracy.

Your Honours, the points of all that submission is this, that it is in that way, in our submission, that the Court can glean, not extrinsic to the Act, but intrinsic within the Act itself, that there is an intention for there to be a uniform franchise in Australia. That that is what the Act, in terms of its enrolment and qualifications sections; its relationship to their referendum proposals; its reference to the Constitution in section 24 is attempting to achieve. Not only was that something that the Court can glean in terms of the objects in the 1900s in our first generation, but also subsequent to that.

I hand up - it came to me late - but, the redoubtable Sir William Lyne was the Minister for Home Affairs in the Barton government, that introduced the Franchise Act, and in the Parliament of the day, where he spent most of his time in self‑congratulation over the fact that he had enfranchised most of the Australian women, and that was no mean historical feat by this Act - the Commonwealth Franchise Act - he said this:

If uniformity is to be observed, and electoral equality is to be maintained throughout the Commonwealth, adult franchise in the whole of the six States is imperative.

“If uniformity is to be observed, and electoral equality is to be maintained”. Those words have only been reflected in judgments of this Court through the years since that time to such an extent that to hold to the contrary, in our respectful submission, would be to raise matters that have constitutional implications. In other words, if the Court recognises that it is the case that in one section of the Australian electorate there is a certain rule or provision as to electors and their entitlement to vote, and there is another rule that is applying elsewhere, then the Court can move to what is the consistent uniform approach and, under section 4(5), if that is arising out of the use of election districts in the Northern Territory, the Court can glean a contrary intention and, as a consequence, may find that the use of election districts to produce that non‑uniformity, is not to be countenanced. In other words, it is a misuse.

Your Honours, the position in relation to the use of section 79(1) in the Northern Territory and its effect on the franchise is put to you in two ways. The first is this, that it is manifest that 25 election districts in their origin, in their composition, in their continuance have nothing to do with federal elections, they are all to do with the Northern Territory, the touchstone being that the Northern Territory Parliament prepares those boundaries themselves and, in effect, mails them to the AEC who proclaims them under section 79(1). That is not for a federal purpose. The AEC has said as much.

To use the power under section 79(1) to affect the federal franchise for something that was not a federal purpose is to misuse that power and that is what has happened with the Electoral Commissioner in this matter. It is something the Parliament knows, it is as clear as crystal. This is the largest number of election districts that an Australian federal electorate has had. It is done up there in an age when they have been abolished elsewhere and where even a so-called Division such as Kalgoorlie only has two electoral Divisions. That is the first point.

The second point that is put forward in support of that proposition is a wider thing. The franchise, the uniform franchise that is envisaged under the Commonwealth Electoral Act means that you will be admitted or excluded from voting on the same basis regardless of whether you are in Alice Springs or in Hobart or in Cairns or in Albany. In the Commonwealth of Australia there is a uniform franchise. If it is recognised that steps can be taken that brings about a derogation from that and that affects the voting or the admission of voting, that is a ground and an error in itself.

What we are submitting, your Honours, in that respect is this, that even in relation to Kalgoorlie, even in relation to any power whereby the AEC subdivides electorates, if it has the effect of derogating from a uniform franchise, then that is a use that would be improper and would not be a use that would be recognised, if it affected the franchise, by a Court of Disputed Returns.

In other words, your Honours, we would say that you will either have a uniform basis through dividing all seats into subdivisions as was the situation down until the 1980s. This question that we have before us is very much related to time and to place. It could not take place before 1983. As your Honours are aware, down to that time, every Division of the federal Parliament was required to be subdivided. Mr Reeves set out in his submission the full history of this in relation to the Northern Territory. What is unremarkable about that history is the same history could have been given for all the seats of the federal Parliament down to the 1980s. They all had subdivisions within them.

Now, after 1983, we had a situation where subdivisions were phased out. First of all, a statutory provision made them optional. Section 79(1) replaced the old section 26. Secondly, the Act introduced the concept of election districts for the Northern Territory. In those circumstances where it could thereafter affect the franchise, it is our submission the Electoral Commissioner had to be very careful as to what was going to happen in terms of the way that he used the power to divide seats. He says, presumably, that it is for federal purposes that he divides the Kalgoorlie. If it has the effect on provisional voters in a way that has been described in this seat, we would submit that it is an improper use of the power in that respect.

Your Honours, 1996 is also a period in which the common law of elections is supported by international convention, and if I could take you to our written submissions. At paragraph 14, there is simply this point made. I thought it was adequately stated enough in terms of principle in the submissions, but I will just refer briefly to the authority that supported it. All we are saying in relation to a reference to the International Covenant on Human Rights, articles 25 and 26, is simply this, that they can be used by this Court in the process of interpretation of the Act, and we are not suggesting that they have been incorporated as a part of our municipal law, but they are relevant for the interpretation of statutes and for the development of common law.

I have set out two recent remarks that have been made in this Court in the case last year of Teoh. What I did want to draw the Court’s attention to at page 5 of my submissions at about point 6 is this, where this was said by Chief Justice Mason and Justice Deane:

If the language of the legislation ‑ ‑ ‑

BRENNAN CJ: We do not need you to read it, we are familiar with the passages.

MR McCARTHY: Yes. Your Honour, I just wanted to draw your attention particularly to the point of a canon of construction that there should not be a “narrow conception of ambiguity”, and that:

If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

And, of course, as your Honours are aware from the quotation in the submissions from the international convention, the reference there is to providing:

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
.....
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

Article 26:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

As was said in the submission, these covenants are relevant to the interpretation and administration of Australian electoral law. As Article 25 makes clear, universal and equal suffrage is a right of every citizen without distinction and without unreasonable restriction, and the recognition of the rights under the covenant of the administration of Australian electoral laws would be achieved if there be a uniform application of the principles on which provisional votes are accepted or rejected in all Divisions for the House of Representatives.

Citizens who come within the category of provisional voters, as in paragraph 45 of the case stated, do not enjoy an equal access to the franchise and therefore are in derogation of their international recognised civil rights against citizens in other Australian electoral Divisions. Now, another point that was made, your Honours, in relation to our submission was this; that it is impossible to carry out - a very good point, it would seem - if that had some basis to it; that is, it is impossible of administration. This is put forward by our Electoral Commissioner, the second respondent, at paragraph 7.6 of the submissions. In reply, your Honours, this is what we would say. The second respondent asserts that:

If the Petitioner’s construction of the Act were correct, that it would be difficult, if not impossible, to identify the relevant roll for the purposes of the Act and difficult, if not impossible, to say whether or not any person in the Northern Territory claiming to vote was so entitled.
The Court will note that the second respondent’s officers have no apparent difficulty in respect of provisional voters in the same circumstances in 146 federal Divisions of the House of Representatives. See paragraph 45A of the case stated. The current address of these voters is recorded on the roll by the electoral officials. There is nothing that is being asked in relation to the procedures in the Northern Territory, your Honours, that has not been accomplished in other seats. The other matter that I just touch on briefly, your Honours, in relation to our case was the Racial Discrimination Act. The way in which this is put - - -

BRENNAN CJ: But how do you lay a foundation for that, Mr McCarthy?

MR McCARTHY: Well, your Honour, only that it is a matter of - it is not in dispute that this is the largest Aboriginal electorate in Australia - - -

BRENNAN CJ: Well, I do not know about that.

MR McCARTHY: - - - and that this is the electorate which has this enormous number of election districts that are there for the purpose of the Northern Territory legislature.

Our point is simply this, your Honour, it is really at a third level. We say that what is happening is contrary to statute. It is contrary to the common law of elections. It is contrary to constitutional law and it is contrary to our international obligations. Aboriginals are as much Australian citizens as any other category. They are affected by all of those four in, we would say, no uncertain terms and, in particular, in anything to do with the Northern Territory. Our principal reliance would be on those four areas but we would point out to your Honours the anomaly of this, that it is in the electorate with the largest number of Aboriginal votes who have the largest section of our indigenous people, who live in a tribal way of life, that we put down this incredible arrangement in relation to federal elections.

BRENNAN CJ: But do you not need to establish, in order to get this argument off the ground, that the arrangement that is there is one which operates to the disadvantage of a particular group?

MR McCARTHY: Your Honour, it would follow from their percentage in the electorate - and that is the only basis on which we would put it - from their percentage of the electorate there, which is undoubtedly the highest in Australia, that they would be most affected by this particular ‑ ‑ ‑

BRENNAN CJ: I do not understand that. If you say that they are one in ten in the Northern Territory and one in thirty elsewhere, and here is a law of universal application in the Northern Territory, how do you mount your argument?

MR McCARTHY: Only this way, your Honour, that, in relation to the actual application of the law, which is the use of the power to introduce subdivisions, it is used in such a way in the Northern Territory, as against the rest of Australia, that it has an effect on provisional voting in the sense that there is a much higher incidence of disenfranchisement in the Northern Territory than there is elsewhere and, in that way, since an enormously large percentage of the electorate in the Northern Territory is Aboriginal, they are adversely affected by such a concentration of election districts in that seat.

BRENNAN CJ: I just do not understand that as an argument which has the slightest thing to do with the Racial Discrimination Act nor do I see anything in the statement of facts which would give rise to such an argument. I mean, put your argument in such fashion as you see fit, but it must based on the facts that are there.

MR McCARTHY: Yes, your Honour. Your Honour, whatever else that can be said as to how a law is being applied, the Act in its application here, it can be taken, that there is this additional anomalous situation in relation to the electorate involved, indeed, the two electorates involved, for our more general submission that it also adversely affects Aboriginal people who form a very large percentage of those seats, and the Northern Territory have about 20 per cent, but, your Honour, they are not only that, they are also citizens who are affected - and we would put those as a priority submission or submission as the higher basis - that they are citizens to whom Sir Isaac Isaacs refers when he says to deprive a citizen of his vote is to take away his most important right in a self‑governing community and I say that about all provisional voters, your Honour. I do not just say that in relation to those of Aboriginal ‑ ‑ ‑

BRENNAN CJ: I understand it in relation to all provisional voters. What I am concerned about is, if I might say so, using the Racial Discrimination Act as a stalking horse which has no substance in the stated facts.

MR McCARTHY: Your Honour, it was not meant in that way in putting ‑ ‑ ‑

BRENNAN CJ: I mean, the reality, one imagines - although, again, it is not in the stated facts - is that you might have a lesser proportion of Aboriginal persons enrolling or keeping their enrolment up to date in the Northern Territory in comparison with other voters there. I mean, that may be assumed, although it is not in the facts and there is nothing to support it. One can also see that there might be some desirability of extending the provisions dealing with itinerant voters, for which provision is made in the Act.

MR McCARTHY: Yes, your Honour.

BRENNAN CJ: But unless you are able to establish some footing of discrimination, which does not appear in this, it seems to me to be an argument that really has no substance.

