Webster v Deahm

[1993] HCATrans 204

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S71 of 1993

B e t w e e n -

ALASDAIR PAINE WEBSTER

Petitioner

and

MAGGIE DEAHM (also known as

MARGARET JOAN DEAHM)

First Respondent

and

BRIAN COX, THE ELECTORAL

COMMISSIONER

Second Respondent

Webster 18 26/7/93

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 JULY 1993, AT 2.01 PM

(Continued from 20/7/93)

Copyright in the High Court of Australia

MR J. THERRY-WARD:  May it please Your Honour, in this

matter I appear for the petitioner. (instructed by

Brien Cornwell)

MR J. McCARTHY, QC: If it please Your Honour, I appear for

the first respondent. (instructed by McClellands)

MR J. SACKAR, QC: If the Court pleases, I now appear for

the Electoral Commission. (instructed by the

Australian Government Solicitor)

HER HONOUR:	Thank you.
MR THERRY-WARD:	Your Honour, just before my learned friend

commences, can I just indicate that this matter

will not now be proceeding in respect of a claim to

dispute the general election; it will only be

proceeding in respect of the seat of Macquarie and
the other matter is that I had prepared some

submissions in writing; we tried to get them to

Your Honour between 1.00pm and 2.00pm; we were

unsuccessful.	Can I hand those up to Your Honour
now please?

HER HONOUR:  Yes. Thank you.

MR THERRY-WARD:  My learned friend, Mr McCarthy, does have a

copy of them.

HER HONOUR:	And Mr Sackar as well?
MR THERRY-WARD:	No, he has not.

HER HONOUR: Before we go to these, shall I go then -

Mr Sackar, there was, I think, a notice of motion

from the Electoral Commissioner with respect to

that.

MR SACKAR:  Yes.

HER HONOUR: Well, the appropriate course would be to make

some order on that motion, I think, would there

not?

MR SACKAR: Yes, there is one from Mr McCarthy as well.

MR McCARTHY:  There are two notices of motion before

Your Honour in substantially similar terms.

HER HONOUR: Yes, thank you. Well, what order should be

made with respect to what has just been said? It

may be the easiest way of dealing with that issue.

MR McCARTHY:  Your Honour, if Your Honour went to my

friend's petition in the matter, the relevant

paragraphs would be found at page 16 paragraph (c),

and prayers, on page 17, prayer No 4 and on page 18

Webster 19 26/7/93

prayer No 6 and page 18 prayer No 10, that at the
petitioner's motion, there be no further
proceedings had in relation to those parts of the

petition. That would be my proposal, Your Honour,
but it may be, since it is my learned friend's

petition, he - - -

HER HONOUR:	Yes.
MR McCARTHY:	I may have missed one, Your Honour, on page 18, prayer No 8.
HER HONOUR:	Yes, thank you.
MR THERRY-WARD:	Yes, Your Honour, I agree that the prayers

No 4, 6, 8 and 10, will not, in fact be proceeded

with.

HER HONOUR:	Yes, thank you. And paragraph (c) on page 16 may similarly be dealt with, so far as it -
MR THERRY-WARD:	So far as the reference is made to

the - - -

HER HONOUR:	To Australia-wide.
MR THERRY-WARD:	- - - general election, yes.

HER HONOUR: Yes. Very well. Well, Mr Sackar, is it

sufficient if I order that there be no further

proceedings with respect to prayers 4, 6, 8 and 10

of the petition?

MR SACKAR:	Yes, Your Honour.
HER HONOUR:	And so far as it concerns the general election,

paragraph (c) on page 16.

MR SACKAR:	Yes.
HER HONOUR:	I will order accordingly.

MR SACKAR:  Thank you.

HER HONOUR:  Yes. Now we have your substantially identical

notices of motion.

MR McCARTHY:  We do, Your Honour, and it is proposed that

the first respondent's submissions be put to you

first.

HER HONOUR:  Yes. These are your submissions.

MR McCARTHY:	Yes, but, Your Honour, in relation to those matters of the motion, there are some affidavits
that the second respondent has filed in these
proceedings which I think my friend, Mr Sackar,

Webster 20 26/7/93

wants read on to the record, and I would think,

Your Honour, that this is the appropriate time

before submissions are taken. They concern certain

correspondence and the result of the election.

