Sue v Hill

[1999] HCATrans 69

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S179 of 1998

B e t w e e n -

HENRY (NAI LEUNG) SUE

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

For directions

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 MARCH 1999, AT 2.16 PM

Copyright in the High Court of Australia

MR S.G. FINCH, SC:   If the Court pleases, I appear for the petitioner.  (instructed by instructed by Phillips Fox)

MR D.F. ROFE, QC:   If your Honour pleases, I appear with my learned friend, MR A.J. TUDEHOPE, for the first respondent.  (instructed by Watkins Stokes Templeton)

MR M.C. SWAN:   If the Court pleases, I appear for the Australian Electoral Commission, the second respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Finch.

MR FINCH:   Your Honour, the parties, I think, are, if not completely, very largely agreed on the form of the stated case.  May I hand up a copy of the document.  It is not, of course, signed yet as it will need to be in due course but - - -

HIS HONOUR:   Thank you.  Just give me an opportunity to read through it please, Mr Finch.

MR FINCH:   Thank you.  There is an initial question I should flag, your Honour, which is whether or not it ought to be a special case referred under Order 35 or a stated case pursuant to section 18.  I will come back to that when your Honour has had a look at it.

HIS HONOUR:   In Sykes v Cleary it was a stated case, was it not?

MR FINCH:   It was, and it is our view that it is marginally preferable to have it as a stated case under section 18.  I say that, and I will flag this much, it is at least possible that the Court might take the view that some of the questions are mixed questions of fact and law, in particular, for instance, the question concerning whether the United Kingdom is a foreign power.  There seems to be a specific restriction on the reservation of a special case pursuant to Order 35 to questions of law, although that order of the Court makes it quite clear that the Court can draw inferences of fact or law, the actual questions which may be reserved are questions of law. 

Section 18 of the Judiciary Act does not seem to have that limitation in it.  It has the slight disadvantage that there has been, on occasion, a muted expression of doubt about whether or not inferences of fact may be drawn in the course of it.  We, with respect, do not think those reservations affect this case at all and that to cover any doubt about whether or not questions of fact and law are raised, we think section 18 may be marginally the more appropriate way to go.  That is really the only significant issue.

HIS HONOUR:   Let me just read the document then.

MR FINCH:   Your Honour does not have the annexures.  I have a bundle, if your Honour wants them.

HIS HONOUR:   Thank you.  What I think I will do is go through with Mr Finch some aspects of this and see what he has to say about parts of it and then you can let me know what you think, Mr Rofe and Mr Swan.  You have said what you want to say about the heading to it.

MR FINCH:   Yes, your Honour.

HIS HONOUR:   In a stated case, the circumstance that facts are agreed or not agreed is irrelevant, is it not?

MR FINCH:   Yes, your Honour.

HIS HONOUR:   So, let us delete the words "agreed facts".

MR FINCH:   Yes, your Honour.  That should be mirrored on page 7, your Honour, by the deletion of the same words at the top of that page.

HIS HONOUR:   I will come to that in due course.  I notice that halfway through the document you start calling the first respondent, whom you have called "the first respondent" in an earlier part of it "Hill".  Why do you not just keep calling her "the first respondent"?

MR FINCH:   We will do that in the final document, yes.  This morning the document has gone through a number of quick revisions.  I apologise for that.

HIS HONOUR:   So, we will note then that wherever she is referred to as "Hill" she will be called "the first respondent".

MR FINCH:   If your Honour would.

HIS HONOUR:   Down to paragraph 22, so far as I can check, it follows the form of Sykes v Cleary and subject to anything that your opponents want to say, I have no particular comments to make about it.

MR FINCH:   Yes, your Honour. 

HIS HONOUR:   Instead of paragraph 23, why do you not just annex the petition?  It can speak for itself.

MR FINCH:   Yes.  Strictly, your Honour, that does not even need to happen because it will be on the record.  My learned friend wished this to be in and we have no objection to it.

HIS HONOUR:   Well, I suggest you should annex the petition and let it speak for itself.  Delete paragraph 23.

MR FINCH:   We will do that, your Honour.

HIS HONOUR:   You can leave paragraph 24 in.  Delete the heading "The First Respondent".  Call her "the first respondent".

MR FINCH:   Yes.

HIS HONOUR:   It is only a trivial ambiguity but in paragraph 26 where, in the third sentence you say, "In January 1981" et cetera, you should say, "there are two children of this marriage, both of whom were born and are living in Australia."  I do not think the fact that her parents were either aged or ill is relevant.  So, I suggest in paragraph 28 you say, "there arose an urgent requirement for Hill to accompany her parents to visit a member of her father's family in New Zealand."  I mean, I do not think it would make a different to the outcome of the case if they were both in excellent health.

Paragraph 29:  there was a sequence.  I imagine "her application for citizenship was granted".  "She attended a citizenship ceremony in Brisbane".  I do not suppose it was granted at the ceremony.  She was presumably at the ceremony because it had been granted.

