The Australian Electoral Commission v Johnston & Ors; Wang v Johnston & Ors; Mead v Johnston & Ors
[2013] HCATrans 309
[2013] HCATrans 309
IN THE HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF
DISPUTED RETURNS
Office of the Registry No C17 of 2013
B e t w e e n -
THE AUSTRALIAN ELECTORAL COMMISSION
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
ZHENYA WANG
Seventh Respondent
LOUISE PRATT
Eighth Respondent
Office of the Registry
Perth No P55 of 2013
B e t w e e n -
ZHENYA WANG
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
LOUISE PRATT
Seventh Respondent
AUSTRALIAN ELECTORAL COMMISSION
Eighth Respondent
Office of the Registry
Perth No P56 of 2013
B e t w e e n -
SIMON MEAD
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
ZHENYA WANG
Seventh Respondent
LOUISE PRATT
Eighth Respondent
THE AUSTRALIAN ELECTORAL COMMISSION
Ninth Respondent
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH
ON THURSDAY, 12 DECEMBER 2013, AT 12.03 PM
Copyright in the High Court of Australia
____________________
MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MR P. KULEVSKI, the petitioner in C17, the eighth respondent in P55/2013 and the ninth respondent in P56/2013. (instructed by Australian Government Solicitor)
MR S.P. DONAGHUE, SC: May it please the Court, I appear with MR D.W. BENNETT, for the first, third and fourth respondents in each of the three matters. (instructed by Colquhoun Murphy)
MR T.D. LANG: May it please the Court, I appear with MR E.M. HEENAN, for the second and eighth respondents in C17 of 2013, for the second and seventh respondents in P55 of 2013 and for the petitioner in P56 of 2013. (instructed by Slater & Gordon Lawyers)
MR J.A. THOMSON, SC: May it please the Court, I appear with MR D.B. SHAW, for the fifth respondent in each petition. (instructed by DLA Piper Australia)
MR R. MERKEL, QC: If your Honour pleases, I appear with MR F.I. GORDON, for the sixth respondent in each matter. (instructed by MDC Legal)
MR K.A. BARLOW, QC: May it please the Court, I appear with MR T.O. PRINCE, for Mr Wang, who is the petitioner in P55/2013 and the seventh respondent in both other matters. (instructed by Hopgood Ganim Lawyers)
HIS HONOUR: Yes. I have called all three petitions. Is it convenient to deal with the question of directions together?
MR GLEESON: Yes, your Honour.
HIS HONOUR: Yes, Mr Solicitor.
MR GLEESON: Your Honour, could I just address two matters at the outset? The first is the question of whether all or part of the matter should be referred to the Federal Court, and the second question concerns some mechanical matters in the event the matter stays in this Court where the Commission has some information which might bear on those questions.
As to the first matter, our submission is that the matter should remain in this Court, given the importance of the questions of law, the gravity of the relief and on a proposition which hopefully will not prove overly optimistic that factual disputes can be managed. Your Honour, we have addressed those matters in the written submissions and I did not propose to develop that further at this point in time unless your Honour wished me to.
HIS HONOUR: Well, how do you see the directions proceeding? At what point do we come to look at such questions as whether there is a question of law? At what point do we look at whether I should fix a trial date? At what point do we look at whether I should remit?
MR GLEESON: One available course – and your Honour will have seen from our supplementary submissions we have first identified some questions and, secondly, we have identified some pro forma directions – one available course would be for the Court to make, this morning, directions which would deal with, in terms of our pro forma orders, paragraphs 1 through to 7, the effect of which would be to the extent some parties wish to explore the 946 ballots or some of them, a question we say is legally irrelevant, they can get on with that exercise. We could then come back before the Court shortly after, say, 14 January and the Court could then fix a hearing date. That is one course that we would recommend.
Your Honour, I was going to indicate ‑ which might support that and in terms of the question of mechanics – the Commission has indicated it will voluntarily transfer to the Court’s custody the original ballots which are approximately 946 in number. My instructions are that can be done by 20 December 2013.
HIS HONOUR: Where?
MR GLEESON: To any Registry of the Court thought appropriate.
HIS HONOUR: If that were to occur, order 4 in this proposed draft would be inapposite, would it not?
MR GLEESON: Well, order 4 covers the other category of material, which is the records, the secondary evidence records relating to the 1,370 missing ballot papers. That order could remain and, again, the date would be 20 December 2013. Then, although the time of year is unfortunate, orders 5, 6 and 7 could allow the parties who wish to buy into some of the reserve ballots to do their work.
HIS HONOUR: Well, that presents, does it not, a question about the sequence of events?
MR GLEESON: Yes.
HIS HONOUR: As I understand it from your submissions, there is a question which you say arises ‑ I do not know whether other parties will say it arises or not – but there is a question you say arises about whether it is either permissible or necessary to undertake factual inquiries of the kind identified in paragraph 4 – paragraph 8.4 of your supplementary submissions.
MR GLEESON: Exactly, and that is our primary position, and ‑ ‑ ‑
HIS HONOUR: Well, the question that then arises is which comes first.
MR GLEESON: Yes. We were attracted to the notion in paragraph 9 of our supplementary submissions that the legal questions come first, and if they are answered one way, the factual inquiry is completely irrelevant. If they are answered the other way, the scope of what is necessary or desirable as a factual inquiry will be ascertained and then it can be done in the appropriate court, whether that is here or on referral, but at least then we will know whether any of that is necessary.
So to bring that together, your Honour, two possible options we are suggesting, and perhaps our preference for them would be deal with the legal questions first, the questions are of such significance they should be dealt with in this Court and it would then be for the Court as to whether they are dealt with by a single Judge or the Full Court. Your Honour, I just wanted to indicate ‑ ‑ ‑
HIS HONOUR: If there is a question about whether it is permissible to look at this information, if I can use that as a neutral term, what, if anything, does that say – it may say nothing – about the Court setting up arrangements under the supervision of the Court to inspect ballots that were reserved?
MR GLEESON: Well, it may be undesirable, at a minimum.
HIS HONOUR: Well, leave aside desirable or undesirable; what, if anything, does it say about power?
MR GLEESON: Well, it may be outside the power because when Justice Tracey in Mitchell v Bailey (No 2) contemplated a regime like this he did it within a framework where the court in the hearing was permitting legal representatives to do this sort of exercise for the purpose of assisting the court to hear and determine the matter under section 281, and in that sense one could understand the power to do the regime.
On our primary position, we are not even at that point because the exercise is not available. So I should be clear, our primary submission would be that questions such as those in paragraph 8 of our supplementary outline may not need to be supplemented by any other questions of law, should simply be fixed first.
HIS HONOUR: Do the questions in paragraph 8 collapse into a two‑part question ‑ and I do not know whether they do ‑ but do they collapse into a two‑part question about permissibility of undertaking particular steps and, if permissible, necessity of undertaking those steps in the circumstances alleged in whatever may be the relevant petition?
MR GLEESON: They do.
HIS HONOUR: According to the outcome, it may or may not then be possible to answer a further question about relief?
MR GLEESON: Yes. Then the proposed questions ‑ question 3, of course, picks up what we have called, ineloquently, the standard of proof question, what does likely mean, and that will bear upon the relief, of course. Your Honour, while your Honour is doing that I might just mention there is one other question we have not identified there but it is possible other parties might; I will just raise it, if I can, and then it can be dealt with during the morning.
It is the question of the role of the Court under section 281. Is the Court doing judicial review or is it doing a de novo hearing? That is an important preliminary question, perhaps, because it would determine, even if one got to factual inquiries, what the Court would be doing within the factual inquiries. In Mitchell v Bailey (No 1) the Commission argued that the function was not de novo, it was a form of judicial review, and that was rejected by Justice Tracey, and that is where the law currently stands, but it may be some parties ‑ ‑ ‑
HIS HONOUR: Well, is that a task which finds its statutory root in 281(3)?
MR GLEESON: Yes.
HIS HONOUR: Why? I would have thought 281(3) was cast in terms of power. I think you have to read 281(3) as necessarily conveying rather more than the words taken at their most literal would suggest.
MR GLEESON: Yes.
HIS HONOUR: I know that – I am sure that there is a lot of “lore” as well as “law” in this area, but we might have at some point to come down to the “law”.
MR GLEESON: Yes, and just adverting to the fact that where the current law stands following Justice Tracey’s decision, if it is permissible to look at individual ballots, the exercise being contemplated by some parties here is for a judge to look at each ballot and make up his or her own mind whether it adequately conveys a formal voter intention as opposed to an exercise which says, was it open to the relevant AEO or officer to reach such a conclusion, and that would shape the nature of the Court’s examination of such ballots as remained in the ring.
HIS HONOUR: Is anyone in a position where they can put forward any estimate of how long this process of trawling through 960 ballot papers out of court might be anticipated as taking? I know it is a piece of string and it can be as long as the parties want to make it. What I am really looking for is whether it is possible – you may tell me it is not possible – to get some realistic estimate of how long should be allowed if this process can be undertaken.