MR McCARTHY: It was certainly not put on the basis that there was nothing to that, but as an extension of a series of other arguments. Our prime point is this: that at a time out of 148 Divisions in the federal Parliament representing the Australian people, that the one electorate where there is an enormous Aboriginal population, is the electorate that has this anomaly of 25 election districts. Therefore the impact on provisional voters

of all types, and particularly of the Aboriginal population, must obviously be higher. Your Honour, I take that no further than that.

TOOHEY J: It all seems to be rather an attack on exercise of power than relevant to the question that has been referred to the Court. It almost sounds like an AD(JR) application.

MR McCARTHY: Well, it was not meant in that way, your Honour, but in terms of what consequences and issues do flow, in our submission, is a relevant submission over ‑ ‑ ‑

GUMMOW J: The question really is, on these agreed facts, was the DRO obliged to be satisfied within the meaning of Schedule 3, paragraph 12, is it not?

MR McCARTHY: That is one way of putting it, your Honour.

BRENNAN CJ: That is the relevant way. It is the question that is asked.

MR McCARTHY: Yes, but that is, your Honour, in all the context of being, from the petitioner’s point of view, something that goes to this anomaly as to whether there is a proper application of the franchise. Your Honours, unless there were some other matters with which I might be able to assist the Court, your Honours, those are the submissions for the petitioner. Your Honour, I have not read through, as I take it it was not necessary to read through all the written submissions that have been presented.

BRENNAN CJ: No, it is not necessary.

MR McCARTHY: I had, your Honours, a series of submissions I wished to make in relation to the material that has been submitted by my learned friend, Mr Reeves, and by Dr Kenny, but it may well be best, your Honours, if those submissions were put in reply rather than submissions that are given at this stage, as it pleases the Court.

BRENNAN CJ: Thank you, Mr McCarthy. Yes, Mr Reeves.

MR REEVES: Your Honours, in essence, this is a case involving statutory interpretation - the meaning and purpose of a paragraph of a schedule to an Act. The case does not involve - indeed, the Court is not asked to determine - a challenge to the Commission’s use of its power under section 79(1) to divide the Northern Territory into districts.

If this case involved such a challenge, there might well be other parties to it; for example, the Northern Territory Government might have an interest in it, in the way that my learned friend has put it, and there may well be other facts. Indeed, your Honours have raised some in discussion with my learned friend. Particularly, the effect of dividing an area which is about 17 per cent or 18 per cent of Australia’s land mass into 25 districts, as compared to dividing Victoria which is about 3 per cent of Australia’s land mass into 37 Divisions, and the flow‑on effect of that. My learned friend seems to have assumed all the way through his submissions that the effects that he contends for - the adverse effects - flow, but, there is no factual basis for that.

Indeed, this matter is not about a challenge to the Division of the Northern Territory into those districts, it is about the interpretation of paragraph 12 and, at least, as my learned friend put it in his earlier submissions, as I understood them, he appeared to be saying that there was a right or entitlement to vote in Australia, an independent right, that is independent of the Electoral Act and its provisions, and that that right or entitlement should be promoted ahead of the other purposes of the Act, such as, providing for compulsory enrolment. That seemed to be the way in which my learned friend was putting the matter.

We would respond to that, in essence, and we have in our submissions, that there is no independent right or entitlement to vote in Australia, that is, independent of the provisions of the Act. The entitlement or right to vote is based upon the provisions of the Act, particularly, first and foremost, whether you are on the roll and, if you are not on the roll, then consequences follow, in this case in relation to the 1,594 voters. If the Act is considered, and the right to vote is considered in the context of the Act, it is apparent, in our submissions, it is indeed obvious, that right to vote is dependent on the Act, dependent upon being on the roll and, therefore, it is not possible to interpret the Act in a way that promotes the right to vote ahead of the provisions that it is dependent upon, namely, specifically, being on the roll.

Your Honours, I propose to deal with the matter, therefore, in three broad areas: firstly, to deal with the purpose or purposes of the Act in relation to the right or entitlement to vote; secondly, to deal directly with the interpretation of paragraph 12; and, thirdly, to deal with the other matters that my learned friend mentioned, including the Racial Discrimination Act and the international convention. Before I do that could I hand up to the Court some amended pages of our submissions. In our submissions we referred in paragraphs 19 and 20 to certain authorities where we gave references to the Australian Law Reports and I have amended those to include the Commonwealth Law Reports.

BRENNAN CJ: Yes, thank you.

MR REEVES: Could I turn then, firstly, to the question of the purpose of the Act. In our submission, the general question involves a number of subquestions: is there an independent entitlement to vote such that it can be given or promoted ahead of any other provisions of the Act or, put in another way, is the underlying purpose of the Act to grant an entitlement to vote such that it should be promoted ahead of any other provisions in the Act?

Alternatively, is there a number of purposes of the Act, and is this - that is, the right to vote - a competing purpose, such that it should be given equal prominence in the interpretation of the Act, in which event we would submit that this Court should not prefer one purpose over another, because to do so would be really taking the role of the Parliament. In short, the first respondent submits that there is no independent right or entitlement to vote; that it is dependent upon the provisions of the Act; that there is no sole, underlying purpose of the Act to grant an entitlement to vote; and that, if this is one of a number of competing purposes in the Act, then the Court cannot prefer it over others.

Could I take your Honours then to paragraph 13.2 of our submissions, in which I have set out the observations of the Chief Justice, the Acting Chief Justice as he then was, in Muldowney v Australian Electoral Commission. I will not read through the whole of that quotation, but I will emphasise, your Honours, the second line, the words, “now depends entirely on the Act”, referring to the right to vote in an election for the Senate or House of Representatives, and to the concluding three lines:

The only right to vote conferred by the Act is that conferred by Section 93(2) and that right depends on the elector’s name being on the Roll for a Division.

That observation, in our submission, makes it clear that there is no independent right or entitlement to vote in Australia; it is dependent upon the provisions of the Act.

Can I submit, your Honours, that in Muldowney at page 39, your Honour also referred to the fact that the only provision in the Constitution which contained what appeared to be an express right to vote, namely in section 41, the effect of that has been spent by the effluxion of time because people to whom that provision applied are likely not to be alive any more.

Your Honours, in the second respondent’s submissions about the Northern Territory, reference is made to the difference between the Northern Territory’s position constitutionally and the rest of Australia and, in our submission, that is a very important factor in this matter. The Territory’s representation in the Houses of Parliament is provided for by legislation which has been legislated under section 122 of the Constitution. It does not directly arise out of the sections of the Constitution dealing with the Parliament having the power to make laws in relation to representation in the Houses of Parliament, namely, sections 8, 30 and 31. The Territory is and has been, through history, in a very different position. In a sense representative democracy, as has been interpreted in relation to the States, did not apply to the Northern Territory until the late 60s in the sense that ‑ ‑ ‑

DAWSON J: It does not apply at all to the Territory, does it? I mean, you just do not have to have an elected government.

MR REEVES: Yes, your Honour. The power under section 122 contains the power to give or take away ‑ ‑ ‑

DAWSON J: For a long time there was not any representative democracy.

MR REEVES: Yes, your Honour, and that is simply the point I make, and that is why the Territory is in a very different position, and when one talks about representative democracy or uniform franchise in relation to the States, it is important to realise, we would submit, that the Northern Territory is entirely different. Section 45, for example, of the Act, makes the distinction between the “people of the Commonwealth”, that phrase used in the Constitution particularly, for example, section 24, and the people of the Territory, because the people of the Territory are excluded expressly by section 45 of the Act which provides that:

In this Division, “people of the Commonwealth” does not include the people of any Territory that is referred to in section 122 of the Constitution.

DAWSON J: That point was made by Justice McHugh in a recent case, that whatever implications of freedom of speech there are, they have no application in the Territories because they are dependent upon representative democracy as their premise.

MR REEVES: Yes, your Honour. To similar effect is section 51 of the Act which appears to be the counterpart of section 45, in that the Act provides that:

Subject to subsection 95AA(3), a member of the House of Representatives representing a Territory shall be directly chosen by the people of the Territory.

Making a distinction between the Territory’s constitutional base and the rest of Australia.

BRENNAN CJ: Mr Reeves, the Court will adjourn at this time. The Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Reeves.

MR REEVES: Your Honours, I was dealing with the question of the purpose or purposes of the Act and endeavouring to distinguish the Northern Territory’s electoral and constitutional position from the rest of Australia. The same comments that I made before the luncheon adjournment could be applied to the Australian Capital Territory and, likewise, Territories like Cocos (Keeling) Islands and Christmas Island. The constitutional status of the Northern Territory in particular comes from section 122 and the concept of representative democracy does not apply in the Northern Territory in the same way as it does in the rest of Australia. For example, a Northern Territory member in the House of Representatives did not have a right to vote on all matters until 1968, just 28 years ago. It is not appropriate, in addition, in our submission, to refer to the Division of the Northern Territory in the way in which Division is used in the federal Constitution.

Section 29 anticipates that the States may be divided into Divisions, but those provisions apply to the States and not to the Northern Territory. So, when the Act talks about - although in only one or two places - the Division of the Northern Territory, it is, perhaps, inappropriate because the Northern Territory does not really fall within the concept of “Division” as it occurs in the Constitution. But all of those provisions, and many more, in our submission, serve to show that there is no underlying purpose in the Act to establish a uniform federal franchise in the sense that the Act is endeavouring to cover at least two aspects and that is, that it is endeavouring to provide, as anticipated by sections 8, 30 and 31 of the Constitution, for an electoral system for the election of members to the federal Parliament from the States; and, as well, it is setting out the extent and terms of representation of the territories in federal Parliament.

So it is achieving, at the same time, different purposes. It could not be said that the one underlying purpose, or the underlying purpose of the Act, is as my learned friend suggests; to provide for a uniform federal franchise. Indeed, as has been pointed out by all of the members of the Court, I believe, in McGinty, and some of the members in Langer, the federal franchise has been developing over the years and has been expanded to include women, Aborigines, and to include people between the ages of 18 and 21, and it could well expand further in the future to, for example, include people of the age of 16 years, or 12 years, if it was thought appropriate at that time, or, if it was thought appropriate to give residents of surrounding islands - not just the Cocos (Keeling) Islands, but other islands of the Pacific in near vicinity to Australia, votes in Australian elections, the Parliament could determined to do that.

DAWSON J: There would be some difficulties about that. Some do not stay.

MR REEVES: It is a novel concept, your Honour, but someone may have reacted in a similar way in the early 1900s to the idea of giving Aborigines the vote.

GAUDRON J: I think there were some areas in which they were entitled to vote, were there not, in 1900?

MR REEVES: I am not sure about that, your Honour.

GAUDRON J: I do not think there were specific exclusions in all States.