MR ROFE:   I think the provisions - the actual citizenship is not granted until you have attended and pledged your loyalty to Australia.

HIS HONOUR:   All right.  Paragraph 30:  again, I do not think it matters that the passport went by courier or by ordinary post.  Just say, "the Australian passport was sent to New Zealand and used".  I do not think the fact that "the issue of her citizenship was raised in the media" is relevant: "when the issue of her citizenship was raised on 18 November 1998."  I mean, it would not have made a difference to the outcome of the case if the lady next door had mentioned it.

MR ROFE:   Yes - - -

HIS HONOUR:   I had a bit of a problem when I first read 32 but it does seem to correspond to things that were in the stated case in Sykes v Cleary.  I presume this represents what you want to say, Mr Rofe?

MR ROFE:   Yes.

HIS HONOUR:   Well, as I say, looking at Sykes v Cleary, it seems that sort of material was put there.

MR ROFE:   Yes.

HIS HONOUR:   It is not for me really to add or make a suggestion to this but an obvious question that is raised by the form of paragraph 32 where she says "her loyalty is to Australia" is whether that means her loyalty is only to Australia or whether she perhaps has a divided loyalty, I do not know.

MR ROFE:   It is difficult because, I suppose, if we put "sole loyalty to Australia" - she is obviously loyal to other things too like her family.  It is a difficultto - I see what your Honour is driving at.  Indeed, the word "sole" originally appeared but then it was thought it was rather - - -

HIS HONOUR:   I just had a quick look at Sykes v Cleary at the sort of things they said there.

MR ROFE:   What has changed than in Sykes v Cleary is you no longer take an oath of allegiance, you simply take a pledge of loyalty and that is perhaps ‑ ‑ ‑

HIS HONOUR:   I suppose you have to read 32 with 31.

MR ROFE:   We could put "sole loyalty to any country as to Australia".  That would perhaps make it very clear that she is not suggesting she has not got loyaliies to people, family et cetera. 

HIS HONOUR:   Yes, you could put that.  It does not appear quite as clearly as it perhaps might but in paragraph 31 you are intending to say, are you not, that she has, in fact, renounced her British citizenship?  I do not know, as I sit here, what form that renunciation takes.  I am not sure quite how emphatic it is, in other words.

MR FINCH:   There is something about that in 33, your Honour.  So far as she is personally concerned and no doubt she is to be taken to have done what she says to have been reasonable to renounce, but your Honour sees the formal steps are agreed not to have been taken in 33 and 34.

MR ROFE:   Yes.  There is no question that as at nomination date she had not taken those formal steps.

HIS HONOUR:   Why do you not annex the declaration of renunciation, if you have a copy of it?

MR ROFE:   We do not believe we have a copy and I understand they are rather difficult to get.  I mean, she filled it in but she is not given a copy or anything of that nature.  But perhaps we could see if she can get a copy from the British authorities.

HIS HONOUR:   If you can, that just might remove one or two questions.  But I think that is a good suggestion to put in that expression, "her sole loyalty to any country is to Australia".

MR ROFE:   Yes, "is to Australia".

MR FINCH:   If it is of any assistance, we will not have any objection of course to any declaration of her renunciation being tendered at a later date if it is inconvenient to get it now.

HIS HONOUR:   It would be good if we could get it now.  Let us delete these subheadings like "The First Respondent" and "Renunciation of British Citizenship".

MR FINCH:   We will delete all the editorial headings.

HIS HONOUR:   Yes.  Now, in 33 where you say "Under the law of the United Kingdom", instead of putting the reference to the legislation in brackets at the end, why do you not simply say "Under the law of the United Kingdom which is contained in section 12 of the British Nationality Act 1981"?

MR FINCH:   Yes, we will do that.

HIS HONOUR:   This may be assuming something in your favour but proof of foreign law is a proof of fact.

MR FINCH:   Yes.

HIS HONOUR:   In paragraph 24 you say, "On 19 March 1999 an order was made relieving the petitioner from compliance".

MR FINCH:   I thought your Honour had indicated that ought to be deleted but we are happy to leave it in on that basis.

HIS HONOUR:   Paragraph 23 was to be deleted.

MR FINCH:   I thought your Honour had mentioned 24.

MR ROFE:   No, 23 is to be deleted and have the petition annexed.

HIS HONOUR:   Yes.  Paragraph 23 is out.  Paragraph 24 remains in but alter the phrasing of 24 to say, "On 19 March 1999 an order was made relieving the petitioner".

MR FINCH:   Yes.

HIS HONOUR:   And then I think it would be a good idea to add to the end of paragraph 24:  "It is the petitioner's contention that at the date of her nomination" - is it agreed that that is the critical time?

MR FINCH:   Yes, your Honour.

HIS HONOUR:   Do you agree with that, Mr Rofe?

MR ROFE:   That certainly was what was said in Sykes v Cleary.

HIS HONOUR:   "It is the petitioner's contention that at the date of her nomination the first respondent was a British subject and was therefore a subject of a foreign power within section 44(i) of the Constitution".