MR GLEESON: Could I just give a partial answer? I cannot answer your Honour’s question directly.
HIS HONOUR: No.
MR GLEESON: One matter we obtained instructions on was the Court’s second question raised overnight, which is are we only talking about 70 or 170 or are we talking about the whole 940‑odd, and the answer is we may be talking about more than the smaller number for this reason, that you cannot easily identify which ballot papers affected the 50th exclusion point without doing it in a one‑by‑one exercise. So you go through each one individually. I am told it would take about three to four hours within the easy count computer system to run it multiple times to find out how each vote played out through the various counts. So just on that limited aspect of the exercise, even knowing which of the 900 you need to look at, from the Commission’s part that will be a slow exercise, but perhaps others can be more ‑ ‑ ‑
HIS HONOUR: Well, just before you sit down, Mr Solicitor, I want to take this in turns; I am not having sequential submissions. The other point that needs to be made about any inspection process is that except on very good cause shown it would be one‑off. It would not be each party coming along at its discretion and going through the whole exercise separately. That is an impractical prospect.
MR GLEESON: We agree with that, your Honour.
HIS HONOUR: If we are to go down that path the papers will be pulled out of their bundles and examined once, except for good cause shown, not once per party.
MR GLEESON: Yes. The Commission accepts that completely, your Honour.
HIS HONOUR: I am sure it does because it is not going to be part of the process, Mr Solicitor. Your generosity is overwhelming.
MR GLEESON: That is why I spoke of the transfer of custody, your Honour.
HIS HONOUR: Yes, I know.
MR GLEESON: I will not make any remarks about ensuring the transfer occurs safely and effectively without loss on our part.
HIS HONOUR: With the satchel manacled to the hands of a ‑ the arm of a safe hand courier, I would have thought.
MR GLEESON: Certainly, your Honour. So perhaps I will just sit down in a moment, your Honour has so many parties here. But so it is clear, we have done our best to identify some questions in paragraph 8 that we submit, subject to any revision or improvement, can and should be dealt with first and they are of such importance they can and should be dealt with by the Court, possibly the Full Court, and they are questions which, if answered one way will avoid any factual inquiry, if answered the other way they will at least indicate whether a factual inquiry is truly necessary.
HIS HONOUR: On what factual footing would those questions go forward, whether to a single Justice or to an enlarged Court?
MR GLEESON: We had considered it could simply be on the basis of the three petitions without need to separately create a special case or a stated case because on the first part of the case, the 1,370, the parties are ad idem and as to what conclusions are to be drawn, that is where the area of the legal debate is so it is not really a case of us needing to negotiate out of court to try and narrow the factual dispute further.
HIS HONOUR: I have, relatively speaking, a difficulty in accepting that there seems to be general agreement that 1,370 ballot papers are not available, and at least for the moment it seemed to me that all petitioners appeared to accept that that resulted in or constituted – I do not pause to examine which – an illegal practice. What worries me, Mr Solicitor, is what other facts parties would wish to say bear upon, perhaps not permissibility of the course, but necessity for the course in the circumstances alleged.
Now, it may be, I do not know, that it would be appropriate to put forward the question on the basis of the matters alleged in the petition question, question, question, and I suspect it would be desirable that respondents to the petition should be in a position where they have made plain in some comparatively informal way, but binding way, what facts are admitted, what facts are disputed.
Now, I am not talking about producing a formal pleading but I do not want the question to come on, wherever it comes on, with World War III then breaking out about there are these additional facts which bear upon the issues. Do you understand the kind of problem I have in mind?
MR GLEESON: Yes, certainly, your Honour, and we could take that in two categories. In relation to the 940‑odd ballot papers, those facts will not be being opened up in stage one because the whole question is whether they can be opened up perhaps.
HIS HONOUR: Yes.
MR GLEESON: With the 1,370 it may be slightly different because it may be some parties at the table want to say it is necessary to conduct further inquiry because we want to argue that if you channel a bit further down into the missing votes, et cetera, you might be able to draw some inferences or conclusions as to whether, if we had not lost them, we could have had certain inferences and conclusions about the result.
Now, that is the exercise we are saying is not necessary, but if parties want to say it is necessary they can probably identify in a document your Honour is contemplating what it is that they would be wishing to contend on that line without the Court having to resolve it. What I really have in mind is one of the submissions I think referred to the possibility of expert evidence. We do not see that expert evidence would be relevant in the answering of the questions.
HIS HONOUR: Directed to giving an opinion about what question?
MR GLEESON: I think the theory was that someone could say, based upon what is known, through the secondary evidence of the missing 1,370 votes, and making assumptions about how the various counting and exclusion points went one can conclude that – and then I am not sure what the final answer will be but it will be something like one can conclude that with some measure of safety the secondary evidence sufficiently represents the missing primary evidence.
Now, it is a very difficult proposition but that is what has been foreshadowed, that someone can somehow look at what is known about the way the process unfolded. We are not commending that course, your Honour, but it would be a sort of course that said, well, we know, for instance, 7,500 votes changed status between the original count and in the recount, and we know that a certain number went from formal to informal and vice versa. We know certain other things have happened.
Based on all of that, what the Commission is putting forward as a simple proposition, namely, 1,370 missing votes is too many when the margins we are now facing are either 12 or 14 or one, or even if they were 70 or 160. No, no, you can do much more than that, you can draw some inferences that – and then it becomes very difficult at the last level because for one interest at the Bar table the inference you should draw is no, the two current people were correctly elected, and the opposite inference is no, the court should remove them and put two other people in.
The Commission’s reluctant position is that none of that can be safely concluded, none of it should be concluded, and we answer the questions and then unfortunately but necessarily a fresh election follows.
HIS HONOUR: But the inference of which you speak hypothetically is an inference which, if it is available, is available by a discernible process of reasoning.
MR GLEESON: Yes.
HIS HONOUR: Either that process of reasoning can be articulated in a court in argument or it cannot.
MR GLEESON: Yes.
HIS HONOUR: Having someone come along and say that here is the reasoning I have adopted to arrive at a conclusion is as good as the reasoning that is revealed, and if there are assumptions built into it is as reliable as are the assumptions that are built into it.
MR GLEESON: We would accept that, your Honour, and within the mandate of section 364 of the Act we would commend that such evidence should not be necessary or received as expert evidence. If there is a good proposition of reasoning that can be put, it can be put, but no more is needed. Your Honour, I think those were the matters that I wished to put and I have attempted to put an answer to your Honour’s questions.
HIS HONOUR: I am sure they are. Forgive me for delaying you a moment, Mr Solicitor. Can I just understand by reference to the pro forma orders what your present position is?
MR GLEESON: Yes.
HIS HONOUR: You understand I am not trying to tie you finally to this as the discussion proceeds, but at least at the moment the initial position is I should make what orders?
MR GLEESON: Your Honour should make order 1, order 2. Your Honour should defer making orders 3 to – your Honour should defer making order 5, 6 and 7.
HIS HONOUR: I should make orders 3 and 4, or not?
MR GLEESON: Your Honour should not ‑ ‑ ‑
HIS HONOUR: Order 3 modified, but ‑ ‑ ‑
MR GLEESON: Yes, your Honour would make orders 3 and 4 because that just gets that secondary evidence before the Court for anyone who wishes to use it in the questions. Then order 8 ‑ ‑ ‑
HIS HONOUR: Well, do I set a trial date?
MR GLEESON: Yes, and in respect to questions, not in respect to all issues, but in respect to the questions in paragraph 8 of the supplementary outline, subject to such modification as occurs this morning, and then your Honour would make 9, 10, 11 and 12.
HIS HONOUR: Then the consequential timing directions of the kind in 9 to 12 ‑ ‑ ‑
MR GLEESON: Yes.
HIS HONOUR: ‑ ‑ ‑ but 8 you say would be in the form of set down for trial, presumably subject to further or other order.
MR GLEESON: Yes, on the basis of the three petitions ‑ ‑ ‑
HIS HONOUR: Particular questions.
MR GLEESON: ‑ ‑ ‑ the particular questions.
HIS HONOUR: All right. Well, at least I think I understand the current state of play from the Commission. Forgive me for subjecting you to a set of interrogatories.
MR GLEESON: Thank you, your Honour. It is always a pleasure.
HIS HONOUR: I know it is Christmas, Mr Solicitor. Mr Donaghue, if you could come to the lectern. I know it is tight, but it will assist transcription.
MR DONAGHUE: Thank you, your Honour. Your Honour, could I address the Court on two questions? The first is which court, and the second is the sequencing issues that you have discussed with the Solicitor‑General. Very briefly on the question of which court, we submit as follows. Your Honour will understand that the three respondents for whom I act, the first, third and fourth respondents, were elected to the first, third and fourth positions in the WA Senate election and the Commission accepts that there is no deficiency in that electoral process; they were all duly elected and returned.