MR REEVES: I am not sure about that, your Honour. The underlying purpose of the Act, in our submission, is not those put forward by my learned friend, namely to either grant a right to vote to the citizens of Australia or to provide a universal franchise in Australia but, more so, to provide for an electoral system in Australia for the election of members to the House of Representatives and Senate. As an alternative, it may be that there are many purposes, none of which could be said to be a single underlying purpose but at least purposes that the Act endeavours to achieve including those I have just mentioned plus providing for compulsory preferential voting in Australia plus providing for compulsory enrolment in Australia, establishing and maintaining an accurate electoral roll throughout Australia, and I have dealt with that in paragraph 15 of my submissions, as well providing for one electoral roll system in Australia I have dealt with that in paragraph 16, and I will not refer to those submissions in detail. In so far as the Act provides for all these purposes, in our submission, this Court, with great respect, should not prefer one purpose over another, that is, the role of the Parliament, if it thinks that, for example, the right to vote is an underlying purpose or a right that should be reflected by the underlying purpose of the Act, then it can do so by clear indication in the legislation and allow this Court to then prefer that purpose over other purposes.

While I am dealing with the question of purpose, for similar reasons, in our submission, the provisions of the international convention, that my learned friend has referred to in his submissions, cannot be used to interpret the Act in the way he suggests, mainly because the words of the Act do not permit the interpretation that my learned friend suggests. So, in short, in our submission, in relation to the question of purpose, my learned friend has not established that there is an underlying purpose in the Act of the kind that he describes and, until he can, there is no warrant for this Court to interpret the Act to give preference, or to promote that purpose ahead of any other purpose in the Act.

That applies to equal effect in relation to his suggestion that there is a contrary intention demonstrated in the provisions of the Act and, if I could turn to that now, and also, at the same time, deal with the question of the interpretation of the provision which is referred to in the question. My learned friend really did not deal with the express words of paragraph 12 of Schedule 3, and that is what the question is directed to. It is not directed to section 79(1) or, indeed, section 82, except in so far as those sections assist to interpret the provisions of paragraph 12.

GUMMOW J: In considering paragraph 12, does a Court of Disputed Returns have any inhibitions placed in its path by section 360(1)? Are we being invited to assume the roll not to be correct or to investigate whether it was correct?

MR REEVES: I would submit, your Honour, that the provisions of paragraph 12 of Schedule 3 are there, in a deliberate sense, to protect a person’s right to vote against that person having his or her name removed from the roll as a result of error. To that limited extent, a Court of Disputed Returns can consider the interpretation of the provisions, but this Court could not, if it was embarking upon a factual consideration, go behind the roll. So factually, it could not inquire into the accuracy of the roll, but in interpreting this provision which appears to expressly allow for errors in the roll, it can do so to that limited extent.

My learned friend submits that there is a contrary intention demonstrated in the Act. The first respondent submits that quite the opposite is the case in the Act, particularly in these provisions. If anything, the Act is structured in a very specific way such that the contrary intention that my learned friend contends for is just not there. The clear intention in the Act is to link compulsory enrolment with an entitlement to vote with the list of voters at polling booths, with the right once one answers questions about name, address and whether you have voted before, to get a ballot paper, and only to get a ballot paper in those circumstances, and then provided that that ballot paper is initialled and marked with the proper mark, to cast a vote and provided you cast a vote in accordance with the optional preferential requirements, or the preferential requirements of the Act, then that vote is counted.

Having said all those things, it underscores the interference, for want of a better word, that machinery provisions in the Act have with the basic entitlement to vote. Your entitlement to vote, put another way, is based upon you doing all of the things that are required by those sections and more.

BRENNAN CJ: Mr Reeves, in answer to Justice Gummow you dealt with section 360(1), and the provisions of 235 govern the entitlement to cast a provisional vote. They are postulated on the proposition that the person’s name cannot be found on the roll, so there is no question at that stage of disputing the roll. But when one comes to paragraph 12, again accepting the correctness of the roll, do I understand you to accept that the question of the omission of a name from the roll can be considered under 12(b)(ii) and then we come to a question of what is the mistake? Is that the way in which it is to be looked at?

MR REEVES: Precisely, your Honour.

BRENNAN CJ: What then is the power to remove the name of a person from the roll who is not found to be resident at the registered address?

MR REEVES: The powers include section 118(3) which my learned friend took the Court to this morning. There is also a power in section 105 to alter the roll.

BRENNAN CJ: Section 118(3)?

MR REEVES: That is as a result of the objection process that is based upon a notice having been given.

BRENNAN CJ: So, in other words, looking at 118(3), if they are not resident at the registered address, then it appears to the DRO that they are not entitled to be enrolled for the relevant subdivision?

MR REEVES: Yes, your Honour. Then the DRO could remove that person’s name from the roll and subject to the review of that decision which is provided for in the next part, Part X, including a reference to the Administrative Appeals Tribunal, subject to that, the person’s name would be removed from the roll.

BRENNAN CJ: What other powers are there?

MR REEVES: There is a power in section 105:

a Divisional Returning Officer may alter any Roll kept by the officer by:
(a) correcting any mistake or omission in the particulars of the enrolment of an elector;
(b) altering, on the written application of an elector, the original name or address of the elector on the same Subdivision Roll;
(c) removing the name of any deceased elector -

and I pause there to say, your Honour, that a mistake could well arise there if the name of a deceased person was removed from the roll and it later emerged that ‑ ‑ ‑

TOOHEY J: Except this power in paragraph (f) to reinstate if there has been a mistake in that - - -

MR REEVES: Yes, your Honour. I thought the question was directed to what powers are there to remove people from the roll or alter their ‑ ‑ ‑

BRENNAN CJ: Yes. Well, relevantly to this case what powers do you say there were? Section 118(3) is one of them?

MR REEVES: Yes, and to a limited extent section 105.

BRENNAN CJ: What is the limit and what is the extent?

MR REEVES: The limited extent in relation to removing a name from the roll would be - I withdraw that, your Honour. In this case I do not think it is suggested that any of the people were removed because they had died. So section 105 would not apply. No, I cannot take the Court to ‑ ‑ ‑

BRENNAN CJ: I suppose section 105(1)(a) might relate to a “mistake or omission in the particulars of the enrolment of an elector”, but that deals with the initial enrolment, does it not?

MR REEVES: In this case - - -

TOOHEY J: It is only a power to correct, too, is it not? It is not a power to remove. Mr Reeves, have you finished answering the Chief Justice?

MR REEVES: There is, but not relevant to this case - there are other provisions in the Act that allow for rolls to be prepared when new Divisions are created and the like, and corrections - - -

BRENNAN CJ: The only one we need concern ourselves with is 118(3).

MR REEVES: I believe so, yes, your Honour.

TOOHEY J: I was going to ask you about paragraph 12. Taken on its own, it reads rather curiously. It leaves the situation up in the air. It spells out certain criteria but it does not, of itself, confer any power to do anything, at least as I read it. Is the power to be implied, or is some power to be implied from paragraph 12 itself or is power to be found by drawing paragraph 12 into some other section of the Act?

MR REEVES: I think it is linked back to paragraph 10(b), which requires the DRO to divide the votes into various groups, your Honour.

TOOHEY J: I see, yes.

MR REEVES: And 10(b) requires him or her to put in one group:

the envelopes to which paragraph 12 applies.

TOOHEY J: But that only applies where a Senate election is held concurrently with a House of Representatives election, or a Senate election held alone.

MR REEVES: In this case, in the Territory, all elections are held concurrently, your Honour; that is, all House of Representatives and Senate elections are held together.

TOOHEY J: I understand your answer to my question, but are you saying that when you read those two - paragraph 10 is concerned with what is to happen to the envelopes, is it not?

MR REEVES: Yes, your Honour.

GUMMOW J: And 11(b) as well.

TOOHEY J: But we seem to have been proceeding on the basis that paragraph 12(b)(ii) confers some sort of power, where an omission is:

due to an error made by an officer or an error due to a mistake of fact.

Is that how you see paragraph 12?

MR REEVES: We would submit that it allows the divisional returning officer to include in the scrutiny, that is, to count votes, provisional votes which have been lodged in circumstances where the person who lodged the provisional vote met the criteria set out in 12(b)(i) and (ii).

TOOHEY J: So, it is a power to count only, is that - - -

MR REEVES: Yes, your Honour.

TOOHEY J: Do you derive that from paragraph 12 alone, or from paragraph 12 read with something else?

MR REEVES: No, paragraph 18 is linked to it, your Honour. That then allows the ballot papers included as a result of the application of paragraph 12, that is, the ballot papers in the envelopes that are referred to in paragraphs 10(b) and 12(b) to be withdrawn from the envelope and included in the general scrutiny.

TOOHEY J: Yes, I understand. Thank you for that.

MR REEVES: If I could turn to paragraph 12 and deal with its interpretation. Firstly, paragraph 12(a) on the agreed facts applies here, at least in relation to the 1,594 votes, and that is common ground that none of the electors referred to here was enrolled. I should mention that the word “elector” there, I think Justice Brennan in Muldowney’s Case pointed to the fact that that may be an inappropriate use of the word because the word “elector” is defined in the Act to mean a person whose name appears on the roll and clearly that is contradictory in 12(a) because the reason why a person has a vote under 12(a) is because they are not on the roll.

Turning to 12(b), the paragraph requires for the petitioner in this case to meet two legs and we would submit that he has to meet both. Firstly, in 12(b)(i) for present purposes, the words:

entitled to be enrolled for the Division -

and then, the second leg is:

that the omission of the elector’s name from the Roll was due to an error made by an officer or a mistake of fact.

Now, in dealing with the first leg, “entitled to be enrolled for the Division”, if I could turn to the words “entitled to be enrolled” second and take the last part of it first, “for the Division”, I have set out paragraph 3 of my submissions the provisions of section 4(5) of the Act. The section provides that:

a reference to a Division shall be read as including a reference to the Northern Territory -

That provision does not define the Northern Territory or establish the Northern Territory as a Division of the Northern Territory as such. It reflects, I would submit, what I was submitting earlier about the different position with the Northern Territory in relation to the use of the word “Division”. It is not, in a sense, a Division in the sense that it is a State because it is not a State. So, that section appears to be very deliberate in the way in which it has dealt with the Northern Territory to state that:

a reference to a Division shall be read as including a reference to the Northern Territory -

as distinct from the Division of the Northern Territory.

Then the second part of the first leg are the words “entitled to be enrolled”. In paragraphs 4.1 onwards, I have referred to the various provisions of the Act. I will not read them out to the Court. In 4.1, I have referred to the provisions of section 93(1). We would submit that those provisions set out the general qualifications for enrolment. Then in 4.2, I have set out in summary the provisions of section 99(1) of the Act. We would submit that they contain specific qualifications for enrolment for a Division.

Then, in our submission, it is necessary to go back to section 4(5) and, in particular, subsection (5)(b), and note that the legislature has provided that:

a reference to a Subdivision shall be read as including a reference to a District of that Territory specified in a notice published under subsection 79(1).