MR ROFE:   I think, your Honour, it is "British citizen" rather than "British subject" at this stage, is it not?

MR FINCH:   Yes, there does seem to be a - - -

MR ROFE:   There is a difference.

MR FINCH:   - - - somewhat confusing interchange - - -

HIS HONOUR:   Why not say, "was a British subject or citizen".

MR FINCH:   "- - - or citizen".  I was about to suggest we could - there is no harm in putting it in the alternative here.

HIS HONOUR:   Yes.  So, it is "British subject or citizen".

MR FINCH:   In the two locations.

HIS HONOUR:   Now, just before we get to the questions about which I do have some problems, has anybody else have any comments or difficulties they want to raise in relation to the facts?

MR SWAN:   No, your Honour.

MR ROFE:   No, your Honour.

HIS HONOUR:   Well, then the questions - I would suggest that the questions should be in the following order - since this proceeding is only a proceeding in the Court of Disputed Returns, there is only one jurisdictional question, is there not, that is to say, whether the Court of Disputed Returns - what is the section of the Electoral Act that deals with the Court of Disputed Returns?

MR FINCH: Section 354.

MR ROFE:   It starts at 352. Section 354.

MR FINCH:   Your Honour may want to look at briefly at 353(1).

HIS HONOUR:   I would like you to add to paragraph 22 the following words – it says:

On 30 November 1998 the petitioner filed a petition (“the Petition”) under Division 1 of Pt XXII of the Act in the Sydney Office of the Registry of the High Court of Australia –

add the words, “sitting as the Court of Disputed Returns under section 354 of the Commonwealth Electoral Act 1918”.

MR FINCH:   It is actually picked up as “the Act” in paragraph 1.  We can say, “the Act”.

HIS HONOUR:   All right, “under s 354 of the Act”. Then I think the first question, which would just be the question of jurisdiction, would simply be in the following terms:

Does s 354 of the Commonwealth Electoral Act 1918 validly confer upon the Court of Disputed Returns jurisdiction to determine the issue raised in the Petition?

Now, expressing it that way, as it appears to me at the moment, enables anybody to put any arguments they want to put as to why it does not but that is the ultimate question, I think.

Then the next question which would be (b) is:

Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution?

And there might be a couple of different reasons why you would answer that question yes or no but that is the ultimate question, I think.  Then (c):

Was the first respondent duly elected at the Election?

Then (d):

If no to (c), was the Election absolutely void?

I am following Sykes v Cleary at pages 86 and 87 now.  Then (e):

If no to (c), was any and which candidate duly elected who was not returned as elected?

And then (f):

Who should pay the costs of the petition?

MR ROFE:   But, your Honour has already pre-empted, by giving us an order for costs in relation to day 1 – we would not like that to be thrown open again.

HIS HONOUR:   “Who should pay the costs of the petition” – I must say it had not even occurred to me they would include the costs of – “Save for those that have already been dealt with by order of the Court”.

Now, the only reservations I have – and maybe, Mr Swan, I should ask you this.  Those concluding questions that I just formulated, is the Court in a position to answer those questions on the basis of the material that we have here?

MR SWAN:   Your Honour, you will have to excuse me but I did not quite catch the last question that you - - -

HIS HONOUR:   The questions were:  was the Election wholly void?  If it was not wholly void, who was elected?  I have to tell you that as I sit here, I have not got the faintest idea what the answer to those questions ought to be but that is a matter on which I would look to you for assistance.  The question I am asking you is, on the facts stated in the proposed case stated, will the Full Court be in a position to answer those questions?

MR SWAN:   I would submit, no, your Honour.  There would have to be a recount which is one of the - - -

MR FINCH:   That is why we put in (e), your Honour.

MR SWAN:   - - - questions put in there.

HIS HONOUR:   Why would there have to be a recount?

MR SWAN:   Because of the way that certain preferences may flow.  I mean, obviously, with group voting, there is not going to be any difference made to those votes if the procedure followed in In Re Wood is followed, but with “below the line” voting there may be some difference.  I am not sufficiently familiar with the facts to know whether there were – and I do not think it is stated in the facts stated – sufficient “below the line” votes to make a difference or not. 

HIS HONOUR:   Well, then, go back to the question – ask a question, “Was the Election absolutely void?”  Everyone will answer that, “No”, I presume.

MR SWAN:   If Sykes v Cleary is followed, yes.

HIS HONOUR:   May I ask you this:  on the facts stated in the document you have in front of you, will the Full Court be in a position to answer that question?

MR SWAN:   My answer to that is no, your Honour.

HIS HONOUR:   You understand my question?  My question to you is on the facts stated in the document you have in front of you headed “STATED CASE PURSUANT” et cetera, will the Full Court be able to answer the question whether, if Mr Rofe’s client was not eligible, the Election – not her election – was absolutely void?

MR SWAN:   Yes, I am sorry, I now understand the question.

HIS HONOUR:   The Election, with a capital “E”.

MR SWAN:   Yes, the Court will be able to answer that.