HIS HONOUR: It is in the interests of your clients to preserve the election that was held and not have it declared void.
MR DONAGHUE: Well, indeed.
HIS HONOUR: I understand that to be the interests of your clients, Mr Donaghue. What follows from that?
MR DONAGHUE: Well, what follows is that the application that is made is an application to vacate what is accepted by the Commission to be a proper election of those first four senators so as to facilitate the process of filling spots five and six.
HIS HONOUR: But you cannot have a separate election for five and six, can you?
MR DONAGHUE: No, but ‑ ‑ ‑
HIS HONOUR: Therefore it is either one in, all in, one out, all out, is it not, and the question is who is in in the inside or out in the outside?
MR DONAGHUE: Or whether there is an available mechanism, having regard to the breadth of the Court’s powers as the Court of Disputed Returns to achieve a just outcome that is sufficiently reflective of the views of the electors so as not to have a consequence of prejudicing the election of people who were properly elected. We submit simply that in the past this Court has been astute to avoid, in a Senate context, making orders that have an adverse effect upon duly elected senators and that the consequence that the Commission seeks in this case is of such gravity that that is itself a reason that the matter should appropriately stay in this Court.
The other fact that points in that direction, we submit, is that the questions that the Commission has raised overnight, do we submit, raise a number of issues of significant public importance that are appropriately resolved here and that there brings me to the sequencing.
HIS HONOUR: Do you make any submission about the sufficiency of identification of the questions that the AEC presently is speaking about? I am not trying to tie you to drafting. I suspect that if questions are going to be framed then there will have to be a deal of work done in framing them, but do you have any submission about the sufficiency of the subject matter of the questions that they are talking about or are there some you would take out or some you would add?
MR DONAGHUE: It seems to us, your Honour, that the questions really fall into two categories. The category of questions directed to can these extra votes be looked at, and there we think, while subject to the drafting proviso your Honour mentions, questions 1 and 2 probably do raise the kinds of issues that we would be seeking to address there and ‑ ‑ ‑
HIS HONOUR: Are there two sorts of issue about that, namely, permissibility and necessity in the circumstances of this case or is that sending us down a false path?
MR DONAGHUE: Certainly permissibility is raised squarely. The necessity question, if it arises, probably arises in the other petitions.
HIS HONOUR: But in the other petitions would a question of necessity to look at the 1,370 secondary evidence arise if it is permissible to do so?
MR DONAGHUE: I think the answer to that is yes, your Honour.
HIS HONOUR: Yes.
MR DONAGHUE: Then the other set of questions – and it is possibly buried within questions 3 and 5 – affects the ultimate question of relief and what should be done even if the facts are exactly as the AEC has alleged. There we see a real difficulty with the Court progressing to consider that question at the same time as it considers the first sets of issues because one of the questions is is any illegal practice that occurred likely to have affected the result and the answer to that seems to us to turn, or potentially to turn, completely on the answer that is given if it turns out to be permissible to conduct the factual inquiry and to look at the other evidence. One result of that process may be that the margin at the 50th exclusion point is sufficiently decisive so that the Court could not be satisfied that the loss of the votes was likely to have affected the result.
HIS HONOUR: That presupposes that there can be – and I do not intend to add some colour to it by saying that presupposes that a reconstruction exercise can be undertaken, that is, is there a question here? I do not know. Is there a question here whether loss of 1,340 ballot papers, illegal practice, without more dictates the outcome?
MR DONAGHUE: As we understand it, the Commission seeks to raise that question. We say – and we say it by reference to authority, including Blundell v Vardon back a long time ago, in 1904 when Justice Barton looked at a case where 9,000 votes were lost at the recount point and the question was did you proceed with the recount and, if so, what did you do about the missing votes, and his Honour did proceed with the recount and used the best evidence available for the missing votes, as we read the judgment.
So that is the kind of approach that we will be urging on the Court here. We accept there is a debate about whether you can do that but, in our submission, that is the result that we will be urging upon the Court. If that argument is open it is difficult to have it in a useful way without knowing the factual substratum upon which the argument is to be advanced. As we apprehend it, your Honour, the problem with the sequencing of this issue is there is a risk of wasting judicial time almost whichever way you cut the issues. One option, it seems to us, is ‑ ‑ ‑
HIS HONOUR: The waste of judicial time is less important than the waste of time, if it be properly described as that, in getting to a final answer on the petition. The overwhelming and overriding consideration I think must be determination of each of the petitions that has been instituted as soon as reasonably possible.
MR DONAGHUE: We agree with that, your Honour. We think, with respect, that if one goes down the Commission’s path, asks the question and the answer to the question is that it is permissible to engage in the factual inquiry and the results of that inquiry either can or should be – must be taken into account, then that will mean that there is then a factual process that has to be gone through that will not even have started until the Court has answered its questions whereas, if one does it the other way around, and either in this Court or on remittal to the Federal Court has the factual questions answered first, then the whole legal – on the settled facts the question can go to the Full Court on one, are those facts relevant and, two, if they are what is the answer. It seems to us that that pathway produces the fastest answer.
HIS HONOUR: But how long are these factual inquiries going to take, Mr Donaghue? My understanding is Justice Tracey spent days wading through ballot papers in the Bailey Case. Now, if that has to be done, it has to be done, but ‑ ‑ ‑
MR DONAGHUE: In that respect, your Honour, can I say this? Because of the opening remarks that I made the position of those respondents for whom I act is not affected except that we need to know what the facts are one way or the other, so my clients will not be major players in any such recounting process and I am afraid that we are not really in a position to assist on how long that might take. We submit that is really a matter for those who are more directly affected by it, but we do submit ‑ ‑ ‑
HIS HONOUR: Could I put it out on the table? What happens if questions are formulated and set down for trial in either the week before or the week after Australia Day? Now, that would necessarily be before a single Judge. But if the parties say that this is a matter which ought to go into a Full Court, then – or some of the questions are questions which ought to go to a Full Court, we cannot do that, I suspect, much before, at the very earliest, February, and that would entail recasting the whole of our list for February, but let us face that problem if it arises.
MR DONAGHUE: It seems to us, your Honour, that – particularly were there to be a possibility of a Full Court hearing on the questions in February, it may well be possible to have the factual issues resolved in the Federal Court between now and then, and those issues having been ‑ ‑ ‑
HIS HONOUR: That surprises me, Mr Donaghue.
MR DONAGHUE: Well, particularly if subjected to the discipline that your Honour referred to earlier, my understanding is that in Mitchell v Bailey ‑ ‑ ‑
HIS HONOUR: If I remit those questions that is not subject to my discipline.
MR DONAGHUE: Your Honour, I understand in Mitchell v Bailey that the process adopted was each party separately inspecting over a period of time and that, no doubt, would have significantly pushed out the amount of time that that process involved. We would apprehend that if this Court indicated that there was to be a listing of the matter before a Full Court in February that would be a factor that would significantly expedite the speed within which things would move in the Federal Court.
HIS HONOUR: Just from the reports of Mitchell v Bailey, the earliest date given in the report is 28 March 2008. Mitchell v Bailey (No 2) was decided on 2 July 2008.
MR DONAGHUE: I am informed by Mr Bennett who appeared in that matter, your Honour, that there were a number of preliminary questions that were raised as to the legal issues before one got to the determination of the factual inquiry. Your Honour, I do not want to cut across what I said earlier. In the end, if it cannot be done in that time, then that is possible but that is really a matter, we submit, for the parties directly raising the issue ‑ for the two petitioners who have raised it.
But we do submit that really only if the Court knows the result of that factual process before any questions go to the Full Court is it likely that the Full Court can, irrespective of the outcome of the AEC’s objections to admissibility, if I can describe them in that way, though the answer to those objections might stand in the way of a final determination of the matter unless the facts have been found first. We submit that there is sufficient ground for contest about what the AEC says about how 365 of the Act works so that the Court cannot be confident that the AEC’s objection will be upheld on that point; there will be a live debate on that topic.
So we submit the existence of that debate properly factors into the sequencing question and in the event that – I think the AEC proposed all of the inspection happened and submissions be put in by 14 January was their proposal. If that happened, then that would, it seems to us, leave open the possibility that the Court could determine the issue within the timeframe that your Honour contemplates.
I should just on that point make one note about the AEC’s pro forma. If your Honour turns to that pro forma and looks at order 7II, 7II appears to contemplate the making of legal submissions on the admissibility question and that is a question we submit should not be referred to the Federal Court. That is one of the questions upon which the Full Court’s opinion should be sought, so that the Federal Court on the proposal I am advancing would look at the factual question about the ballots, formal or informal, cast for whom so that the correct numbers could be placed before the Full Court for the purpose of determination of all of the legal questions that the Commission seeks to raise.