I have then set out in paragraph 4.3 provisions of section 99(3) which we submit contains specific disqualifications for enrolment. In paragraphs 4.4 and 4.5, I have set out the provisions of sections 98(1) and various subsections of section 101 which we submit contain important further qualifications to a person’s entitlement to be on the roll, including the necessity to lodge a claim for enrolment or for transfer of enrolment, and that is backed up by the provisions of section 101 which make it an offence not to enrol or transfer one’s enrolment when one changes address.

Then in paragraph 4.6, I have endeavoured to set out in summary the combined effect of all those provisions in relation to the Northern Territory when interpreting to the words “entitled to be enrolled”. Applying that interpretation to this case, if your Honours would then go to paragraph 5.1. The agreed facts establish that each of the people who lodged a vote, a provisional vote, gave current addresses on the declaration forms for their votes under section 235 which were different to the addresses which previously appeared beside their names when they were last on the roll, and I have set out the paragraphs of the stated case that establish that.

In 5.2, I have submitted that each of those persons had therefore changed his or her address in the Northern Territory without transferring his or her enrolment. It is submitted in those circumstances that the DRO could not be satisfied that any of those persons were entitled to be enrolled for the District with his or her new address because that person had not lodged a claim to transfer his or her enrolment to his or her new address.

If the words, “entitled to be enrolled” are given the limited interpretation of a person who meets the age qualifications, the citizenship requirements and the general residency requirement - that is, the residency requirement in relation to the Northern Territory - the difficulty with that limited interpretation, which is what I think my learned friend is submitting for, is that the effect is to give a person an entitlement to vote, notwithstanding that that person has failed to comply with the provisions of the Act requiring them to lodge an enrolment form, so the person would get an entitlement to vote, notwithstanding that he or she has committed a breach of the Act by not enrolling. That would fly in the face of the ‑ ‑ ‑

GAUDRON J: Is that right? It is by not notifying a change of address, is it not?

MR REEVES: Yes, your Honour, and in the context of ‑ ‑ ‑

GAUDRON J: Because everyone has to have been on the roll. Everyone of whom we are speaking here has to have been on the roll.

MR REEVES: At some time, yes, your Honour.

GAUDRON J: Yes, at the last election, in effect, is it not, as matters work out?

MR REEVES: Most probably, yes.

GAUDRON J: Yes.

MR REEVES: And most probably they were removed as a result of the objection process referred to in paragraphs 15, 16 and 16A of the stated case during 1995 as part of that process. But, they were removed, most probably, we would say, because they changed their address. The requirements of section ‑ ‑ ‑

GAUDRON J: But nothing in the Act requires them to be removed because they have changed their address.

MR REEVES: It does not require them to be removed, your Honour, but it gives the DRO the power to remove them ‑ ‑ ‑

GAUDRON J: If they are not in the subdivision.

MR REEVES: No; if they are not at the address that he or his officers sends a notice to under section 114, I think.

BRENNAN CJ: It is not change of address, is it; it is because if they are not at the address at which they are registered the DRO may form the opinion that they are not entitled to be enrolled for the relevant subdivision.

MR REEVES: Yes, I accept that is the more accurate way of describing it, your Honour. They are required under section 101 to re‑enrol - I will rephrase that - to transfer enrolment within 21 days of the date upon which they became entitled to transfer the enrolment, which is linked to subsection (5) which provides that:

where a person enrolled for a Subdivision -

I have excluded the first part of it because it is not relevant. It relates to Norfolk Island -

where a person enrolled for a Subdivision (including a person whose address, in pursuance of a request made under section 104, is not entered on a Roll) changes his or her place of living from one address in that Subdivision to another address in the same Subdivision, the person shall, within 21 days after the date of making the change, give notice in writing of the new address to the Divisional Returning Officer for the Division that includes that Subdivision.

BRENNAN CJ: What section is that?

MR REEVES: That is section 101(5). And then, subsection (6) provides:

A person who fails to comply with subsection (1), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding $50.

So, these people who each change their address, or place of living, and apparently ‑ we would say obviously ‑ did not lodge a claim to transfer their enrolment at the same time, or within the period set out in subsection (5), are claiming to be entitled to vote as if they had done that, notwithstanding the fact that the failure ‑ ‑ ‑

GAUDRON J: Well, they are, in fact. They are the people who do, in fact, have their votes counted, as things turn out, under paragraph 12. The ones who do not get voted are the people who do not notify, or make application to transfer, from one subdivision to another.

MR REEVES: If that failure is as the result of an error or a mistake of fact.

GAUDRON J: Yes.

MR REEVES: That is, if one gives the interpretation to the words “entitled to be enrolled”, the interpretation of meeting the general qualifications for enrolment and not the specific qualifications, such as that you have to be enrolled for an address, and re‑enrol, or transfer enrolment,, if you change address. That is not the interpretation that we contend for. We contend that it must include not only the general qualification, but also the specific qualifications, because to allow a person a vote without having met the specific qualifications would countenance a breach of subsection (6).

GAUDRON J: Are you saying that there were votes counted in the scrutiny which should not have been?

MR REEVES: Your Honour is directing the question to the votes of the people who move within the subdivision?

GAUDRON J: Yes.

MR REEVES: In so far as it is necessary, that may be the case. That is a follow‑on effect of the submission I make, that even the people who move within the subdivision were given a vote, notwithstanding that they breached the Act. Now, I know, my learned friend ‑ ‑ ‑

GAUDRON J: Do you know how many votes there are in that?

MR REEVES: I know my learned friend, Dr Kenny, is going to address that. I do not want to take it any further than that, your Honour, but that is the obvious logical extension of the argument I put. And, I should say, I do not resile from it.

BRENNAN CJ: What you are saying, essentially, is that the practice that the Electoral Commission has adopted in all cases falling within paragraph 12 throughout Australia, where there has been a movement of a person’s address, and where a section 235 vote has been allowed and included in the scrutiny, is erroneous?

MR REEVES: That is a further extension of the argument that I put in relation to those that move within a subdivision, but ‑ ‑ ‑

BRENNAN CJ: Or whether it was a subdivision or outside it, because you are covered by either 101(1) or 101(5).

MR REEVES: Yes, your Honour. So, to take that one step further, what we are really submitting is that paragraph 12 is directed to true cases of error by an officer, or mistake of fact, as distinct from people who did not re‑enrol when they changed their address.

BRENNAN CJ: Yes.

MR REEVES: And, we say that that is what the paragraph is intended to cover; to make sure that a person does not lose their vote because of an error of an officer, or a mistake of fact that was beyond their control. Anything that is within their control, such as re‑enrolling, does not ‑ ‑ ‑

GAUDRON J: Your argument says, not that you are removed from the roll because you are not entitled to be on the roll, but you are removed from the roll because you have failed to comply with the notification.

MR REEVES: We can put it both ways, your Honour. I will come to the second leg in a moment, but I can deal with it now. Anyone who was removed from the roll because they did not re‑enrol or transfer their enrolment could not possibly, in our submission, fit within the definition of omission of that person’s name due to an error of an officer or mistake of fact. The reason why they were removed was their own conduct or misconduct, for which there is sanctions in the Act - the application of a fine of $50 for not doing it. It just could not possibly fit within the purpose of this particular provision.

The other way of putting it is that they are not entitled to be enrolled because the entitlement to enrolment just does not mean that you are 18 and that you are a citizen and that you live in a Division. It, in our submission, includes making a claim for enrolment or re‑enrolment or transfer of enrolment once you move address and complying with the Act in those respects. I do not think I can take it any further than that, your Honour. So, whether it is the first leg, namely entitled to be enrolled, or the second leg, omission of the person’s name due to an error, the crux of it is, in our submission, there is no mistake or there is no error of an officer. In relation to these voters, there is no reason why they should be included.

Put in response to the submissions my learned friend makes, there is no contrary intention shown. The specific purpose of the provision is to reinclude voters that have been disenfranchised by error or mistake and not to give people a second chance where they have got off the roll because of their own mistake or error or misconduct. There is no contrary intention indicated, there is no reason why the section should be given anything other than its plain and ordinary meaning.

BRENNAN CJ: What are the provisions dealing with the closing of the roll when writs are issued, do you know? Do not delay now, Mr Reeves; we can look it up.

MR REEVES: I am sorry, your Honour. I know some of the sections off by heart but not the whole 300 or 400 of them.

BRENNAN CJ: Yes, that is all right.

MR REEVES: Perhaps Dr Kenny might pick that up.

BRENNAN CJ: Section 155 seems to be it.

MR REEVES: Your Honours, there are three further areas that I want to mention briefly before I conclude. In paragraphs 17 and 18 of our submissions we have set out some additional facts that my learned friend attempted to refer to in his first set of submissions. They included submissions made by the Commission to the Joint Standing Committee on Electoral Matters, a letter from the current Minister for Administrative Services and some census statistics in relation to the House of Representatives seats in Australia.

In our submission, those additional facts should not be accepted because they do not fall within the provisions of section 15AB of the Acts Interpretation Act. As I have submitted in paragraph 18.1, at their highest they are extraparliamentary expressions of opinion as to the meaning or purpose of the provisions of the Act and should not therefore be considered by the Court in interpreting the provisions of the Act. In short, the Court should not rely upon them, in our submission.

Further to that, a least in so far as they are attempting to show some factual basis for the racial discrimination submissions that my learned friend made, to accept them in circumstances where we have not had an opportunity to test them or produce contrary evidence would be unfair to our position. We do not accept that the contention that my learned friend makes about the adverse effects of the subdivision of the Territory into districts applies.

The second to the last matter is that in paragraph 19 of our submissions we have set out various submissions in response to the proposition that my learned friend put in his original submissions about the application of the Racial Discrimination Act. In short, we say the Act does not apply and the crux of our submissions on that are contained at the end of paragraph 19.3 where we have adopted the words used by the Full Court of the Federal Court in Melkman v The Federal Commissioner of Taxation that:

The provision applies to persons within its sphere of application uniformly, regardless of their race, colour, descent or national or ethnic origin -

and, therefore, it does not breach section 10. In paragraphs 19.4, 19.5 and 19.6 we have made further submissions to different effect about the interpretation of the provisions in relation to the Racial Discrimination Act. I will not read those out in the interests of saving time because I am beyond my 40 minutes, but we do rely upon those.

So, in conclusion, mainly for the reason that there is no mistake or was no mistake or error by an officer in relation to these votes, we submit that the Court should answer the questions submitted to the Court as set out in paragraph 21, namely, no in relation to the first and the second is not applicable. Unless the Court has any other matters that they wish to raise, those are my submissions.

BRENNAN CJ: Thank you, Mr Reeves. Dr Kenny.