HER HONOUR:	Yes, thank you.
MR SACKAR:	If Your Honour pleases, Your Honour may have

already in the file an affidavit dated

23 July 1993, the deponent of which is

Lynne Elizabeth Glasson.

HER HONOUR:  Yes, I have that.

MR SACKAR:  We would rely upon that affidavit. I will not

take Your Honour through it, but the affidavit

contains two letters; one requesting some

particulars of the petition, and a reply which may

or may not need to be looked at at some later

point.

HER HONOUR:	Is that objected to in any respect?
MR THERRY-WARD:	No, Your Honour.
HER HONOUR:	No, well that may be taken as read, Mr Sackar.
MR SACKAR:	The second and last affidavit is an affidavit of Peta Dawson, which I do not believe Your Honour
has.  May I seek Your Honour's leave to file that
in Court.  My learned friends have copies of it.
HER HONOUR:	I have one sworn 23 July 1993, seven

paragraphs?

MR SACKAR:  Yes. Your Honour, apart from some formal

matters, the very last annexure to that affidavit
sets out the numbers, as it were, and the result of

the election.

HER HONOUR: Yes.

MR SACKAR:	Your Honour, that is the evidence - - -
HER HONOUR:	That is not objected to in any way?
MR THERRY-WARD:	I have no objection, no. Thank you,

Your Honour.

HER HONOUR:	Well that may be taken as read also.
MR SACKAR:	Thank you, Your Honour.
HER HONOUR:	Yes.
MR McCARTHY:	Your Honour, the matters before you today,

pursuant to Your Honour's directions last Tuesday,

Webster 21 26/7/93

at which Your Honour indicated, firstly, that

argument would be taken on whether the petition

could be heard in relation to the whole of

Australia, and that matter has now been clarified, and secondly, after it had been indicated to you from myself for the first respondent, and Ms

Glasson for the second respondent, that objection were taken to paragraphs within the petition as not

complying with the Commonwealth Electoral Act, you

invited the respondents to file notices of motion

in which those paragraphs that were challenged were

formally set out so that the matter could be dealt

with commencing today.

Your Honour, that has been complied with.

well, Your Honour, in order to hopefully streamline
the issues, I have prepared a set of written
submissions concerning the petition and various

As

parts of that petition, which were delivered to the

Registry of the Court this morning.	Does
Your Honour have a copy?

HER HONOUR:	Yes, I have those.
MR McCARTHY:	Thank you, Your Honour.
HER HONOUR:	Have you provided copies.
MR McCARTHY:	I have provided copies.
MR THERRY-WARD:	I have a copy.

MR McCARTHY: Yes, and similarly with Mr Sackar.

HER HONOUR:  No, I have not got Mr Sackar's.

MR McCARTHY:  No, I have provided a copy to Mr Sackar. In

relation to the matters that are raised there, I

would also hand up to Your Honour, in terms of

those, to be associated with those submissions, the explanatory memoranda and the second reading speech

in relation to the Electoral and Referendum

Amendment Bill 1989; I seek leave to hand that,

just to be put with the papers, as I will make

reference to that, and I provide a copy of that to

both of my learned friends, and I will also be

making reference, Your Honour, to a series of cases

which have been notified to the Court on a list of

authorities.

Might I take Your Honour to the submissions

that have been prepared. Your Honour, the first

part of the submissions, under the heading
"General" are directed to the proposition that the

Electoral Act in section 355, in its two sections,

that is 355(a) and now 355(aa), require a degree of

specificity within the material to be provided

Webster 22 26/7/93

within an electoral petition; that if that is seen

not to be present by the Court within the petition,

may have the result that the petition is found not

to comply with section 355 of the Act, and pursuant

to section 358 of the Act, it provides that there

is no further proceedings to be taken on such

petition, or part of the petition, to which such a

finding would apply.

A similar provision to section 355(a) has been

a part of the Commonwealth Electoral Act since its

original enactment in 1902 and there have been

various decisions concerning the detail of the

petition and amendments on the petition between

1903 down to 1988, and during that period it was,

in our submission, established that two matters,

firstly, that facts must be pleaded of such a
nature that are more than just assertions of
sections of the Act, and assertions in general

terms concerning the conduct of the election, but

must be specific facts that give rise to a

combination of circumstances that may invalidate

the election.