HIS HONOUR: So by reference to the pro forma orders what is it that you say I should do?
MR DONAGHUE: Your Honour, we agree with 1 and 2. We would submit ‑ for reason I will come to in a moment ‑ that order 3 should be changed to orders 4 to 8 rather than 4 to 7. Orders 4, 5 and 6 – well, I think actually, your Honour, these orders are all predicated on the matter staying here.
HIS HONOUR: They are. So what is it you want?
MR DONAGHUE: Well, my client is neutral as to the question of whether the factual issue is resolved in this Court or in the Federal Court, but we submit it is more practical to have it done in the time in the Federal Court.
HIS HONOUR: Yes.
MR DONAGHUE: But we would contemplate that the Federal Court would make orders in the nature of 5 and 6. This Court would refer that question in the nature of 7I to the Federal Court, acting pursuant to, I think, 354(3) of the Act, and then the matter would – well, I think, your Honour, it would then be necessary for the parties to file an agreed special case reflecting the outcome – the facts essentially as alleged in the three petitions and incorporating the outcome of the Federal Court determination and the questions to be referred to the Full Court.
That, I apprehend, could be done within a very short space of time because if it is the facts essentially as alleged in the petition plus the result in the Federal Court that should be uncontroversial, we would expect, so the matter could have that agreed foundation in order. Now, the consequential directions would then depend upon when the Court proposed to address the questions.
HIS HONOUR: Yes. Do you have any difficulty about your side putting on some document which records what facts are admitted and what facts are disputed?
MR DONAGHUE: No, your Honour.
HIS HONOUR: Yes.
MR DONAGHUE: If your Honour pleases, those are our submissions.
HIS HONOUR: Thank you. Yes, Mr Lang.
MR LANG: Your Honour, our position is that the questions that the AEC has raised today in paragraphs 8.1 and 8.2 of their supplementary outline need to be answered first and that it is premature to be inspecting ballot papers and other steps such as that until those questions have been decided. The most efficient way of conducting the case is for those issues to be determined as threshold issues.
Your Honour, we are neutral as to whether those questions are determined in this Court or referred to the Federal Court. We obviously disagree with the position taken by the AEC in relation to both of those issues, but it is a matter of interpretation of the statute and of authority. We, therefore, would anticipate that the AEC will not succeed on those points and therefore the ballot papers will need to be – reserve ballot papers will need to be ruled upon by a judge. If that is the case, it will be preferable for that to occur in the Federal Court and our position generally is that the whole matter should be heard by the same court rather than being transferred from one court to another. In our view, that is likely to be more expeditious than the alternative position.
So, your Honour, in relation to the specific orders in the pro forma – I am sorry, your Honour, if I can come back to paragraph 8 of the outline, it is only the first two questions that in our view need to be determined as threshold issues. In relation to paragraph 8.3, the standard of proof, we agree with my learned friend, Mr Donaghue, as to the need for that question to be considered after the ballot papers have been examined, if that is to be permitted.
In relation to the question that your Honour has raised with other counsel about permissibility and necessity, your Honour, I will be very direct about this. If the AEC succeeds in its arguments in relation to the two questions in 8.1 and 8.2, our case must necessarily fail; there is no doubt about that. We have pleaded very directly in our petition the basis on which we – the relief we seek could be granted.
HIS HONOUR: As turning on can you reconstruct.
MR LANG: Precisely, your Honour, and that has to be our position as a matter of logic, it cannot be any other.
HIS HONOUR: Yes.
MR LANG: So that is our position, that is why I say these are threshold questions and they should be determined first. No one should be trawling through – what is it – 941 ballot papers if that exercise is arid, neither this Court nor the Federal Court, nor indeed the parties. It would be a complete waste of time and expense. So the AEC has raised these two issues. We say they are threshold issues, they should be determined first. We say they can be determined quite quickly, they are quite discrete issues.
HIS HONOUR: Are they questions which could be determined either in the week that is ‑ set down for argument, rather than determined ‑ in the week before or the week after Australia Day?
MR LANG: Your Honour, personally I would prefer the week after, but the answer is ‑ ‑ ‑
HIS HONOUR: Life is like that, is it not, Mr Lang?
MR LANG: It is. I have small children though, your Honour, and this will be another January gone. But having said that, your Honour, of course, if that suits the Court that will ‑ ‑ ‑
HIS HONOUR: But realistically can we get it up and ‑ get the case up and to a point where those questions can be properly put together in that sort of time?
MR LANG: Yes, your Honour.
HIS HONOUR: Yes.
MR LANG: If that suits the Court, then that is what ought to occur. That would leave plenty of time in February should inspection of the ballot papers be allowed for that process to be gone through.
HIS HONOUR: Have you any guess, or those instructing you, any guess about how long this inspection task could be sufficiently undertaken?
MR LANG: My instructions are that of the reserve ballot papers – of the 942 reserve ballot papers, only 416 are relevant to the question of the crucial exclusion point.
HIS HONOUR: The 50th exclusion point.
MR LANG: Those are my instructions. My client’s scrutineers have I think something like 500 pages of detailed notes on the reserved ballot papers. Unfortunately, because the ballot papers at this stage are not individually numbered we cannot say to which ballot papers those notes directly attach ‑ ‑ ‑
HIS HONOUR: Obviously.
MR LANG: ‑ ‑ ‑ and Mr Wang’s scrutineers are in the same position, your Honour.
HIS HONOUR: Yes.
MR LANG: I appeared in Mitchell v Bailey and it took us two days to go through the reserve ballot papers of which ‑ ‑ ‑
HIS HONOUR: How many were ‑ ‑ ‑
MR LANG: There were 640, I think, your Honour, or around that figure – around 600.
HIS HONOUR: Right.
MR LANG: Two full days. It could have taken longer. Your Honour has already indicated that you would – if there is to be inspection that would be done by all the parties together.
HIS HONOUR: It would have to be.
MR LANG: May I say – I do need to submit, your Honour, that there are some practical difficulties with doing that. To adequately scrutinise a ballot paper for the purpose of making useful submissions to the Court when you have potentially six parties present will be very difficult, and unless there is some ‑ ‑ ‑
HIS HONOUR: Well, I take it Bailey was a two‑horse race, was it, relevantly?
MR LANG: It was. So it took in total – as I recall it, we inspected for a half day, a full day, another half day, and I think – sorry, Mr Bennett was for the other ‑ ‑ ‑
MR BENNETT: I think, your Honour, it was about the same for both sides and then we went back and had another look at the ballot papers based on what the other party had submitted about each one.
MR LANG: But my submission, your Honour, is that the, as I say, the threshold issues – the two threshold issues raised by the AEC today be resolved first, then in February, if we need to inspect, we can inspect. The question of referral can then be decided. If this Court decides not to refer the threshold questions to the Federal Court, everyone will be in a much clearer position. Put simply, your Honour, one step at a time.
HIS HONOUR: Yes.
MR LANG: Then, in relation to the pro forma orders, your Honour, that would mean that orders 1, 2, 3 with amendment, 4 would be made and then the orders in 8 through to 12.
HIS HONOUR: Orders 8 to 12 directed to – separate question.
MR LANG: That is right, your Honour. Your Honour, in relation to those two threshold questions, as I have indicated we do not see that being a very lengthy debate. There are authorities - the AEC has already referred to
some of them. There are others that we wish to refer to but they are two quite discrete questions.
HIS HONOUR: How long would your estimate be of the time needed for argument of those two questions which you identify as the necessary preliminaries?
MR LANG: I would have thought that if there were proper exchange of submissions, one day would be sufficient.
HIS HONOUR: A day and a half, perhaps.
MR LANG: Perhaps a day and a half for caution, your Honour. Unless there is something further I can assist, those are my submissions.
HIS HONOUR: Yes, thank you, Mr Lang. Mr Thomson.
MR THOMSON: May it please the Court. Can I commence by saying that we are perfectly content to file a document which deals with the matters that we would admit or dispute. Can I make a submission about the proposed questions identified in the AEC submissions? Question 3 is framed in terms of a standard of proof and it asks the Court to make a decision about a standard of proof which will then enable that standard of proof to be applied for the way in which the particular questions are resolved. The actual terms of the section are not expressed in terms of a standard of proof at all. They are expressed in terms of a state of satisfaction that the Court has to reach.
That has to be taken in conjunction, also, with section 364 which excludes the rules of evidence. The reason I raise that is because it may be that there is no standard of proof that can be pronounced in a particular or specific way. It may be that whatever court is exercising the power contained in section 362(3) needs simply to be satisfied. That actually has an implication for the order of the relevant issues, that is to say whether you can easily hive off the legal questions before determining the factual issues. The factual issues seem logically to come first if there is no relevant standard of proof to be applied but the Court exercising the power in section 362(3) simply has to have a state of satisfaction.