MS KENNY: Your Honours, I wanted to commence with a question which his Honour the Chief Justice asked my learned friend, Mr McCarthy, this morning, and I propose to answer that. I understand that is the case put against us. This morning it was asked of Mr McCarthy was his case thus; there is one roll for the Northern Territory, certain names were not found on the roll, the DRO was bound to have been satisfied that the names had been omitted by relevant error or mistake from either the roll for the district in which the person presently resides, or the roll from the district in which the person resided at the time his name was last on the roll? I wish to answer that question step by step, if I may.

One commences with the question, is there just one roll for the Division of the Northern Territory? That answer is a simple one; yes, there is, in the sense that section 82(4) tells one that there shall be a divisional roll. It also tells one how that divisional roll is to be constructed. In other words, Parliament has said, in subsection (1):

There shall be a Roll for each Division.

In this case, the Northern Territory, and in subsection (4):

All the Division Rolls for a State or a Territory shall together form the Roll for that State or Territory, as the case requires.

Stopping there then, one must ask oneself, in what way is the roll for the Division constructed? The answer to that is clearly to be found in section 82(2) and (3). In subsection (3) Parliament has said:

All the Subdivision Rolls for a Division shall together form the Roll for the Division.

Now, if one reads that back with section 4(5) of the Act, that then becomes a command that all the district rolls for the Division of the Northern Territory shall, together, form the roll for the Division of the Northern Territory. There seems to be no escape from that, unless one is to ignore the provisions of subsection (2) and subsection (3) or, alternatively, to ignore the provisions of section 79. In that event, the first proposition put forward by my learned friend, Mr McCarthy, cannot be good. Yes, there is one roll for the Division of the Northern Territory but that roll is comprised of each of the rolls which constitute the district which, together, constitute that roll, which is the roll for each district which constitutes the Division.

One then goes on one step further and says, what about section 79? We heard from my learned friend this morning that section 79 was, in relation to his argument, to be put to one side. In answer to his Honour Justice Dawson, my learned friend has said that he concedes a Division was made, but in answer to the remainder of the Court, he said that the exercise of power under section 79 was in some way an abuse, that is, that it was not made under and in accordance with the Act. Now, that question cannot arise today before this Court for two reasons.

First, it is not raised upon the petition or the case stated and the grounds for the petition are clear. They are set out in paragraphs 11 and 13 of the petition and they simply say that the exercise of power by the Divisional Returning Officer was not made with a due statutory base. The second answer must be that if any such argument were to be advanced, it would have to be raised clearly on the face of the petition and as this has not occurred it is now too late to raise such an argument. The authorities are clear in relation to grounds which may be raised in a petition. They may only be grounds raised within 40 days of the return of the writ. The direct attack on section 79 was never raised in the petition and my learned friend would be out of time today if he were to seek to make good that proposition. That applies to a number of the matters raised by Mr McCarthy.

BRENNAN CJ: Do you say that section 361 has anything to do with such an argument?

MS KENNY: I want to come to that in a moment, your Honour. My answer to his Honour Justice Gummow would have been that yes, section 361 is applicable in this circumstance. It would stop the Court from forming a conclusion that the name of a person ought to have been included in the roll. In other words, that there was an omission. It would not stop the Court sitting as a Court of Disputed Returns from answering the question 1 actually raised on the case stated but beyond that, the Court cannot go by virtue of 361. But what I was alluding to really arises from section 355 of the Act.

Under section 355 the petition must set out the facts relied on to invalidate the election and under section 355 paragraph (e), the petition must:

be filed in the Registry of the High Court within 40 days after the return of the writ.

In cases like Cameron v Fysh, 1 CLR in particular at page 316, and other cases like Re Berrill 19 ALR in particular at page 255; in Nile v Wood 167 CLR 137 and more recently in Sykes v Australian Electoral Commission 115 ALR 648 to 649 and subsequently in Robertson v Australian Electoral Commission 116 ALR between pages 408 and 409 ‑ ‑ ‑

BRENNAN CJ: Excuse me, Dr Kenny, I think your Act is covering your microphone.

MS KENNY: Begging your pardon, your Honour. I am indebted to your Honour. Was that indistinct? Should I repeat that, may I ask the Court?

BRENNAN CJ: It might be as well for the purposes of the record to have it repeated.

MS KENNY: I said a moment ago that there are a number of authorities which established very clearly that the petition must raise the grounds challenged within the stipulated period and that period is 40 days after the return of the writ. The authorities to which I referred the Court were Cameron v Fysh 1 CLR 316, Re Berrill 19 ALR 255, Nile v Wood 116 CLR 137, Sykes v Australian Electoral Commission 115 ALR between pages 648 to 649 and Robertson 116 ALR 408 to 409. That being the case, when one comes to look at the petition, and in particular to paragraphs 11 and 13 which raise the question which is before the Court today, at page 3 of the special case book the Court will see that the ground of challenge is relatively narrow. It is alleged by the petitioner that:

The actions of the electoral officials of the second respondent.....were contrary to Section 266(3) and schedule 3 of the Commonwealth Electoral Act 1918 and did not correspond with the application of the provisions of the said Act in the scrutiny of provisional votes -

et cetera. Then in paragraph 13:

The petitioner claims that upon the true construction of the provision of the Act, the second respondent was required to include the provisional votes -

et cetera, and I shall not read any further. But what is clear from the petition itself is that all that is said is that a matter of construction upon the terms of the Act, certain votes ought to have been included.

GUMMOW J: Well, I cannot see how paragraph 12 squares with section 361 immediately.

MS KENNY: Paragraph 12, your Honour, raises another ground of challenge which is not presently before the Court. So that the only relevant paragraphs to this particular matter are paragraphs 11 and 13. So if one returns back to the question, what can be the rolls and how does the Act operate, the answers are, first of all, found in section 82, that there are a number of rolls. They are the district roles, which together make up the divisional roll and that one cannot sensibly set aside section 79. One then is asked, has there been an error or mistake or should the District Returning Officer have been satisfied that there was an error or mistake which would have lead to the inclusion of these votes? The answer must be no.

One commences with the proposition that if a name of a person has not been omitted in error or relevant mistake from the district roll on which his name appeared, then it has not been omitted from the divisional roll by reason of error or mistake, and the converse is equally true, then the Act says quite specifically that the qualification for enrolment on a roll for a district is residence, and one derives that clearly from section 99(1), that is, a person must be resident in a district before he or she is entitled to be on the roll for that district. I am interpolating there with section 4(5).

So section 99(3)(b) says, a person is not entitled to have his or her name placed on a roll for a subdivision other than the subdivision in which he lives. In subsection (1), he is entitled to have his name on the roll if he has lived in the subdivision for a month. So that if a person ceases to live in a subdivision or, in this case, district, his or her entitlement to remain on the district roll ceases. The Act provides that the name of that person can be transferred from one district roll to another if he or she completes a claim form in accordance with the Act. Section 101, read with section 99(2), effect that result.

(2) Any elector whose name is on the Roll for any Subdivision and who lives in any other Subdivision, and has so lived for a period of one month last past, shall be entitled to have his or her name transferred to the Roll for the Subdivision in which he or she lives.

Section 101(1), equally explicit:

Subject to subsection (5A), every person who is entitled to be enrolled for any Subdivision -

and I will omit the remainder:

whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, shall forthwith fill in and sign -

et cetera. I shall not go further. So that each person who transfers from one district to another is under an obligation to transfer their enrolment. Similarly, subsection (4) supports that by creating an offence if that is not done, and then there is also provision in subsection (5) relating to addresses. I want to return to the matter of addresses in a moment.

If a person moves from a district to another district but takes no action to transfer his or her enrolment, the District Returning Officer may object to his continued enrolment on the roll for the district in which he no longer lives. In this connection, it is only residents in the relevant district, or subdivision, that is relevant, not a change of address. So that, when one goes to the provisions of section 114(2):

The DRO for a Division shall object to the enrolment of a person for a Subdivision of that Division if there are reasonable grounds for believing that the person is not entitled to be enrolled for that Subdivision.

So, the matter of address does not form a basis for objection. It must be movement outside the subdivision, and for these purposes, movement outside the district, which founds the basis for objection.

Relevantly, too, it is not change of registered address which is in question. If one looks to section 116(2), prefaces it with subsection (1):

The DRO shall give notice of an objection to the challenged elector.

But the place at which the DRO gives that notice of objection is set out in section 116(2)(i), and that includes:

a place notified by that elector to the DRO as the place to which notices under this Act may be sent;
(ii) if there is no such place, the place at which the DRO believes the elector to be living; or

(iii) if neither of subparagraphs (i) and (ii) applies, the place shown on the Roll as the elector’s place of residence.

So that the concept of registered address is really not relevant in this particular concatenation of sections. It is relevant in relation to section 99(3)(c) in that a person is not entitled to be on the roll:

in respect of an address other than the address at which the person is living when the claim is lodged.

It is relevant that under section 101(5) a person must, within 21 days, give notice of change of address, but it is not relevant to the question of objection; not per se. The matter which is relevant in relation to an objection is that a person has moved outside a subdivision or district.

If a notice is given, the Act then provides that the DRO may reach a satisfaction in relation to the movement of the person from a district. If the procedure set out in sections 116(3) and (4) are met and section 117 has not been complied with, in other words, if the elector should answer an objection, that might be an end of the matter; if not, then the DRO would be entitled to take action under section 118(3), that is, there being no answer to his notices sent to the relevant addresses, there being no answer from the elector, he may form the view that the challenged elector is not entitled to be enrolled for the relevant subdivision or district. Again, it is not a question of address. It is a question of subdivision or district. The provisions relating to review ‑ ‑ ‑

BRENNAN CJ: Just let me understand that properly. What is the procedure under section 118(3)? They find that there is somebody who is missing from an address. They give a notice pursuant to section 116(2)(c)(iii) directed to that address. It comes back “not known at this address”. They strike it off. Is that right?

MS KENNY: Not quite, in that in the ordinary course of events there would be more than one notice sent to the elector and ‑ ‑ ‑

BRENNAN CJ: Sent to the elector at the registered address?

MS KENNY: Your Honour, I would not accede to the proposition registered address. If I may say what I mean by that for a moment. The Act really takes one beyond registered address. It might be the place where the DRO believes the elector is living. It may be a place where the elector was named on the roll or it may be a place that the elector has notified as a relevant address, any one of a number of positions, and there is good reason for that within the Act itself because if one were to, for a moment, think of section 92 and the review procedures which the Electoral Commissioners undertake, it may be that in the course of conducting a review procedure, in the course of looking at the habitation of people within a subdivision or district, it has come to the notice of an official that an elector is residing elsewhere or there is any one of a number of possibilities.

So the Act envisages that there be a review which may occur either from time to time or it may be that matters have come to the attention of the Commission following an election, that in consequence the DRO may believe he has reasonable grounds for thinking that an elector has moved from a district, then a notice is sent and it is sent to any one of these three addresses.