HIS HONOUR:   That is what I am concerned about it.  So, we will ask the question whether “the Election was absolutely void” and then we will not ask who was duly elected.   We will ask your questions (e) and (f).

MR FINCH:   Yes, your Honour.

HIS HONOUR:   And then we will ask your question (g) about the costs.  You will be in a position - or your side will be in a position to explain to the Court, will they, on the hearing, why it is that you cannot just say on these facts who is elected?

MR SWAN:   Yes, your Honour.

MR FINCH:   I should say, your Honour, that neither of us actually know the answer to that question.  We had drafted it the way your Honour suggested but we are told that, in fact, we cannot answer that question adequately at the moment.  We bow to the superior wisdom at the moment of the AEC on that question.

HIS HONOUR:   I am surprised that there is not anything being included in the stated case that explains why that is so.  If it be the case that for some reason, as a matter of fact, it is not possible to tell who is duly elected, if Mr Rofe’s client was not duly elected, then the stated case ought to state the facts so that the Court will be told why that is so.  Could you tell me now why that is so, Mr Swan?

MR SWAN:   I think that was the explanation I gave on my misapprehension of your earlier question, your Honour, that there has been no precise calculation of numbers which would show how certain of the votes that were cast would flow and whether that would make a difference to the election result.  I understand your Honour is talking now about whether one other candidate might be declared elected rather than - - -

HIS HONOUR:   Let us assume – the problem does not arise if the Court decides the case in favour of Mr Rofe.  Correct?

MR SWAN:   That is correct, yes.

HIS HONOUR:   The problem only arises on the assumption that Mr Rofe’s client was not eligible.

MR SWAN:   Yes.

HIS HONOUR:   Okay.  Now, what I want to know from your client who, at his request, intervened in these proceedings, is what your client says should be put into the stated case in order to explain to the Full Court why it is that if Mr Rofe’s client is found not to have been duly elected, the Court cannot go straight on to say who was duly elected.  Now, I do not know what the answer to that question is, but your client wanted to be joined in as a party to these proceedings and, being here, it is up to your client to tell us what the fact is or the facts are to be inserted in the stated case to make that clear.

MR SWAN:   Your Honour, I would have to get instructions on that.  I understand that what you seek is the addition of a further paragraph in

addition to 1 to 22:  “Which facts were supplied by the Electoral Commission?”

HIS HONOUR:   Yes. 

MR SWAN:   I would need to have a brief adjournment to get some instructions from my client on the construction of a further paragraph to state those facts which your Honour says are missing and should be there.

HIS HONOUR:   All right.  What, would an hour do?

MR SWAN:   That should be more than sufficient, your Honour.

HIS HONOUR:   All right.  Well, why do we not do this:  it is 3 o’clock now.  I will adjourn until 4 o’clock, if that suits everybody.  In the meantime, could you make the other alterations, leaving a blank for this extra paragraph that is to come from Mr Swan. 

Mr Rofe, my present inclination is by way of preference for section 18 of the Judiciary Act, for no better reason than that is what was done in Sykes v Cleary.

MR ROFE:   Yes.  Your Honour, that may be the safest.

HIS HONOUR:   Yes.  Let us do it that way.  That will involve altering the heading, and I presume there is some conclusion at the end of this to refer to the fact that I am stating the case.  There seem to be some formal parts omitted.

MR FINCH:   There is.

HIS HONOUR:   Have you actually had access to the petition in Sykes v Cleary?

MR FINCH:   I have not, no, your Honour.

HIS HONOUR:   It would not be a bad start.  Do you know where it is.

MR FINCH:   I think it would be very helpful.  I am not sure that any of us have it readily available.

HIS HONOUR:   Yes.  Well, perhaps the Deputy Registar can provide that.  It will be either here or in Canberra and can presumably be put on a fax, and let us just follow the form of that.

MR FINCH:   We certainly will do that, your Honour.

HIS HONOUR:   All right.  Anything else that anybody wants to say before we adjourn until 4 o’clock.

MR FINCH:   Your Honour raised on the last occasion the question of an alternative set of proceedings to be brought in the High Court’s original jurisdiction.  I should at least explain to your Honour what is happening there.  Your Honour, I took you earlier momentarily to section 353(1) of the Act, and your Honour sees what that says.  That is why that has not been done so far.

HIS HONOUR:   Well, it is really a matter for you, I think, Mr Finch.

MR FINCH:   Yes.  We had not finished.  We have not had time to finish discussing it with the other parties but at the moment it appears that that course will not be being taken, particularly for that reason.

HIS HONOUR:   Assuming that we come back at 4 o’clock and agree on the final form of the stated case – I did mention the dates, did I not, when we expect to be able to hear this matter in Canberra?

MR FINCH:   Your Honour did, yes.

HIS HONOUR:   What we will do is then fix those when I come back.  There is another challenge to Ms Hill’s election being commenced in Queensland.  I think that was mentioned on a previous occasion.

MR FINCH:   It was, yes.