HIS HONOUR: Leaving aside description of the effect of 362(3) as a standard of proof, is there room for debate about whether the words “satisfied that the result of the election was likely to be affected” should be read as, on the one hand, is satisfied that there is a real chance that the result of the election was affected or, perhaps, on the other hand, is satisfied that it is more probable than not that the result of the election was affected. There may be a third, fourth, even fifth variance on that but it occurs to me that what I have read suggests at least the possibility of debate framed in terms of real chance versus balance of probabilities with perhaps some other variance on the theme thrown in just to keep life exciting.
MR THOMSON: Yes, that is precisely right. There is exactly room for debate on that issue. The real chance formulation seems to pick up the way in which it has been formulated in respect of likely to mislead or deceive in relation to the old section 52 of the Trade Practices Act. It is not necessarily evident that that should govern the test for section 362.
HIS HONOUR: Section 362(3) must no doubt be read (a) as a whole, and (b) in the context of the Act as a whole, and I express no view about any of those issues of construction. I do notice, however, that 362(3) has two elements likely to be affected and that it is just and that I am not sure whether those are to be read as a single portmanteau expression, to be read separately and whether on either of those possibilities you then need to further subdivide the range of available meanings.
MR THOMSON: That is an area of debate as well.
HIS HONOUR: Is that an area of debate which can be presented according or by reference only to the allegations made in any of the petitions or is it a debate that can be had only after the disputed allegations in the petition have been resolved?
MR THOMSON: There is a legal area of debate about the interaction and the interpretation of section 362(3) and its foot with perhaps section 365 and that raises a question of interpretation and construction. We think that it is the case that most likely that debate might turn upon an application to the facts because sometimes the difference between a matter of construction and a matter of application of a construction merge. As a result of that, the safer course might be to determine the question of the factual issues in advance of the question of construction because it may become a matter of application of construction.
HIS HONOUR: You may be right. I do not know. It is, however, not yet immediately plain to me that the question of construction is not presented by the allegations that are made in the petition, each of the petitions, particularly your client’s petition and Mr Mead’s petition.
MR THOMSON: Your Honour, I am a respondent to the petitions.
HIS HONOUR: In the Wang and Mead petitions - I am sorry, I am getting my cast of characters wrong in my head, Mr Thomson. It is not immediately apparent to me that, at least in the Wang and Mead petitions, the allegations made do not present a question about the true construction of, immediately, 362(3) recognising, as one must, that 362(3) has to be read in light of the whole of the Act and many would say, I suspect, 365 particularly, but the whole of the Act.
Now, I raise it because if we are to go down a path of shelling out questions and if we are to go down a path of shelling out questions on the allegations made in the petitions, I simply raise for the considerations of the parties whether, what the AEC refers to as the burden of proof question, you say an inappropriate tag to put on it but that issue may not itself also usefully and productively be put in to these separate questions, but there we are. Do you have any submission about that?
MR THOMSON: I do, your Honour. If it were simply a matter of the points that are raised in the AEC’s petitions, then the matter of construction could be resolved in advance of the factual inquiry. However, because of the additional matters that are made in the Wang and Mead petitions, the factual issues will have an effect, potentially, upon the likelihood of a result being affected and also, in terms of section 365, whether an Act or error or omission did not affect the result of the election. It is because of that that the difficulty arises.
HIS HONOUR: Yes.
MR THOMSON: Can I make this other submission about the questions that are being proposed by the AEC? We think that they do not sufficiently raise the particular illegal practices that are pleaded in the petition in paragraph 44.
HIS HONOUR: Paragraph 34 of the AEC petition or ‑ ‑ ‑
MR THOMSON: Paragraph 44 of the AEC petition which is correspondingly adopted in the other petitions. These are the illegal practices that are alleged for the purposes of leading to the election being declared void and they concern the proper construction and application of a number of provisions of the Commonwealth Electoral Act, particularly sections 278(2), 279(b) and 393A(3) of the Act. If there is to be an isolation or shutting out of questions in advance of any factual inquiry those questions should address the illegal practices that are specifically the basis of the petitions.
HIS HONOUR: Why? What extra issue or matter are you referring to?
MR THOMSON: There may be matters related to the proper construction of those provisions that need to be addressed by the Court. That would be a matter that would, no doubt, be worked out.
HIS HONOUR: All things are possible, Mr Thomson, but is it not plain that a recount was directed and that a recount could not be conducted in accordance with the Act on account of the loss of 1,370 ballot papers?
MR THOMSON: We accept that.
HIS HONOUR: Do you accept that that set of circumstances taken together reveals at least one illegal practice?
MR THOMSON: No.
HIS HONOUR: Yes.
MR THOMSON: It may be of assistance ultimately then for those issues to be set out in a document of the nature that your Honour has suggested. We are happy to provide a pleaded document or something less formal to respond to the issues that are raised by the petitions.
HIS HONOUR: I just want there to be no doubt about this, Mr Thomson. You dispute, do you, that there is an illegal practice on account of the loss of the ballot papers and the inability to include them in the recount?
MR THOMSON: The way in which the illegal practice is identified is that there has been a contravention of section 278(2) and 279B.
HIS HONOUR: Is your point a pleading point or a point of substance, Mr Thomson?
MR THOMSON: We would make the submission that it is a point of substance, your Honour.
HIS HONOUR: So, as a matter of substance, is there a dispute from your side that there is an illegal practice?
MR THOMSON: Yes.
HIS HONOUR: Very well. Go on.
MR THOMSON: In terms of section 278 – the focus of 279B:
At the time and place fixed for the re‑count and in the presence of any scrutineers who attend and of a person appointed or engaged under the Public Service Act 1999, the DRO –
that is the Divisional Return Officer –
shall open every sealed parcel of ballot papers to be re‑counted and count the votes in the parcel.
That is a matter asserted as an obligation in the Act which relates to the Divisional Returning Officer. The legal practice pleaded is one that relates to the Australian Electoral Officer in paragraph 44A. There is also perhaps a question of construction in respect of paragraph 44B of the petition because there is an allegation of a failure by the Divisional Returning Officer to maintain safe custody. There is a question whether that is an absolute obligation.
HIS HONOUR: Go on.
MR THOMSON: Those are matters of construction of the particular thesis of legislation that are relied upon for the illegal practices.
HIS HONOUR: Yes.
MR THOMSON: So our point is that if there is to be an isolation of questions in advance, they should be questions isolated by reference to the particular illegal practices that have been alleged by the Commonwealth and which have been adopted by the other petitioners.
HIS HONOUR: Yes.
MR THOMSON: I am not sure if there is anything more I need to say as to the nature of the questions.
HIS HONOUR: Yes, is there anything further you wish to say?
MR THOMSON: In respect of the orders, the pro forma orders, we are content with the pro forma orders that are proposed. There is obviously a question as to the timing issues and your Honour will resolve those one way or the other. We have made our submissions about the timing issue.
HIS HONOUR: Yes, Mr Thomson. Yes, Mr Merkel.
MR MERKEL: If your Honour pleases, we support the position of the Electoral Commission. With respect to our learned friends who seek to take a different course, we would say two things. Firstly, any referral to the Federal Court is premature and there is a risk, particularly in the present context, that any decision of the Federal Court would be subject to review under section 75(v), so the finality that everyone is seeking may be elusive in respect of any reference to the Federal Court.
Secondly, your Honour, we do not understand the logic of any of the submissions that suggest there need to be fact‑finding in respect of the votes raised in the Mead and Wang petitions. The questions raised by the Electoral Commission are questions of law that logically should be determined prior to the fact‑finding and any determination as to the consequences of that fact‑finding.
We ourselves, your Honour, would make three points about the position of the Electoral Commission. The first is, your Honour, we say it should be resolved by a special case where the parties agree on the undisputed facts and raise questions for determination by the Court. We do say, with respect, that it is appropriate for a Full Court to resolve these questions because, as is apparent from the Electoral Commission’s submissions, these questions will affect not only just this election but all elections and the operation of the Electoral Act in its most fundamental way.
Questions such as the standard of proof, the meaning of the word “likely”, whether an election is affected, the interrelationship between 362 and 365 have not really been considered by this Court in the context of the current Act and are fairly well unburdened by any authority. We say that the issues in this case raise all of those questions.
There are two additional questions which we would seek to have raised in a special case, your Honour. The first is the question of the standard of review by the court of the decision of the electoral officer. We say that that was considered by Justice Tracey but not in the context of the changes to the Act that have been made since the early 1900s. It may be reviewed de novo. We say it may be a judicial review was it open, or it may be limited to a 75(v) standard of review, but again, that is a question that can be determined on the agreed facts and we say should be because that is a fundamental issue for the Court of Disputed Returns.