In 1989 there was a further amendment of this

section through section 355(aa). That section

provided, as the wording now reads, that:

subject to subsection 358(2) -

and I will return to that, the facts that are to be

pleaded within a petition must be with -

sufficient particularity to identify the

specific matter or matters on which the

petitioner relies as justifying the grant of relief. ·

Your Honour, that was introduced into the Act

following litigation, as far as one can determine,

in the matters of Nile v Wood in the High Court in

1988. The thrust of our submission, Your Honour,

is that while that section was introduced for the

purpose of expanding the grounds on which the Court

considers detail in the petition, it was certainly

not the intention of the Parliament, as may be

found through the explanatory memorandum and the

second reading speech of the minister, that there

would be some liberalization of the details that

are required within the petition but, in actual

fact, they are a direction by Parliament that

matters coming before the Court of Disputed

Returns, if anything, must be met with even greater

specificity in terms of the facts and the details

set out.

Webster 23 26/7/93

In other words, what might be called in other contexts "the cause of action" in its essential

details as either justifying relief under (aa), or

invalidating the election under section 355(a),

must be so specified. I draw Your Honour's

attention, in relation to the explanatory

memorandum with the Bill, to page 23, at point 5,

where clause 111 is in these terms:

This clause amends section 355 of the the validity of an election to be more

specific in their allegations.

And then, in clause 113:

No proceedings unless requirements complied

with

This clause amends section 358 of the

Principal Act to enable the Court to grant

relief -

and then the grounds on which that can be granted.

Those grounds relate to 355(aa)j Your Honour. It

remains the case that it is incurabie if the

petition does not comply with section 355(a).

Your Honour, I just briefly refer you to the

speech of the minister in the matter, which is
attached thereto, on the second page, Your Honour.

In the second column at point 6 there is a

paragraph which begins with the words "concern",

and I will read that:

Concern was also expressed about the

possibility of petitions alleging a range of standard irregularities in general terms and relying on the court procedures to provide the

evidence necessary to substantiate them. This

Bill requires petitions to the Court of

Disputed Returns to be more specific in their

allegations disputing the result of an

election or referendum.

Now, Your Honour, we say that in relation to a

whole series of sections of this petition, in fact

the petition in toto, that there is a failure to

comply with section 355(a) and 355(aa). I take

Your Honour now to some of the detail of those

matters as set out in the written submissions.

I might take Your Honour, please, to page 3 of these submissions. Your Honour, these are dealt

with in what I thought was the probable order of

magnitude, in terms of the effect or alleged

effect, that was to be had upon the election. That

Webster 26/7/93

is the centrality of these issues to the petition,

rather than what the order is necessarily in the

petition itself. Your Honour, the essential matter

that my friend's petition raises is this: the

challenges that are at page 10, (c), (d), (a), (b),

(c), (d), (e); at page 11 (e) and (a) - - -

HER HONOUR:  One moment.

MR McCARTHY: Sorry, page 10, relating to sections 106 and

102(1) of the Commonwealth Electoral Act; the

matters at page 11 (e) and (a), relating to

sections 30 and 41 of the Constitution.

HER HONOUR: Sorry - - -

MR McCARTHY:  Page 11 (e) and the next paragraph (a); they

are all references, Your Honour, in brackets. Then the reference at page 11, (b), that is reference as

to section 99(5) and 106, (b) and (a), are all
allegations, Your Honour, that essentially relate

to a challenge to the correctness of the electoral

rolls. In paragraphs (b), (a) and (b) of page 13

the petitioner recognizes that the Court of

Disputed Returns, pursuant to 361(1) of the Act has

no jurisdiction to inquire ·into the correctness of

the roll and any evidence or submissions otherwise
are necessarily inadmissible. The petitioner

therefore asserts in that paragraph, Your Honour,

that 361(1) of the Act is invalid. That
invalidity, Your Honour, is not a legislative
invalidity; the invalidity as it is cited is a

constitutional invalidity.

Now, one of the matters that Your Honour

raised with me last Tuesday was, what was the order

in which any of these matters concerned with this

petition should be dealt with, and where would

361(1) be best dealt with? Your Honour, in

paragraph 7 I put this submission: this assertion -

that is of constitutional invalidity, should be

determined prior to any orders or directions being

made by the Court which would constitute such an

inquiry or steps towards such an inquiry, for

instance, Your Honour, making orders on a subpoena.