HIS HONOUR:   That will be mentioned, I think, tomorrow, I am not one hundred per cent sure, before Justice Callinan up there.  What I will do when we agree on the form of the stated case is then invite the parties to engross the stated case and submit it to me for signature and we will fix a date for mention before the Deputy Registrar so that she can have a look at the progress of preparing application books or the books that correspond to appeal books, and so forth.  All right, well, if nobody wants to raise anything at the moment, we will adjourn until 4 pm.

AT 3.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.15 PM:

HIS HONOUR:   Yes, Mr Finch.

MR FINCH:   Your Honour, may I hand up the current version of the case stated.  Your Honour will see the heading has reverted to the original suggestion of case stated.  The addition that has been made appears in paragraph 23, leaving aside the other changes that your Honour has made, or suggested, rather, which have been incorporated.  What your Honour has not seen before is 23.

HIS HONOUR:   Just excuse me for a moment, Mr Finch.  Have you received yet a copy of the case stated in Sykes v Cleary?

MR FINCH:   I have just got it momentarily.

MR ROFE:   Yes.

HIS HONOUR:   All right.  Well, then, I will alter the heading of this slightly to conform to that.  What I am going to do is hand this back to you in due course to get it engrossed.

MR FINCH:   Yes.  If your Honour is thinking of putting in the full four lines I have just seen then as the preamble, there would be a question about using the expression “questions of law”.  One could delete the words “of law” perhaps, with advantage and replace them with “are”.  It looks, your Honour, from looking at the precedent, that there is no other formality attached to the end of the case stated which needs to be inserted in the document.

HIS HONOUR:   Yes, there is.  There is provision for date and signature.

MR FINCH:   That is so.  Leaving aside that, your Honour, there are no other forms of words though that appear used.  I should check, your Honour, that your Honour’s copy has had a handwritten amendment to the bottom of page 6, “paragraphs 1 – 35” should read “1 –36”.

HIS HONOUR:   I beg your pardon?

MR FINCH:   About four lines from the bottom of page 6, your Honour, I hope that “1 – 35” has been changed to “1 – 36”.

HIS HONOUR:   Yes, it has, thank you.

MR FINCH:   Otherwise, each of the matters that the parties have discussed before your Honour have been incorporated into this document.

HIS HONOUR:   All right.  Just take a seat and let me have a look at this, Mr Finch.  I think we could delete the word “true” where it applies to copies.  How large is the table referred to in paragraph 14?

MR FINCH:   I have a copy of each of the annexures, your Honour.  It is the whole of the - - -

HIS HONOUR:   No.  Could you just show me the table referred to in paragraph 14?

MR FINCH:   Yes.

HIS HONOUR:   Thank you.  I want to understand paragraph 23 a little better than I do at the moment.  Could you just explain that to me, Mr Swan?

MR SWAN:   I will do my best, your Honour.  Basically, the situation is that without carrying out a re-count as was directed in In Re Wood, it is not possible to do a distribution of preferences treating the ballot papers as though Ms Hill, the first respondent’s name was not on there.  Without re‑counting some of the ballot papers with that in mind, it is not possible to work out a distribution of the preferences to arrive at the conclusion as to who should be declared validly elected.

HIS HONOUR:   I do not profess to understand why that is so, but do the parties accept that that is so?

MR FINCH:   Yes, your Honour.  The essential reason is this:  if everyone voted above the line it would not be a problem because one votes generically for a party but because numbers of people vote below the line and express individual preferences, In Re Wood is authority for the proposition that votes cast in favour of Ms Hill are to be treated as a nullity and the vote cast in her favour then descends to the next order of preference below that.  One therefore has to look physically at each of the documents to work out the redistribution particularly of preferences.

HIS HONOUR:   All right, thank you.  Do you accept that, Mr Rofe?

MR ROFE:   Yes.

HIS HONOUR:   Well, that will be included in this case stated in the nature of an act of faith.  It may be – I think it is irrelevant to what goes in this document – that the answer to that “subject/citizen” argument is that you are a citizen of the United Kingdom and a subject of the Queen.

MR FINCH:   With respect, that probably is the answer, your Honour.  That is our view.

HIS HONOUR:   When, if at all, did Australians cease to be subjects of the Queen?

MR FINCH:   The Queen of the United Kingdom?

HIS HONOUR:   In her capacity as Queen of the United Kingdom?

MR FINCH:   I think there are a number of different views about that but it may be the passing of the Australia Act.

HIS HONOUR:   I just want to be sure that there is nothing relevant to that that has to go in the stated case, that is all.

MR FINCH:   Yes.  We do not think so.  In the time that we have had to look at it, we do not think that any of those issues - - -

HIS HONOUR:   As long as it purely turns on legislation and matters of law, it does not have to go in the stated case.

MR FINCH:   No.

HIS HONOUR:   All right.  Paragraph 29:  I think we can delete “early”.  Have you the date of that?

MR ROFE:   No, we do not have the precise date; only the sequence of events, your Honour.  It was before the granting of the - - -

HIS HONOUR:   All right. 

MR ROFE:   I think that should be “Australian citizen” rather than “Australia”.