The other matter we would wish to raise, your Honour, we have adverted to in our submissions. It appears that the sixth respondent did not seek reservation of votes on the recount and, purely by way of response to the Mead and Wang petitions which seek to point to votes which, if determined contrary to the determination that has taken place, will favour their position at the 50th counting point, the sixth respondent would seek to raise in respect of unreserved ballots the same point.
But we accept, as we say in our submissions, that whether unreserved ballots can be looked at purely in the context of a response to a claim in reliance on 362 or 365, whether the court is precluded in all circumstances from looking at unreserved ballots, we say that again is a question which we would seek to have raised. We accept that it is not
presently raised but we would be filing a petition, your Honour, seeking to raise that as an alternative so that if the sixth respondent’s election is set aside, we would be seeking in the alternative the election be declared void and we would then seek in support of that to respond to the Mead and Wang allegations concerning the reserved votes.
So, again we say, those issues logically should be determined ahead of any issues of fact. So we, with respect, support what the Electoral Commission has put but would submit that it is appropriate for the parties to seek to agree on a special case and have the matter come back before your Honour at some appropriate time next week. The special case also has significance because of the provisions concerning finality, your Honour, in 368, and if the matter heard was interlocutory or was not final, there might be a question about what all decisions of the court shall be final mean in 368.
We would anticipate that on a special case whatever the determination is by the Full Court will be a final determination of all the criteria that would apply and if able to resolve the petitions finally would resolve the matter. But if the Full Court determined what the criteria are and found that the reserved or unreserved votes were to be looked at, at least at that point the criteria to be applied by a court resolving those outstanding issues would be clear and that is, we say, with respect, the most efficient, most expeditious and most effective way of determining the issues in this matter.
So we would urge that course upon your Honour, and it would overcome your Honour’s concern that if this goes to this Court, whether before a single Judge or a Full Court, there would be absolutely no doubt about the factual position being put forward by each of the parties. We have not seen anything raised by any of the parties which would suggest there is any dispute about the facts. They are either documentary or they are really not disputed by anybody, and we say that the only dispute would be as to the consequences that follow from the reserved votes or the unreserved votes and they must be determined if they are able to be looked at on the face of the documents themselves. So that is the course that we would urge upon your Honour.
HIS HONOUR: Yes, thank you. Mr Barlow.
MR BARLOW: Your Honour, it is our submission that whether the matter is retained in this Court or remitted to the Federal Court either wholly or in part, the factual issue should be heard and determined either first or in conjunction with the hearing of the legal issues. In other words, the parties should be given leave and exercise their rights under that leave to inspect the ballot papers in order to identify the precise ballot papers that are the subject of the challenges to the Electoral Office’s decisions.
Then either the Court determines those challenges first and then legal issues are dealt with thereafter, or both factual and legal issues are dealt with together, which would necessitate of course them being determined only by a single Judge rather than being referred to the Full Court. Your Honour, we urge that course particularly because what is being urged upon the Court by our learned friends for the Commission and for Mr Ludlam is a course that is fraught with danger, namely the reservation of a separate issue to be tried, even though it is purportedly a legal issue, before the determination of the factual issues.
All of us, in our respectful submission, know that that often leads to a course where during the hearing or prior to the hearing of the separate issue, it becomes apparent that that can only be determined upon the basis of disputed facts or facts that are in dispute.
HIS HONOUR: Do you point to any specific fear rather than the general fears of the kind you advert to, that is to say, taking the facts as alleged in each petition, why do not the questions of law, at least questions 1 and 2, query other questions, arise? Why are they incapable of being answered without resort to further or additional facts?
MR BARLOW: Your Honour, I cannot point to any particular facts that might arise that would make the determination of those questions separately and earlier a problem. I only advert to the possibility that that might happen, and I do so in this context also, your Honour, or I urge the course that we do in this context, that, in our submission, the fastest course to get this matter determined finally, one way or the other, would be to have all issues, factual and legal, heard and determined together.
The reason for that is if one were to proceed with the course of determining questions 1 and 2 first and perhaps a third question that seems to be hidden in question 2, whether the Court could on a review inspect the ballot papers, your Honour, if that were to be heard and determined first, and it were found in favour of the Commission, yes, that would determine the three petitions. But if it were not determined in favour of the Commission, and there is a good risk that that would not be the case – one has to accept that, I submit – then at some time in February there might be directions for inspection of documents and submissions on those, submissions on the other legal issues that arise, and then one might not be able to get a hearing on those issues because of the time it would take to deal with those until sometime in March, which would certainly be likely to be beyond the timeframe in which the Commission is seeking to have these matters determined.
If the factual issues are dealt with, at least the parties are able to deal with the factual issues beforehand and then either this Court by single judge determines the factual issues and then it is remitted to the Full Court for hearing of the legal issues arising, or a single Justice of this Court were to determine all issues in one hearing, it is likely that that could be done within the timeframe that is most preferable. Relevant to that of course, your Honour, is your Honour’s question ‑ ‑ ‑
HIS HONOUR: That is you say, do you, that inspection, argument and resolution of argument about how many votes could take place within the time?
MR BARLOW: Yes.
HIS HONOUR: How many votes?
MR BARLOW: Well, at present about 250 votes are identified but in each petition of the Wang and Mead petitions it says ‑ ‑ ‑
HIS HONOUR: 250?
MR BARLOW: There are 180 in the other – in the Mead petition roughly, 177, and about 84 in the Wang petition.
HIS HONOUR: You are not suggesting they are cumulative surely, are you?
MR BARLOW: Well, your Honour, no. They will not be entirely cumulative. There may be more than those numbers because in each petition it says “at least” this number have these problems. There will be some crossover but we have tried in answer to the questions that were put to us by the Registry yesterday, your Honour, to determine the extent of the crossover, but the categories of challenge are worded so differently that the best we can say, your Honour, at this stage from our preliminary analysis is that between 20 and 50 are likely to be the same – same challenge, but there may be more.
Now, in terms of inspection, your Honour, we would submit that the most efficient course is in fact for separate inspections to take place. We estimate that each inspection – and that would by each of the two petitioners, Wang and Mead, each inspection would take two to three days after the Registry has numbered all the documents and numbering itself would probably take a day or two, there being some 942 ballot papers reserved.
Now, inspecting those separately might take an average of two to four minutes per ballot paper. If everyone were to inspect them together, we expect that that would take at least 10 minutes per ballot paper, which is 20 days on an eight hour day. So we would submit that all of the ballot papers could be relevantly inspected within about a week and a half by the two petitioners who are seeking to have them challenged. They could then produce their lists, the AEC has suggested by 14 January, we have suggested by I think 31 January, but I would respectfully submit that somewhere in between is probably the right time, probably around the 21st or 24th.
Then those parties who wished to, most likely the two successful senators‑elect, might wish to inspect them to argue whether or not they were properly or improperly declared formal or informal. That could all be undertaken then, your Honour, probably by early February at the latest. Then, in the light of those, we know what the factual issues are and the legal issues can be, in the meantime even, prepared for a – in a simple form which will raise the questions for the Court’s determination. That could then be heard and determined some time in – well, heard sometime, one might think, in February, subject to the Court’s convenience, and determined as soon as the Court could determine it thereafter.
We have mentioned, your Honour, of course, in our written submission that if the election were declared void so a fresh election would have to occur, which of course is not necessarily what would happen, and if that could not mean that the new election would take place in time for the senators to commence sitting on 1 July, nevertheless the Senate would still be properly constituted. It might not be the most desirable course, but it could be done and they might sit a week or a month later.
HIS HONOUR: You cannot dismiss it so readily, can you, Mr Barlow?
MR BARLOW: I beg your pardon, your Honour?
HIS HONOUR: You cannot dismiss that possibility so readily.
MR BARLOW: I am not intending to dismiss it readily, your Honour. I am simply saying – sorry, the possibility that it is not properly constituted?
HIS HONOUR: No, the possibility that the Senate after 1 July would be incomplete. That is a result that is to be avoided if possible, surely.
MR BARLOW: We certainly submit that, your Honour, and, in our submission, the best way to try to avoid that possibility is to address these petitions in the way that we urge on the Court. Now, we do not necessarily urge that the matter remain in this Court or go to the Federal Court, but from a practical perspective the best way of determining the matter in time for such an election to take place if necessary would, in our respectful submission, be for it to be heard and determined wholly in this Court but we would submit in one hearing after all the factual issues – all the contentions in respect of the factual issues have been properly identified.