The opportunity is then given for the elector, if he receives it, to communicate with the DRO and to answer the objection. If following this procedure the DRO forms the view or it appears to him that the person has moved from the relevant subdivision, then the DRO can delete his name from the roll. But that is not an end of the matter. When that is done, under the Act notice must again be sent to the elector to inform him of that fact. I also note here that no objection procedure can be taken after the close of the rolls, and that is in reference to your Honour the Chief Justice’s question I think of my learned friend just before he sat down. But notice is sent, and assuming the elector receives notice of it, then Part X would provide a very full opportunity for the person to object to that procedure. The relevant provisions would be sections 120(1), (4), (5), (6).

GUMMOW J: It goes right through to section 121.

MS KENNY: Precisely, your Honour. By the time one reaches section 120(8), one is being told one has an opportunity to go to the Administrative Appeals Tribunal and that may hear the matter again. So that is the scheme in which the DRO would have reached his satisfaction when he came to apply Schedule 3. When he comes to apply Schedule 3 and in particular paragraph 12(b), if the DRO finds when he looks at the new address for a person and he looks at the old enrolled address for a person that they lie in different districts, then the DRO cannot be satisfied that there has been a mistake. On the contrary, he must conclude that the name has correctly been removed because at that point a person would not have an entitlement to be on the roll for the former district because he has ceased to live within it. So, going back to section 99(1) ‑ ‑ ‑

GAUDRON J: Where did “districts” come into paragraph 12(b)?

MS KENNY: “Districts” would come in ‑ ‑ ‑

GAUDRON J: It is a reference to “Divisions”. There is just no reference there at all to “districts”.

MS KENNY: That would be right, your Honour, save that one must then go back to section 82 and, under section 82, one is told that in subsection (4) the divisional roll is constituted of all the rolls for the subdivision or, in this case, district, so that every time one sees a reference to the roll for a Division, one must go back and ask oneself, “Well, what is that?” That takes one back to section 82, and that, in turn, tells you how the divisional roll is to be constituted.

DAWSON J: It would not matter under paragraph 12, whether it was divided into districts or not.

MS KENNY: In one sense your Honour is absolutely correct because, if one is not entitled to be on the roll for a district or, indeed, for a Division, that is an end of the matter.

DAWSON J: Yes, but one might be entitled to be on the roll for a Division but not for the district.

GAUDRON J: I have real difficulty in applying section 82 to paragraph 12(b).

MS KENNY: If one goes back to section 82, and one also looks at paragraph 12, one commences with paragraph (a):

the elector.....is not enrolled for the Division ‑

and one asks oneself, “How could anyone be enrolled for a Division?” The answer must be in one of three ways. In a Division which has no subdivisions, by simply being on the divisional roll, because of the effect of section 4(4). In other words, wherever the word “Division” appears, there is to be read the word “Division”. In relation to a Division which is divided into subdivisions, like the Division of Kalgoorlie, then one must apply section 82(3), that is, each subdivisional roll constitutes the divisional roll. So that one asks oneself, “Is someone on the divisional roll?”, that, in turn becomes, “Is the name of the relevant person on a subdivisional roll?”. And, when one turns to the Northern Territory, the same inquiry ‑ ‑ ‑

DAWSON J: One can also ask the question the other way. If one is not on the subdivisional roll but yet is on the divisional roll for another subdivision?

MS KENNY: Yes, but that question does not arise here because it is conceded that none of these people are on the divisional roll at all.

DAWSON J: At all?

MS KENNY: At all.

DAWSON J: Yes, that is what I thought was said.

MS KENNY: So, in answer to your Honour’s question, in the case of a Division divided into subdivisions, at the moment the DRO saw a person’s name on another subdivision for that Division then they would be enrolled, so that paragraph 12 would not present a problem. The problem only arises here because when one looks at the district rolls ‑ ‑ ‑

DAWSON J: Then you say you go and vote somewhere else in this Division.

MS KENNY: That would be possible, but that problem does not arise. So, the reason why one goes back to look at rolls for a district when paragraph 12 asked the DRO to look at rolls for a Division, is that, the district rolls make up the divisional roll.

GAUDRON J: Well, I would have thought the reason you went back was for 12(b)(ii) to see if there had been an error or mistake of fact.

MS KENNY: Yes.

GAUDRON J: But not before that.

MS KENNY: Well, in this respect, your Honour; if one is talking of the Northern Territory, one would be asking oneself does the name of the relevant person appear anywhere on any of the district rolls? If the answer was yes, well, then, they would be enrolled. If the answer was no, they would not be enrolled.

DAWSON J: But really districts do not have much to do with it. You could disregard districts for that purpose, could you not?

MS KENNY: Well, not for the purposes of paragraph (ii) of (b) of paragraph 12, because when one reaches that paragraph, one has to ask, well, was it open to the DRO to be satisfied that the name had been omitted by mistake? In the case of someone whose name had been omitted under the procedures set out in Part IX of the Act, that is, pursuant to section 118(3), that person’s name has been taken from the roll because they have moved out of the district or subdivision, or it is believed that they have moved out of the district or subdivision.

If, however, when one comes to the time of preliminary scrutiny, it becomes apparent that whilst the person moved their address, they did not, in fact, move out of the subdivision or district, then it is open to the DRO to say that he has acted under mistake of fact and, at all times, that person was entitled to remain on the subdivisional roll and ought not to have been removed pursuant to section 118 (3).

DAWSON J: Districts do not make much difference. It could happen whether they are districts or not - the same thing.

MS KENNY: The same thing could happen - - -

DAWSON J: I mean, a person could move from one address to another and then there would be a mistake.

MS KENNY: The same thing could happen in any Division within the metropolitan area in any State.

DAWSON J: Exactly, that is why I said districts really do not matter for the purposes of the roll.

MS KENNY: I take your Honours point. In that sense that is true. It is simply a case of a person moving from one place to another, and the Divisional Returning Officer forming the view, mistakenly, that they have moved out of the relevant - - -

DAWSON J: Division.

MS KENNY: - - - Division, or district in this case, because the district or subdivision defined one’s entitlement to be on the divisional roll. So, that is the case of a person whose vote is admitted pursuant to the preliminary scrutiny.

BRENNAN CJ: Let us assume that there are no districts - we are speaking only about an unsubdivided Division - and the section 235 person has moved from a notified address to another address which is not notified within the Division. There has been a breach of section 101(5), there has been no notification and, on the material available to the DRO, the exercise of the power under 118(3) was justified. There has been a notification of a pending election and a closure of the rolls and no action has been taken, so that the roll at the time that the section 235 voter presents him or herself is in an appropriate state so far as the exercise of power is concerned. How does one, out of that, spell that after making inquiry, the omission of the roll is due to an error made by an officer, or to a mistake of fact?

MS KENNY: Your Honour, I think it must commence with section 266. Section 266 is the source for applying Schedule 3. Subsection (3) commands the DRO to conduct a preliminary scrutiny in accordance with Schedule 3. Then omitting all that has happened prior to the time when one looks at votes which would appear to be out of the preliminary scrutiny because the person is not on the roll, at that point paragraph 12 ‑ ‑ ‑

DAWSON J: You have got to presuppose that someone has turned up and wanted to vote.

MS KENNY: Yes, I have, your Honour, I have not gone back that far, but if one can go ‑ ‑ ‑

DAWSON J: That is his Honour’s example. Someone has turned up and wanted to vote and said, “Well, we live at so‑and‑so”.

MS KENNY: In one sense, one must really go back to the point at which the person turns up to vote and is asked the questions under section 229. The would-be voter comes, the presiding officer asks him the requisite questions set out in paragraphs (a), (b) and (c). When he gives his name and address, it appears to the presiding officer that under section 235(1) the person’s name cannot be found, address cannot be found or he has voted already. At that point a person is told that they may make a provisional vote and the procedures of sections 235(2) through to (8) are applied.

Then following close of polling and following the passage of all the relevant declaration votes of which a provisional vote is one kind to the DRO, section 266 would come into play and under that provision the DRO would commence a preliminary scrutiny and by virtue of section 266(3) he would come to apply paragraph 12. The problem which faces him at the time he comes to apply paragraph 12 is that he is faced with a number of declaration envelopes containing provisional votes which hold the names of people who would not appear to be enrolled.

Paragraph 12 is in a sense a safety net for those people who found that their name was wrongly taken off the roll, taken off through either error of an official or through mistake of fact. Now, in this instance, in the case of a person whose name has been taken off in the course of the Part IX procedure, the objection procedure, wrongly, the DRO has ‑ ‑ ‑

BRENNAN CJ: What do you mean by “wrongly”?

MS KENNY: Wrongly in the sense that the DRO at the time he deleted the name of a person from the relevant roll believed that a person had moved outside the Division, subdivision or district.

BRENNAN CJ: A person who is no longer entitled to be on the roll for the Division?

MS KENNY: Your Honour, or the subdivision or the district, to come back to the words of section 114.

BRENNAN CJ: In my question to you I was endeavouring to avoid the subdivisional problem which seems to me to turn on section 82, but if you have got an unsubdivided Division - and we have gone through this process - what is the relevant mistake?

MS KENNY: The mistake there would be that the DRO believed that a person had gone from one Division to another, had left the Division and was no longer entitled to be on the roll for that Division, but it would be a mistake of fact because at the time of preliminary scrutiny it would appear to the DRO that the address on the declaration envelope and the address for which the elector had been enrolled were both within the same Division.

DAWSON J: And it does not matter that the elector had committed an offence by not notifying a change of address?

MS KENNY: No.

DAWSON J: That is extraneous.

MS KENNY: That is quite correct, your Honour, and the manner in which the DRO applies that discretion would seem to be a well‑accepted one. In Kean v Kerby 27 CLR between pages 454 and 455 the Court seems to have sanctioned a similar practice. In the judgment of his Honour Justice Isaacs there appears a passage commencing at the foot of page 454 which considers what is the status of the roll and if one might commence towards the bottom of that page the passage reads:

The official practice, as proved by Mr Anderson, the Divisional Returning Office, has been consistently in favour of the latter contention.

The latter contention, I will just go up one paragraph:

On the other side the contention was that, once a valid claim for enrolment or transfer of enrolment was made, that stood under sec 121 until by change of residence to another Subdivision the elector became qualified for transfer to the other Subdivision.

His Honour went on to say:

It treats the roll as a constant record of enrolment: it requires one application for enrolment or transfer of enrolment, and, once that is done, the voter is regarded as entitled to be on the roll until the right is lost, and reprints do not destroy the right, though erroneous omissions or striking out need compliance with sec 121 in order to enable the elector to vote. I am clearly of the opinion the official practice is right. There are two strong reasons for this conclusion. One is that the language of the Act read as a whole, and in favour of the franchise, as all such Acts should be read, is more consistent with that view than with the opposite view. The other reason is that the other view not merely imposes on every elector the practically impossible certainly arduous duty of eternally watching electoral rolls as they are reprinted, in order to guard against official errors at peril of being disfranchised, but also, by sec 42, imposes on him a penalty if by chance he omits to observe the error.
It follows from what I have said that once a valid claim for enrolment was made, at any time before the issue of the writ for the election, that would enure to inclusion in the 1919 reprint of the roll unless between the claim and the issue of the writ the elector became qualified for transfer to another Subdivision.