HIS HONOUR:   Yes, that is right.  I have some difficulty reconciling the facts stated in paragraphs 30 and 32.  Let me just get this clear.  As I read it, she went to New Zealand in 1998 on a British passport.  Did she leave for New Zealand before or after 20 January 1998?

MR ROFE:   After.  She left for New Zealand on 4 February.  She made her application for passport after the 20th but it did not issue in time.

HIS HONOUR:   I follow.  I would like to alter 31 slightly, to say:

On 20 January 1998 the first respondent’s application for Australian citizenship was granted.  She attended a citizenship ceremony in Brisbane.  She took the pledge of loyalty…..A copy of the pledge of loyalty -

This British Nationality Act actually uses the expression “British citizen”, does it?

MR FINCH:   Yes, your Honour.  Your Honour may recall I handed a copy up on the last occasion. 

HIS HONOUR:   Paragraph 33 is not quite grammatical:

upon the Secretary of State being satisfied that:

(a) 

and that looks all right, and then, “upon being satisfied that”:

(b)  if the person renouncing can satisfy the –

there is something wrong with the syntax, and the same with (c):  “upon being satisfied that” – well, that is all right, “he or she is of full age and capacity.”  There is something wrong with the syntax of paragraph (b) there.

MR ROFE:   “Satisfy” – satisfying.

MR FINCH:   There are too many Secretaries of State.

HIS HONOUR:   No, there is something wrong with the syntax of paragraph (b), “upon the Secretary of State being satisfied”, what is it, that he or she will acquire such a citizenship?  Should we delete the words, “if the person renouncing can satisfy the Secretary of State”?

MR FINCH:   Yes.  That is what I meant by saying there was “too many Secretaries of State”.  One deletes all of that.

HIS HONOUR:   Right.  Just remind me where it is in Sykes v Cleary that says that the date of nomination is the critical date.

MR FINCH:   It is some time since I looked at that, your Honour.  There is a discussion in that case of the process of nomination and I think it was in connection with that that it is stated.  I think it may have been the section about midway on page 100, “reflection on these considerations” and the attack was on the ability to nominate or the qualifications for nomination.

HIS HONOUR:   Here, of course, there was no material change in the facts between the date of nomination and the date of election, was there?

MR ROFE:   No, no.

MR FINCH:   No.  Yes, I think that says the same thing.  Page 101 says the same thing, I think, at point 3, “However, once it is accepted”.  As your Honour recalls, the structure of the attack was on the qualifications necessary to be nominated and this part of the argument then determined that nomination was an essential part of the process of being chosen, so that it could flow through to the relief sought which was a declaration that he was incapable of being chosen.  So, that if disqualified from nomination, we say the result flows.

MR ROFE:   Page 99, posed to the situation of where:

a candidate is disqualified only in the event that the disqualifying characteristic is in existence when the poll is declared.

And that is rejected.  It goes back to the - - -

HIS HONOUR:   Can we add to 32, in the second sentence:

This passport had not issued prior to the date of her departure for New Zealand on 4 February 1998, but issued on –

whatever was the date.

MR ROFE:   Seeing that we know the - - -

HIS HONOUR:   In fact, make a new sentence:

This passport had not issued prior to the date of her departure for New Zealand on 4 February 1998.  The Australian passport issued on - - -

MR ROFE:   Your Honour, I am just wondering - - -

HIS HONOUR:   You can give her a phone call.

MR FINCH:   While my friend is looking at that, it seems to us there is a superfluous “or” in 35(a) at the end of the first subparagraph;  (a), (b) and (c) are, each of them, requirements.

MR ROFE:   Yes.

MR FINCH:   A semicolon would do.

HIS HONOUR:   In paragraph 33, where you say:

Upon becoming an Australian citizen on 20 January 1998, the first respondent had no knowledge –

I think you probably mean to say:

Upon becoming an Australian citizen on 20 January 1998, and at all material times until 18 November 1998 - - -

MR ROFE:   Yes, that is so, your Honour.

HIS HONOUR:  

Upon becoming an Australian citizen on 20 January 1998, and at all material times until 18 November 1998 –

I think you should put a full stop after “renounce her British citizenship”.  You have referred to section 12 of the British Nationality Act later, so just say:

Upon becoming an Australian citizen on 20 January 1998, and at all material times until 18 November 1998, the first respondent had no knowledge or awareness of any steps she could or should take to renounce her British citizenship.  The first respondent first became aware of these steps –

delete the words “and provisions” –

when the issue of her citizenship was raised on 18 November 1998. 

Paragraph 34:  can we think of a better expression than “state of mind”?

MR FINCH:   One could simply say, “as at 20 January, the first respondent’s sole loyalty to any country”.

HIS HONOUR:   What about saying, “The first respondent’s understanding as at 20 January 1998 - - -”?

MR ROFE:   Yes.

HIS HONOUR:   - - -“and at all material times since then was and is”?

MR FINCH:   Your Honour has picked up the superfluous “or” at the end of 35(a).