In terms of the pro forma directions then, your Honour, we submit that they are appropriate. All orders 1 to 7 are appropriate, although we submit in respect of order 6 that an additional paragraph between paragraphs 3 and 4 would be appropriate to the effect of that stated in paragraph 17 of our written outline. Paragraph 17(e)(4), namely that after numbering, the ballot papers be available for inspection separately by the legal representatives for each party between 9.00 am and 5.00 pm on each day when the Registry is open. Then (5) follows that within those hours the legal representative would make appropriate arrangements with the Registry for their inspection. It really would probably be the legal representatives most likely solely for Messrs Mead and Wang, at that stage at least. Then in terms of order 7, we would submit that it should be probably:
Any [petitioner] who wishes to contend that the Court can or should reach a different conclusion . . . file and serve on each other party by [24] January 2014 –
those lists. Then there might be directions for further submissions which would include perhaps submissions on the part of the successful senators‑elect as to why the challenges should not succeed, and for that purpose they would be entitled then to inspect the ballots. One of them – I think it is Senator‑elector Dropulich has said that he would wish to inspect those ballots that are ultimately the subject of challenge, so not the whole 943 or 42, but only those that are the subject of challenge. That too, your Honour, would be more efficient than all parties inspecting all 943 together, because some parties would only inspect a considerably – a likely considerably fewer number of ballot papers.
HIS HONOUR: Is it a necessary step in your petition to obtain the relief which you primarily seek that the Court receive and act upon secondary evidence of the 1,370 missing ballots?
MR BARLOW: Not for the relief we primarily seek, your Honour, which is that the first count be treated as the result of the election.
HIS HONOUR: Despite the fact that a recount was ordered?
MR BARLOW: Yes.
HIS HONOUR: Leave aside that possibility for the moment.
MR BARLOW: Yes. The 1,370 ballot papers – our contention, your Honour, is that whether or not one counts those, when one takes into account the challenges to the ballots if they were successful, then Mr Wang and Senator Pratt would be appropriately declared the successful ‑ ‑ ‑
HIS HONOUR: How could one know that without taking to account secondary evidence of the 1,370 missing ballots, given the numbers that you challenge?
MR BARLOW: Yes. Well, one might take it into account, your Honour, in this way without the – we would contend, firstly, that in fact one should take into account the 1,370.
HIS HONOUR: My question is: is it a necessary step to success of this aspect of your petition that the Court can and should act upon secondary evidence of the 1,370 missing ballots?
MR BARLOW: It is not absolutely necessary, your Honour, because the question is ‑ ‑ ‑
HIS HONOUR: Why not, given the numbers? Why not?
MR BARLOW: Because one looks at the likelihood, your Honour, of there being any other errors that would affect the result. One does not look simply at 1,370 ballots on the one hand lost and 200 ballots challenged.
HIS HONOUR: 180, I think.
MR BARLOW: I beg your pardon, 180.
HIS HONOUR: No, well, if we are going to play numbers we have to be right with the numbers we use.
MR BARLOW: If your Honour pleases.
HIS HONOUR: 180 – yes.
MR BARLOW: From Mr Wang’s perspective 84 ballots challenged at present.
HIS HONOUR: Yes.
MR BARLOW: One does not just simply compare 84 with 1,370. The question is, how many of those – what is the distribution of preferences of those ballots and what was the distribution of preferences.
HIS HONOUR: How can one determine the consequence that follows from that consideration without acting upon secondary evidence of the voting intention revealed in the 1,370 missing papers?
MR BARLOW: One does – well, it is hard to do so, your Honour, but we would not, with respect, categorise the evidence as secondary evidence of the voting intention of the voters, your Honour. How we would categorise it, with respect, is that this Court could in determining the result of the election, declaring the result of the election, take into account the recount of those ballots that were recounted and the original count of those ballots that were not recounted, including the below the line ballots, which no one disputes can and should and were taken into account, as a form of partial recount.
Of course, a partial recount – it was possible for the Commissioner to order a partial recount including, theoretically, that these 1,370 ballots not be recounted. He did not, and that is why there was an illegal practice because his direction was not complied with. But our submission would be that this Court could effectively take into account the records of the 1,370 ballots in determining whether or not it is likely that the loss of those ballots has affected the election outcome.
HIS HONOUR: The question of can the Court take account of what I have described as the secondary evidence of voting intentions revealed in the 1,370 missing ballots appears, at least on the face of it, to be a question of law. The question of should the Court act, if it can, upon secondary evidence of that voting intention would appear, at least possibly, to include a question of fact of a kind generally capable of description as being how good, in the sense of how reliable, is that secondary evidence. At the moment I do not think any party by its petition alleges any fact which does other than record the fact that certain information is available concerning the 1,370 missing ballots, being information – I use the term neutrally – obtained or recorded at the time of the fresh scrutiny. Is that so?
MR BARLOW: That is correct, your Honour.
HIS HONOUR: Yes.
MR BARLOW: Both the AEC’s petition and the petition filed on behalf of Mr Bullock – I beg your pardon, Mr Mead, do raise as a factual issue what is the likelihood of errors in the records of the 1,370.
HIS HONOUR: To what paragraphs are you referring?
MR BARLOW: I am referring to paragraph 50 of the Commission’s petition, your Honour.
HIS HONOUR: Yes.
MR BARLOW: Which raises the question of the differences which in the usual case emerge between a fresh scrutiny and a recount.
HIS HONOUR: Yes, I am familiar with paragraph 50. What other paragraph were you referring to?
MR BARLOW: That is the only paragraph in the Commissioner’s petition, your Honour. In the petition in P56, Mr Mead’s petition, paragraph 32(b) raises a similar if not identical issue, or 32 in its entirety really, but particularly by 32(b).
HIS HONOUR: Yes.
MR BARLOW: That is a factual issue which may go to the exercise of the Court’s discretion, if one might put it that way, as to whether or not it is just and perhaps whether or not it is likely that the loss of those ballots would have affected the result of the election.
HIS HONOUR: Yes.
MR BARLOW: Those are our submissions, if it please, your Honour.
HIS HONOUR: Yes, thank you, Mr Barlow. Mr Solicitor, how long do you expect to take in reply?
MR GLEESON: Ten minutes.
HIS HONOUR: Yes, that is how long you expect to take, yes. Yes, Mr Solicitor.
MR GLEESON: Your Honour, in the light of the discussion, we would submit it is apparent that the questions sought to be separated are bona fide and arguable and if decided one way will dispose of the need for a factual inquiry which will either be unnecessary or perhaps unavailable in law. If decided the other way, the principles will be laid down for the trial judge. That is a sufficient reason to reserve those questions.
HIS HONOUR: Now, “those questions” equals which questions?
MR GLEESON: All of the questions, it should not just be 1 and 2 because 1 and 2 would insufficiently produce the benefits that I am urging. Questions 1 and 2 will deal with one aspect of the problem but the importance of 3, perhaps taking Mr Thomson’s point, change “proof” to “satisfaction” in 3. Then 3 and 4 will deal with the question of necessity for the further inquiry as opposed to permissibility. Unless we grapple with that, 1 and 2 might only slice off half of the apple.
Then question 5 would follow. Mr Merkel’s questions which we would not oppose could become a new question 6 which is, “If the answer to question 4 is yes, then what is the answer to the following two questions?” They only arise if we are wrong on the questions that we have framed. So we would submit that the case is strong to reserve those questions.
If it were possible to do it, of the two alternatives your Honour mentioned before the Full Court in February, we understand certain difficulties that would impose, but if it were possible, given the difficulty and complexity of these issues and the importance of the precedent, and I might say we will in part be traversing various decisions at first instance of this Court back to the Full Court, so there is quite a bit to resolve, so if it were possible for the Full Court, there would be clear benefits in doing so.
The only other matter, your Honour, was the suggestion that the Court should have the two tracks moving together as outlined seemed only to cause delay and mischief. It seemed to be a notion that people would be separately inspecting ballots in the Court Registry. People could inspect them as often as they liked. It would be late January before two people had inspected them. It would be mid‑February before others had inspected them. We would submit leave that exercise for the moment and just grapple with the questions.
HIS HONOUR: What am I to do about the fact, Mr Solicitor, that if I decide that some questions, whether all of those you propose, whether all of those you propose plus Mr Merkel or only some of the available field of questions should be formulated for separate hearing whether by single Judge or Full Court, what am I to do about two practical aspects of that approach: one, identifying facts on which they proceed; two, hammering out drafting about the facts?
I am in a position where, after some reflection, I will be in a position to indicate today to the parties which general course I think is desirable but I certainly am not and I would not want to put the parties in the position where if I go down the questions path the parties are expected to come up instantly with formulated questions and the procedures about facts, or the identification facts that would accompany it. How do you say I should tackle these issues?
MR GLEESON: If your Honour were to indicate your Honour’s provisional course with the galaxy of talent assembled here in Melbourne, most of whom can keep working on this matter because of the importance it has for the country as well as for all the clients, we may be able to bring back before the Court at a convenient time tomorrow some final orders. For those who have to leave it can be done electronically, but I think many might be able to stay and their clients respectively realise this matter requires extreme attention.
HIS HONOUR: We have to get to an answer on at least these procedural questions as soon as maybe.
MR GLEESON: If your Honour gave the provisional outline, all of the counsel and solicitors here can work that up into a document by sometime tomorrow morning.
HIS HONOUR: We have leaves happening here tomorrow.