Now, it is true that the question there is really: what is the status of someone whose name is omitted from a reprint of a roll, not what is the status of someone whose name is omitted pursuant to Part IX objection procedure, but in substance the same result should pertain. First, there is the rule of interpretation that Acts such as these should be read in favour of the franchise and second, the language of the Act would permit that result to occur.

DAWSON J: And apparently it is an offence even if you allow your name not to be there when it should be there.

MS KENNY: Yes, your Honour, and that being the case it matters not that one commits an offence by not notifying the DRO of a change of address within the Division. What matters is that one has remained within the residence of the relevant geographical area; either the Division in the case of most Divisions in this country, or the subdivision or district where that is applicable.

BRENNAN CJ: Well then, the mistake of fact is that the person in the unsubdivided Division was really entitled to be on the roll for that Division even though, to the best of the knowledge of the DRO, that person was not entitled and was removed on that account.

MS KENNY: Precisely.

BRENNAN CJ: In the present case what do you say to the argument that the sum of the subdivisional rolls makes up the roll of the Division of the Northern Territory? Here are 1,594 people who are entitled to be on that roll, admittedly for a different subdivision but they are entitled to be on the roll for the Northern Territory, and by a mistake, albeit it one for which they were responsible, they are not on any of the subdivisional rolls which might have entitled them to be on the roll for the Northern Territory.

MS KENNY: To that I say, your Honour, that there can have been no mistake of fact in deleting their name from the roll, because at the time the DRO came to delete the name pursuant to section 118(3), they were not in the relevant subdivisional district, so it is not open to the DRO to be satisfied that there has been any omission or mistake.

BRENNAN CJ: But the mistake might be an omission from the roll of the Northern Territory. The relevant subdivisional roll that they ought to have been on is their new subdivisional roll and they were not put on it.

MS KENNY: Your Honour, that cannot be either. The first part of my answer goes to why a person cannot be on their old roll. Your Honour asks me why cannot a person be on the new roll, and the answer to that must be because they have not made an appropriate application under section 101(1) of the Act. In other words, the scheme of the Act is that one must make an application to go on to the relevant district or subdivisional or divisional roll. No one can put you on it unless you make application.

GUMMOW J: But we keep coming back to the words “the Roll” and “the Division” in 12(b)(ii), do we not, in those answers you are giving the Chief Justice? We keep coming back to the particular meaning you give to the concept of the roll in relation to the Northern Territory.

MS KENNY: Your Honour, my answer to that is that the roll in relation to the Northern Territory means each of the 27 rolls which makes up the roll for the Northern Territory, that under the objection procedure one can be removed if one ceases to reside in the relevant district, or subdivision in the case of a Division broken up. That causes no problem in the case of a Division which is not broken up into subdivisions and districts.

DAWSON J: But the analogy would be if someone in a district or subdivision had changed their address and had their name removed because the processes were gone through and no reply was received and they turn up on polling day and say, “But we’re still in the same district or subdivision”, then the analogy would be complete. It would be a mistake if they were not ‑ it would be a mistake and they would be allowed to vote.

MS KENNY: Yes.

DAWSON J: And they were apparently.

MS KENNY: In effect, one has to ask oneself, “What is the relevant electoral unit?”. If it is a Division, then one applies the rule uniformly. If it is a subdivision, similarly one applies the rule uniformly and, if it is a district, one applies the rule uniformly but one ends - the effect is different simply because of the basic facts upon which one operates, but the rule remains the same throughout.

It is for those reasons that the second respondent would submit that in the case of the 1,594 votes which were excluded, it could not have been open to the DRO to have formed the view that their names had been deleted through error or mistake because they were in the wrong district, effectively. They could not go on to the new roll - that is the roll where they now lived - because they had not made application under section 101, and they could not go back on to the old roll because they had no entitlement to be there in the first place, and in any event their name had been correctly removed pursuant to the Part IX objection procedure.

The second respondent would also submit that there is no contrary intention in this Act. I have set out in the submissions - the first round of submissions, if I might term it that - why it is that no contrary intention arises. In my submission, nothing addressed to the Court today would point to any contrary conclusion. In other words, it is said by my learned friend, Mr McCarthy, that there is a rule that the franchise is uniform. That, in my submission, is either wrong or not to the point.

GUMMOW J: Are there any instances anywhere in the statute where those words “unless the contrary intention appears” do any work at all?

MS KENNY: I think so, your Honour, in section 95AA(2) and (3). Your Honours will see that in section 97 Parliament has purported to apply all of Part VII to the Northern Territory. That appears from subsection (1)(a). But, if one looks to the Divisions of section 95AA, those dealing with Norfolk Island and the surrounding Divisions, one sees that that clearly could not apply. That would be one instance in which there would be no work for subsection(5) of the Act.

In relation to the argument put by my learned friend this morning, I would submit that the nature of the franchise depends entirely upon the Act and, in this case, the Act applies uniformly to all within its sphere of operation. In general terms, it puts forward criteria for a right to vote which are essentially the same; being age, citizenship and residence. I say “essentially” because provision was also made in the Act for the itinerant elector and for those who are not resident in Australia. But, at the end of the day, the question is, what does the Act itself say gives rise to a qualification to vote, which in turn means one must ask oneself, when does one become qualified to be enrolled?

By virtue of section 93(2) one can vote if one is enrolled, and that then takes oneself back to how does one satisfy a qualification for enrolment. I have probably condensed the Act in putting it in that fashion, but that, in substance, is its effect. In other words, providing an elector has his name on a roll for a Division, he may vote at an election, and that then takes one to the provisions of section 99 and asking oneself, how may an elector have an entitlement for enrolment, subject, of course, to satisfying the provisions of subsection (1) of section 93.

Put to one side the matters raised by my learned friend, Mr McCarthy, in relation to section 24 of the Constitution, and which he referred to in submission today, in my submission, they are not relevant when one is considering an election of a member for the Northern Territory. One then asks oneself, is there any ambiguity? If there is no contrary intention in this Act expressed, is there any ambiguity at any point which would warrant the application of international instruments or the like? The answer, in my submission, must be no, there is no ambiguity to warrant such a matter, and I have set that out earlier in my submissions.

As for the matter of the Racial Discrimination Act, there are no facts before this Court which would give rise to that matter. I believe I dealt with that, in any event, in the submissions. And, finally, of course, my learned friend would run into the same problem, that it is not a ground which was raised in his petition, and it is now too late to amend the grounds of that petition, so that it is not a ground which would be considered in relation to the matter before the Court. I would refer, again, back to section 355 paragraph (a) and (e) and to the authority of Cameron v Fysh and Re Berrill and the like that I referred to earlier.

So that then takes me to a question raised by your Honour Justice Gummow and that is, what is the effect of section 361 of the Act? In my submission, it has the effect that whilst the Court can answer the question on a special case, namely, as set out in question 1 ‑ ‑ ‑

GUMMOW J: It is really 361 plus 155, as the Chief Justice reminds me. Great significance attaches, does it not, in this process to the closing of a roll?

MS KENNY: Yes, it does, your Honour, and that reinforces the answer I am about to give. It would be open to the Court to answer the question, “Was the Divisional Returning Officer bound to have been satisfied?” That does not involve a judgment on the correctness of the roll necessarily. The Court may say, as I would invite the Court to say, no. If the Court were to say, yes, the Divisional Returning Officer was bound to be satisfied, that may be the answer to the first question, but because of the provisions of section 361, one cannot go any further. In other words, it is not open to the Court sitting as a Court of Disputed Returns to then substitute its view for that of the DRO. In other words, it cannot then make the judgment that the DRO could have made at preliminary scrutiny. It cannot say, “There’s been an omission of an elector’s name by reason of an error or a mistake of fact”, so that the roll should constructively be correct. It cannot make that judgment because section 361 stands in the way.

DAWSON J: Does that mean that it does not have jurisdiction to consider the question at all?

MS KENNY: No, your Honour, it would not mean that.

DAWSON J: Where does its jurisdiction come from.

MS KENNY: Its jurisdiction would come from section 353 and section 354. So, it may hear the challenge to validity of election.

DAWSON J: That which is raised does not enable it to pass on validity of the election.

MS KENNY: It does not enable it to pass on the second question. In other words, the answer to the second question must be that it cannot pass upon that. In other words, it cannot say that the votes were wrongly excluded from the scrutiny. There is another way of approaching the second question ‑ ‑ ‑

BRENNAN CJ: Why can you not do that?

MS KENNY: Well, if it were to say the votes were wrongly excluded from the scrutiny, that would involve a judgment that the DRO ‑ it would involve two things. One may say, on the one hand, paragraph 12 concentrates attention on the satisfaction of the DRO, so the DRO was, at the time of preliminary scrutiny, either satisfied or not satisfied of the relevant event. It may be, for argument’s sake, that he was wrong, but the time has passed for a court to substitute its view for that of the DRO. In other words, providing the DRO was not satisfied at the time, that is an end of the matter.

BRENNAN CJ: Why is that so in the light of the words of 361(1), that the Court is to inquire whether the “votes were improperly admitted or rejected”, and, in the light of ‑ the one which says that the Court is to apply commonsense in these ‑ ‑ ‑ 364 ‑ yes, “Real justice to be observed”. If the Court was of the view the DRO got it wrong and should have counted these votes, why would the Court not say, “The real justice of the case requires that the votes be counted”?

MS KENNY: I am inviting the Court to pursue two arguments. One argument would be that paragraph 12 makes the question depend entirely upon the satisfaction of the DRO in any event, so that ‑ ‑ ‑

BRENNAN CJ: Well, quite, and on questions of fact it may be that the Court would be very slow to intervene but, when the facts are not in doubt, why is it that the error of law made by the DRO is not such as to allow the Court to form the view and to make the view coercively to be obeyed, that the votes were improperly rejected.

MS KENNY: Well, the second aspect to the argument would be that the Court is precluded by section 361 from inquiring into the correctness of the roll. The judgment made by the DRO under paragraph 12 is, in substance, a judgment about the correctness of the roll. In other words, he is asked or is told to ask himself, “Has the elector’s name been omitted by mistake?”

BRENNAN CJ: But there is no doubt about the roll. The roll is correct so far as it goes. No question about the correctness of the roll in the sense that the exercise of the power under 118(3) was a valid exercise of power. So, the roll is in proper form, but accepting that the roll was in proper form it might, nonetheless, have been in better form if paragraph 12(b)(ii) facts had been properly appreciated.

MS KENNY: That is the short point I am making, your Honour, that it is not open to the Court on one view of section 361 to make that judgment about better form but I will not take the submission - that is a submission that I make.