HIS HONOUR:   Yes.  So, 34 will read:

The first respondent’s understanding as at 20 January 1998 and at all material times since then was and is that her sole loyalty to any country is to Australia, where since the age of 11 she has lived, been educated, worked, married and had children.

MR ROFE:   Yes.

MR FINCH:   Yes.  It appears, your Honour, that the best we can do without going any further is to – the documents reveal that on the passport application the application was posted on 8 February - - -

MR ROFE:   Posted out - - -

HIS HONOUR:   You do not need to get this date now, you can put it in over night.  Just give her a phone call.

MR FINCH:   A phone call can be made.  It says so on the second page of the passport when it is - - -

HIS HONOUR:   I am going to be handing this document back to you to be engrossed anyway, so just give her a ring and ask her to look at her passport.

MR FINCH:   If your Honour would be good enough to do that.

HIS HONOUR:   Now, 36:  I realise you say nominations are the critical date but we might as well add, just in case there is an alternative view, “As at the date of her nomination, and up until” – well, do we say when she made the renunciation?

MR ROFE:   19 November 1998.

MR FINCH:   That is when she filled out the appropriate declaration of renunciation.  Your Honour sees that at the top of page 6.

MR ROFE:   Paragraph 33.

HIS HONOUR:   Right.  So, 36 will read, “As at the date of her nomination, and until 19 November 1998”.

MR FINCH:   I am not sure that that may not unduly – I do not wish to put arguments in my learned friend’s mouth.  I am not sure whether that may unduly restrict him.  He may wish to say – and, again, I am not making his case – that she has made a declaration of renunciation earlier than that time by saying what she did upon becoming an Australian citizen.  I am not sure whether he wants to say that or not.

HIS HONOUR:   Well, that was prior to the date of her nomination, was it not?

MR FINCH:   Yes.

HIS HONOUR:   If what you say is right, then it destroys paragraph 36 too.

MR FINCH:   I am only foreshadowing what he may want to argue.  I am quite happy with what your Honour has suggested and it is our argument – I am just suggesting my learned friend may want to say something about that.  I do not want to lock him in.

MR ROFE:   But only, your Honour, if we can limit it, “had not made the written declaration of renunciation which is referred to in paragraph 33.”

HIS HONOUR:   Would it be better to leave 36 out altogether?

MR ROFE:   We are happy for that - - -

HIS HONOUR:   You have the date of renunciation in paragraph 33, have you not?

MR ROFE:   Yes.  We are happy to leave it out.  I was not - - -

MR FINCH:   It is strictly superfluous.

HIS HONOUR:   All right, let us leave 36 out altogether.  We will alter that number back to “35”.  Would anybody happen to have a complete copy of the Judiciary Act?

MR FINCH:   The copy in my service is a complete copy, your Honour.

HIS HONOUR:   Yes, it is reserving, not stating a question.  You either state a case or you reserve a question.  So, on page 6, we say:

Having regard to the facts and matters stated in paragraphs 1 – 35, the following questions are reserved for the consideration of the Full Court.

Make “issue” plural in (a).  I think I will leave (f) out of it.  (e) will be as is.  I will just delete (f), and then (g) will become (f).  I do that because, having regard to what has now gone in in paragraph 23, we are giving a pretty broad hint as to what the answer to (e) would be if you come to that.

MR FINCH:   Yes.  It is a minor matter, your Honour:  in (c) “election” should be a capital “E”.

HIS HONOUR:   All right.  Is everybody happy with that?

MR ROFE:   Yes.  Your Honour, just one:  in 32, I would like to alter the second sentence to read, “This passport had not been received by her prior to the date of her departure”.

HIS HONOUR:   It will no doubt have an issue date on it, and that is the next - - -

MR ROFE:   Yes.  From what we can see, the issue date is probably – the issue was authorised on 2 February but it looks like it was not posted out until 8 February.

MR FINCH:   We should be able to sort out an issue date.

MR ROFE:   We are not concerned with the issue date, it is - - -

HIS HONOUR:   Yes, I am happy with that.  I will alter that.  So, the second sentence of 32 will read:

This passport had not been received by her prior to the date of her departure for New Zealand on 4 February 1998.

And then there will be a new sentence saying:

The Australian passport issued on –

whatever the date was.  And I think you should delete the words “Upon issue” at the beginning of the next sentence and just say, “The Australian passport was sent to New Zealand and used” et cetera.

MR FINCH:   Your Honour, lastly, it may be a matter simply for your Honour’s preference.  The annexures which are referred to in the body of the document, your Honour may prefer or not that they be either annexed or exhibited, depending on the convenience of the Registry and the Court.

HIS HONOUR:   Annexed; they should be annexed.

MR FINCH:   Yes.  Well, that will be done with appropriate annexure notes for each.

HIS HONOUR:   Yes.  Well, I will hand this document back which contains my handwritten notations that I think reflect what we have discussed.

MR FINCH:   Thank you, your Honour.