MR GLEESON: Yes.
HIS HONOUR: We have to remember there is three hours’ time difference across the Nullarbor.
MR GLEESON: Yes, so perhaps after lunch tomorrow. As to your Honour’s other question, do we need to have, as it were, a special case in all of that. The suggestion that is being raised of reserving the questions on the allegations in the petitions, we submit that works. That works with ‑ ‑ ‑
HIS HONOUR: Is it a necessary condition for that to work that the parties have put on, in very short order, a statement of what facts are agreed – or not disputed and what facts are disputed?
MR GLEESON: Yes.
HIS HONOUR: Is there any reason why the parties could not be required to do that by close of business today?
MR GLEESON: The parties should be required to do that. People are here, they can attend to that task as soon as your Honour adjourns.
HIS HONOUR: What I am minded to do, Mr Solicitor, it is now 10 to 2 Melbourne time, is to simply adjourn and come back not before 2.15 pm Melbourne time and indicate then the course that I propose to take. In the interval, I would be grateful if counsel could give attention to at least the
formal undisputed orders that have to be made. So, for example, we have to grant some leaves to amend, I think.
We have to, or do I, have to direct gazettal the amended petitions? If I am going down a path of either trial of separate questions or reference into a Full Court, do the parties have to give notice of trial and gazette that? I am sure there are other issues of that basic practical nature that may need attention, but I would be indeed grateful if counsel could use the time to consider it.
MR GLEESON: If your Honour pleases.
HIS HONOUR: Is there anything else that counsel desires to raise? Then, as I say, I will consider the course I will take. I will resume sitting not before 2.15 pm Melbourne time. The link will stay up, Mr Thomson. I would be grateful if counsel were available in Court no later than 2.15 pm. Adjourn the Court.
AT 1.48 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.23 PM:
HIS HONOUR: I am minded to require the parties to the petitions to file and serve not later than a time to be fixed tomorrow morning - my present inclination is 9.00 am tomorrow - a document setting out drafts of questions of law which would address the following issues: first, the issues raised in paragraphs 8.1 and 8.2 of the supplementary outline of submissions filed by the Electoral Commission - for convenience, those issues might be referred to as the section 365 issues - as well also as a question of law which takes as its base the fourth of the questions identified in the AEC submission but subject to the following amendments: first, the question should be freestanding and not dependent upon the earlier questions or their answers; and, second, the question should, I think, fall into three parts.
As presently drafted, paragraph 4 of the questions proposed by the AEC asks whether any further factual inquiry regarding the manner in which the Australian Electoral Officer dealt with the ballot papers reserved for decision pursuant to section 281 is necessary to dispose of the petitions. As at present advised, I would propose that the question - delete reference to “factual” – is any further inquiry regarding the manner in which the AEO dealt with the ballot papers reserved for decision pursuant to section 281 (a) permitted under any and what provision of the Act; (b) relevant to the disposition of any and which of the petitions before the Court, and (c) necessary to the disposition of any and which of the petitions before the Court?
At the risk of giving undue prominence to a point which may or may not have any particular significance in this matter, I raise part (a), namely, whether inquiry is permitted under any and what provision of the Act to require consideration of matters including but, by no means, limited to whether section 281(3) of the Act does any more than permit regard to ballot papers reserved for the decision of the Australian Electoral Officer.
In addition to the questions which I have indicated, it would be necessary for the parties to file and serve a statement of facts agreed or assumed for the purposes of determination of those questions if appropriate by reference to and incorporation of matters alleged in one or other of the petitions.
I would propose to require the parties to file and serve such a document in the hope that the parties might or, at least, some of the parties might be able to agree upon some or all of the elements I have indicated. It may be that there are aspects of the questions on which there can be no agreement, in which case each party should formulate its preferred form of question.
As is implicit in what I have said, I do not propose that there should immediately be any further or extended argument about the desirability of formulating questions of the kind I have mentioned.
I would propose on consideration of the questions that I would fix a day either in the week before or the week after Australia Day as the day on which the trial of those questions would be fixed before a single Justice. I would further propose that the reservation of questions or identification of questions of the kind that I have mentioned be made expressly subject to further or other order thus leaving it open, at least as a possibility, that there would be reservation of the questions for a Full Court rather than trial by a single Justice in light of the arguments that have been developed in writing and filed before the date fixed for trial of those separate issues.
It will be noted that I have not included within the questions that I propose should be formulated, first, the question numbered 3 in the AEC submission. That is, I am not presently minded to reserve as a separate question one which would tender the question of construction of section 362(3) which has been the subject of some very limited debate today. Nor have I proposed that I should reserve as separate questions any question about what has been referred to in argument as the standard of review of a decision of the Australian Electoral Officer in respect of ballot papers which were reserved for the decision of the AEO in the course of a recount. Nor have I proposed to reserve for separate argument any question about whether the sixth respondent to the AEC petition can or cannot seek to argue or refer to ballot papers which were not reserved for consideration by the AEO in the course of the recount.
Of course, the fact that I do not propose to reserve those matters as separate questions cannot be taken as any indication of any conclusion about those issues. They are, however, issues of a kind which, at least, as at present advised, it seems to me, are not conveniently and appropriately dealt with in an initial separate trial of issues.
Implicit in what I have said so far is a proposition that should be addressed and made express. I am not minded to make orders that would permit or require the undertaking of factual inquiries of the kinds proposed by the petitioners in either the Wang petition or the Mead petition. Whether inquiries of that kind can or should be undertaken, indeed, if they can be, what inquiries may be made are matters which, it seems to me, are at least affected by, perhaps even determined by, the issues which I have attempted to indicate as forming the basis of the third of the proposed preliminary questions.
I am, of course, conscious of the need to bring these petitions to their final conclusion as soon as reasonably practicable. I am, therefore, conscious of the fact that two of the petitioners and, perhaps, if Mr Merkel’s client were later to issue some fresh petition, a third petitioner would seek to agitate questions of fact. I have given anxious consideration to whether the preparation for any necessary factual dispute and resolution should not begin at once, but the nature of the task and the diversion of effort that will be required to undertake the task is of a kind which makes me conclude that, on balance, it is better that the preliminary issues which I have attempted to identify should first be determined.
Given that I have in mind their trial in late January, either on 22, 23, 24 January or perhaps between 28 and 31 January, I am of the view that the most efficient use of the Court’s time and, more relevantly, the parties’ time and their advisers’ time will be if focus is placed upon the legal issues which I have identified. Subject to anything that counsel may say to the contrary, I am not minded to make any orders beyond adjourning the matter today, but rather to leave counsel the opportunity to formulate orders which will take account of a number of necessary steps such, for example, as the grant of leave to various petitioners to make, comparatively speaking, formal amendments to their petitions, any necessary order for gazettal, et cetera, but also to give counsel an opportunity to attempt to hammer out
as best they may some agreement about the forms of question which they would propose to tender for my consideration.
Subject to anything that counsel may say, I would propose that the summonses for directions stand over until tomorrow at 12 noon. This courtroom will be being used for applications. We will have to use the good offices of the Federal Court to obtain the necessary video link to Perth in some other courtroom in this building but I anticipate no difficulty in that.
Now, do counsel seek to be heard on the formal matters that I have raised, that is, should I make any order today? Second, should I stand it over until 12 noon tomorrow or other issues that I should have but have failed thus far to address? Mr Barlow.
MR BARLOW: Your Honour, would your Honour be prepared also to direct - I am instructed a direction is necessary, that should it become necessary, a video link to Brisbane could be ‑ ‑ ‑
HIS HONOUR: I will have one video link not two, I am sorry. Split video links prove, at least at the moment, to be either unstable or imperfect. I am sorry for the inconvenience this causes but I will have only the one video link. If I suggest that you and Mr Thomson sort that out, that is probably an invitation to alternative dispute resolution of a kind which this Court should not entertain.
MR BARLOW: Thank you, your Honour. I have no other ‑ ‑ ‑
HIS HONOUR: Mr Solicitor. May I say this to all counsel and their solicitors, if you need this courtroom to sit down and hammer this out or you need the conference room or the taxing room to sit down and hammer this out this afternoon, ask and we will do whatever can be done to accommodate you. I think we can probably only offer you three separate spaces so that if you needed break‑out rooms you – four, I suppose, you would have the public space but basically we have only the three spaces - the courtroom, the witness or conference room which is pretty tiny and there is the taxing room where, yes, we could probably accommodate some of you but might I suggest that there would be advantage in the old jury rule being applied and you being locked up without - what was it – fire, water and food until you came to an agreed verdict. That is perhaps a little harsh. Do I need to do anything about costs like reserve them or anything of that kind? No. Then, I will adjourn until 12 noon tomorrow. I will be grateful if you could, late in the day, discover in which courtroom we will be sitting.
AT 2.46 PM THE MATTER WAS CONCLUDED
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