GAUDRON J: Yes. Well, in any event, the roll stands as it is until amended, does it not? Assume for the moment that it were to be found that these folk should have been included in the scrutiny. That would not alter the roll. That would be altered, would it not, under section one hundred and something or other by the Electoral Commissioners later because there is a requirement in that provision for that person to alter the roll.

MS KENNY: Your Honour is perfectly correct. Under section 105(4), if a vote were admitted to the further scrutiny because of paragraph 12 then the DRO would have an obligation, as soon as he could, to rectify the roll.

GAUDRON J: Yes. If the Court were to answer yes, and even the fact that it went on to answer the second question would not alter the roll. It would not be an inquiry into the roll. That would be something that would be determined in accordance with the Act.

MS KENNY: The point I make really, your Honour, is simply that the words are “not inquire into the correctness of the roll” and very directly the DRO is being asked under paragraph 12(b)(ii) to inquire into the correctness of the roll. In other words, his question is, is the roll ‑ ‑ ‑

GAUDRON J: No, he is being asked to inquire into whether one of his officers or one of the officers made a mistake.

MS KENNY: Yes, but that in turn involves an answer as to whether or not the roll as it stands is correct or on one view might involve such an answer. Now, if that were so, then 361 would have something to say. If that is not so, then, of course, one can put section 361 to one side. One can say, as your Honour has rightly said, “Well, all the DRO is required to do is to form a view about whether the omission occurred by reason of mistake or error of an officer,” without judging the correctness or otherwise of the roll. If he forms a positive view, then the vote would go into the count through the doors of paragraph 10(b) and paragraph 18 of the schedule and that would be an end to the matter.

But if the contrary view were taken and that a judgment under paragraph 12(b)(ii) really involved a judgment about or involved an inquiry, underlying the word inquiry, into the correctness of the roll, then one would face the problem of section 361(1) and the Court could go no further.

BRENNAN CJ: I suppose one other aspect of that argument is that the question of the removal of any name from the roll is not a question for this Court to consider at all.

MS KENNY: That would certainly be the necessary corollary of that, I think, your Honour. In other words, it has been put in the case stated that certain events have occurred and it is said that they were removed pursuant to the Part IX procedure and the Court must, for the purposes of the special case, assume that that is what is understood between the parties, but it would not be open to the Court to do anything which would involve an inquiry into the correctness of the way in which the roll were kept.

BRENNAN CJ: On that approach, the proposition is simply this: 1,594 votes were cast by persons who were not on the roll of any of the subdivisions in the Northern Territory. Is the fact that they were not on that roll due to a mistake? Now, if the Court cannot inquire into the correctness of the removal, then it is difficult to see what the mistake would be because the mistake would then be a failure to put somebody on the roll rather than a removal.

MS KENNY: Well, with respect, no, your Honour, because that is not the circumstance that has been put to the Court. In other words, the circumstance which has been put to the Court here is that the names did not appear on the roll, and the only question is, was the Divisional Returning Officer bound to find that they had been omitted through a mistake of fact or an error of a polling officer? So, one commences with the proposition that they were not on the roll. What the petitioner is submitting is that they ought, notwithstanding that fact, to have been included in the count.

GUMMOW J: Provisions like section 361 have been in legislation in Britain and then here for a long while, have they not?

MS KENNY: Yes, your Honour, that is quite correct.

GUMMOW J: Is there any authority on these points as to this particular expression “inquire into the correctness”?

MS KENNY: There is authority on expression. I am not aware of anything which would directly assist the Court.

GUMMOW J: Well, I would be grateful if you acquired such knowledge.

MS KENNY: I will confirm that that is the case and I will let the Court know.

GUMMOW J: All right.

BRENNAN CJ: And your opponents.

MS KENNY: Of course, your Honour, yes. There is one matter just before I sit down. His Honour Justice Gummow has reminded me of it. Earlier this morning there was a discussion about the construction and effect of section 79(2). In so far as it is of any assistance, may I pass up to the Court just some extracts dealing with the manner in which that subsection came into the Act. In substance - and I shall not take the Court through it

because it shall become quite apparent - what happened was that in 1983 the district provision of section 79(1)(b) was introduced and then shortly thereafter a provision which has later become section 79(2) was introduced. At the same time that section 79(2) was introduced, so too was the definition of the Northern Territory enlarged to include the Cocos (Keeling) and Christmas Islands.

The legislative history does not advance the problem of construction enormously, save that it shows that subsection (1)(b), dealing with districts, and subsection (2), dealing with the Cocos (Keeling) Islands, came in at different times. For the purposes of this case the submission which I would put forward as appropriately reflecting the way the Act should be construed would be the construction that section 79(2) effectively constrains subsection (1)(b) in relation to the provision of districts. Unless there is any other matter, I think those are my submissions.

BRENNAN CJ: Thank you, Dr Kenny. Yes, Mr McCarthy.

MR McCARTHY: Your Honour, since the last exchange basically puts me on the edge of a precipice in relation to my petition, I think I ought to immediately take the Court, in relation to your powers, just to reassure you about all of this, by taking you immediately to section 364A(b) of the Act, which reads:

In making its decision on a petition, the Court may
.....
(b) have regard to any declaration vote ballot‑papers (including postal ballot‑papers) rejected at the preliminary scrutiny if the Court is of the opinion that the ballot‑papers should not have been rejected.

I think, your Honours, that fairly well takes care of any of the problems that were considerably worrying Justice Gummow.

GUMMOW J: Why? Why does it take care of them?

MR McCARTHY: Because these are declaration votes and these are ballot papers that have been rejected and the case before the Court is these ballot papers should not have been rejected.

GUMMOW J: There will be plenty of cases where 364A(b) can do some work and 361 can do its work as well. You do not meet the one by pointing to the other because the two do not coincide.

MR McCARTHY: I understand, but in relation to this case, your Honour, this is a matter where we have declaration vote ballot papers that are before the Court and the issue is whether those ballot papers should have been rejected and there is no slipping away in the sense of the 361(1) point.

Your Honour, the cases in relation to 361(1) that your Honour would find of interest are Cusack v Perkins which was in about 1930, a New South Wales case called The Darlinghurst Petition in 1951 in the State Reports and Re Berrill’s Petition in about 1977. The broad case in all of those is that the Court must take the roll as it stands and the ‑ ‑ ‑

GUMMOW J: But my recollection is one of Mrs Berrill’s objections in a number of cases was that the roll was out of sync with reality and that the roll was corrupted in various ways.

MR McCARTHY: Your Honour, I am sure that was right.

GUMMOW J: She was continually told that she could not get into that area.

MR McCARTHY: My recollection is that in one or other of those cases your Honour appeared, but that is so and it may well be that it is always the case that if it is an inquiry as to why a person is or is not on the roll then that is something that affects the jurisdiction of the Court of Disputed Returns through this particular clause but in the case at Bar this is a matter that goes further than that and is covered by the declaration vote situation. This is not a matter that could be turned away on the basis that somehow or other one fell through the crevices of the jurisdiction of the Court of Disputed Returns, just as the opening burst in this case from the second respondent that says, “Ha ha, we caught you out. You got all these goods point now but you did not make them before you put your petition on and you are out of time” just does not quite ‑ ‑ ‑

BRENNAN CJ: I do not know that there is much mirth about their submission.

MR McCARTHY: There is not much mirth about it at all.

BRENNAN CJ: So, there was not much “Ha ha” about it.

MR McCARTHY: No, but, your Honour, in the case of our petition, it is put in terms that in paragraph 11 - it was put in terms of the actions that the electoral officials for the second respondent were contrary to section 266(3) and Schedule 3 of the Commonwealth Electoral Act and did not correspond with the application of the provisions of the said Act and the scrutiny of provisional votes in Divisions elsewhere in Australia or for the federal election held on 2 March.

My simple point in relation to that is that that is an attempt to raise three things. Firstly, that there is under the Act a uniform application of the franchise and the application of the franchise; that there is under the Act in relation to that an interference by the way in which this was done in the Northern Territory, and that that arose through the interpretation that was placed upon the handling of provisional votes. Now, your Honours, in my submission, what has been put in terms of the petitioner’s case both in relation to the bearing of the various sections on, or the relationship of the various parts of the case to each other, are not excluded by the wording of the petition.

In other words, there has been no new point introduced by the petitioner in the course of the petitions, and there is no new area of material that is being raised by what has been put in the petition.

TOOHEY J: But do you say that of the racial discrimination point?

MR McCARTHY: Your Honour, that was as an illustration of what was a problem with the interpretation that was being given of the Act. Our case is that that interpretation should not stand; that the proper interpretation of the Act would not offend any of those particular provisions. But, certainly in relation to the common law or to the other ways in which the statute should be read, that they do have a bearing on that.

Your Honours, the next matter was the question of a contrary intention. Justice Gummow asked my learned friend where is the work that the words “a contrary intention” appearing in section 4(5) has to do. This has been something that had been a bit of a puzzle. References were made to, I think, section 95AA. In the way that it is read there, there may be some reference in relation to Division. It does not appear relevantly as to how subdivision appears.

BRENNAN CJ: What is the point, Mr McCarthy?

MR McCARTHY: What I am saying is this, your Honour, that the words obviously have to be given some meaning within the Act itself, and there would be other parts in which the meaning could be sought. In our submission, those words are appropriately sought in the purpose of the Act,

or meaning given in terms of the purpose of the Act, and the purpose being put into effect.

Your Honours, on the contrary intention, it is said that we may have established that there is a uniform franchise that does not have relevance to the Northern Territory. I would think that this Act and the amendment of section 128 of the Constitution to include the words “the States and Territory” in respect of the referendum provisions and the evolution of democracy in democratic institutions in the Territory and as part of the Commonwealth of Australia would make any application to the Northern Territory of the uniform franchise - that is, Parts XVII and XVIII as well as Parts VII and VIII of the Act - appropriate.

In other words, as much as that is a characteristic, the uniform franchise is a characteristic for the non-territorial parts of Australia, no reason is advanced, or no appropriate reason, in our submission, has been advanced, as to why it should not be read the other way.

Finally, in relation to the nature of elections, the other matter that was raised of differences, there is, if one looks through the characteristic of election, nothing further that is put that seems to make elections, from nominations through to the declaration, different in the Northern Territory than it is in the other States in that respect. In terms of the meaning of “Division” within paragraph 12 of the Third Schedule, we would submit that the roll for the Division should be given consistent with a uniform application of section 266 a general meaning so that it operates there in the same way that it would operate in Divisions that are unsubdivided. Alternatively, that the Northern Territory be seen as one subdivision as such as a part of the Division of the Northern Territory. If your Honours please.

BRENNAN CJ: Thank you, Mr McCarthy. The Court will consider its decision in this matter.

AT 4.23 PM THE MATTER WAS ADJOURNED

[1996] HCATrans 255

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Procedural Fairness