HIS HONOUR:   That should then be engrossed by your instructing solicitors and agreed with the other side with both of the respondents.  When both of the respondents have agreed to it, your instructing solicitor should hand it into the Registry with the annexures and then I will check it again and if I am finally happy with it I will sign it. 

MR FINCH:   Thank you, your Honour.  There are a number of other matters arising.  The two that occur to me are:  section 78B notices to the several Attorneys.

HIS HONOUR:   Yes, they will need to be sent out.

MR FINCH:   And secondly, although it may be unduly complicating things, it may be prudent to notify the other candidates.  This should probably be factored in to the next date upon which your Honour is going to have the matter mentioned so that those steps can be taken in good time before that date.

HIS HONOUR:   What are those steps again?

MR FINCH:   The first step is the sending of 78B notices to the Attorneys.  The second step – and this is one which may require some discussion – is the notification of other candidates.  The reason I say “other candidates” in an unqualified way is it is perhaps difficult to say now the basis of any restriction upon notification to other candidates.  There are, I think, 57 other candidates.

HIS HONOUR:   Just remind me why other candidates are entitled to be notified?

MR FINCH:   They are not entitled to be notified.  I raise it only as a matter of prudence.

HIS HONOUR:   If they are not entitled to be notified, why notify them?

MR FINCH:   Well, it may be that others may wish to seek to appear to persuade the Court that the steps that may follow upon the Court forming a view that the first respondent was incapable of being chosen should be other than the views put forward from the Bar table.  They may have a - - -

HIS HONOUR:   Is it necessary to do that?

MR FINCH:   It is not strictly necessary.  It is not required for compliance, so far as I am aware, with any rule or other provision of any Act.  I raise it simply for the consideration of the parties.  It may be that other candidates feel slighted if they are not given an opportunity to persuade the Court that they ought to be elected.

HIS HONOUR:   I do not know what you mean by “slighted”.  Either they have a right to attend or they have not a right to attend.

MR FINCH:   Yes.  We say that there is no obligation upon us or anyone else to notify them of these proceedings.  I simply raise - - -

HIS HONOUR:   I mean, sometimes when you notify people of proceedings, they feel they are obliged to come along at, I might say, considerable expense to themselves.

MR FINCH:   Yes.

HIS HONOUR:   It is not the sort of thing to be done lightly.

MR FINCH:   I understand that, your Honour.  I raise it only perhaps by over-abundant caution.  It may be that some parties think that other parties should be notified.  It is perhaps a matter for - - -

HIS HONOUR:   Is there anybody who wants to suggest that anybody else should be notified?

MR ROFE:   No, your Honour, because I suppose, in one sense, the petition itself has been advertised and the only persons who have responded to it was the first respondent.  So, we could open a gate which, as your Honour says, might attract people who feel they are obliged to be notified.  I think, on reflection, your Honour, the answer is, no.

HIS HONOUR:   Do you suggest that anybody else should be notified?

MR SWAN:   No, your Honour.  The petition, as I understand it, has been advertised according to what is in the High Court Rules and that is really all the notice that needs to be given.

HIS HONOUR:   All right.  If that petition can be put in final form and engrossed by tomorrow, and I am happy with it in its final form, I will sign it tomorrow.  I suggest you move promptly to do that because I am going to be in Hobart on Wednesday and Thursday and therefore would not be available to sign it again until after Easter.  So, let us try and get it signed tomorrow.

MR FINCH:   Tomorrow morning, we would be able – the only thing it is subject to is getting the issue date and presumably one should date it tomorrow because that is when your Honour will state the case and reserve the questions.

HIS HONOUR:   Yes, that is right.  As I mentioned on an earlier occasion, the matter will be listed for hearing before the Full Court in Canberra on 11 and 12 May.  Now, you will have to send out your 78B notices immediately.  It should be listed for mention before the Deputy Registrar in Sydney on a date convenient to her and to the parties between now and the beginning of May.  Would you care to suggest a date?

MR FINCH:   All of them between now and then are equally inconvenient to me.  Perhaps I can invite the convenience of the other parties.

HIS HONOUR:   Would Wednesday, 21 April be a convenient date to the parties?

MR ROFE:   What time would that be, your Honour?

HIS HONOUR:   Would you prefer to make it out of Court hours?

MR ROFE:   Yes, please.

HIS HONOUR:   9.30.  If, for any reason, it becomes necessary for me to sit again or give any directions, then you can contact me.  Is there anything else we need to attend to?

MR FINCH:   No, your Honour.

HIS HONOUR:   All right.  Then I will reserve costs of today’s proceedings and certify for counsel, and the matter will be adjourned until 9.30 before the Deputy Registrar on 21 April 1999.

MR FINCH:   If the Court pleases.

HIS HONOUR:   Now, I have spoken to Justice Callinan in the meantime and he is going to list the other matter for mention later this week in Brisbane and just inquire as to the attitude of the petitioner there as to whether he wants to endeavour to make his matter ready and to come along on 11 and 12 May or whether he is content to let you make the running. 
Very well, I will adjourn.

AT 4.57 PM THE MATTER WAS ADJOURNED