Previous Courts of Disputed Returns have held that

the reception of any such evidence about the roll

is inadmissible and that the Court has no

jurisdiction to make such inquiry or associated

orders. In our submission, in other words, it

would be a requirement of the juridical process to

have come to a view about section 361(1) prior to

having allowed any inquiry to be made about the

electoral roll itself.

Now, Your Honour, I have set out under paragraph 7 the three major references by previous

Webster 25 26/7/93

Courts of Disputed Returns to the question of the

electoral roll, and I would briefly take

Your Honour to those references. The first is a

reference to a decision by Mr Justice Starke

concerning the 1929 elections, and it is a matter

concerning the electorate of Eden Monaro, Perkins v

Cusack, and this was the case, Your Honour, in which it was found, or rather it was alleged, that

there was the wrong inclusion of a subdivision or
part of a subdivision in the southern highlands in
the seat of Eden Monaro, and that as a result

various persons voted in the electorate for Eden

Monaro where, with comparison to the map, it would

seem that those areas were not within the

electorate at all, and what the challenge was taken

was to the electoral roll, whereby those persons

had voted for the electoral division of Eden

Monaro.

What the response was, by Mr Edward McTiernan,

as he then was, appearing for the respondent, was

that this was in inquiry into the correctness of

the roll, and there was an assertion, Your Honour,

which Your Honour will see at page 71, to this

effect:

S. 190 of the Commonwealth Electoral

Act -

which is now 361(1) - I am reading from page 71:

The Court shall inquire whether or not the

petition is duly signed, and so far as the

Rolls and voting are concerned may inquire

into the identity of persons, and whether

their votes were improperly admitted or

rejected, assuming the Roll to be correct, but

the Court shall not inquire into the
correctness of any Roll.

And then there is reference of evidence having been tendered and of that evidence having been rejected,

it being held: 

that the Court was, under the provisions of
sec. 190, bound to assume that these persons

were rightly on the roll; (2) that their right

to vote at the election was conclusively
established under sec. 112(3), and (3) that

such evidence would challenge the correctness

of the Roll and was therefore, not admissible.

The other parts at which Your Honour will find

references to that are at pages 73 where, at the

bottom of the page there is the reference to:

Webster 26 26/7/93

The suggestion was that the real place of living of these persons was not within the

Eden Monaro Division, and certainly was not so

within three months immediately preceding

polling day in that Division.

And then there is the reference to 73, 74 to

section 190 of the Electoral Act and at the bottom

of the page there is:

Consequently, I rejected evidence tendered to

show that the real living place of these

persons was not within the Division, for that

evidence would challenge the correctness of

the Roll, and such an inquiry is forbidden to

this Court by the statute.

And, it goes on from there. At page 75, I draw

Your Honour's attention, at point 2 of the page, to

this:

It was not suggested that anything in the

answers of these persons showed that they were

not entitled to vote. Consequently, in my
opinion, the Roll is conclusive, and, as

sec. 190 prohibits the Court from inquiring

into its correctness, again I rejected the

evidence.

That is precisely what is the inquiry that is sought to be made by my learned friend in this

case.

Now, Your Honour, that came again before the

High Court in In Re Berrill's Petition, 134 CLR

at 470, and this involved again a challenge to the
electoral roll in South Australia, and I read from

the holding on page 470:

On a petition which alleged that the

names of electors had been wrongly removed

claimed a declaration that a Senate election from sub-divisional voting rolls and which

for the State of South Australia was thereby

rendered void,

Held, that the petition complained of the

state of the electoral rolls, and by reason of

s.190 of the Commonwealth Electoral Act 1918

(Cth) the Court had no jurisdiction to

entertain the petition.

A reference there to Perkins v Cusack, and a

reference to two State Court of Disputed Returns

cases, one in New South Wales and one in

Queensland. I draw Your Honours attention

particularly to the part of the judgment of

Webster 27 26/7/93

Mr Justice Stephen, as he then was, at page 472, at

point 5 there is a reference to:

The Solicitor-General's submission is, I

think, well founded.

That was that the Court could not proceed to

inquiry into the roll. There is the quotation of

section 190 and then these words:

It clearly precludes the Court of Disputed

Returns from entering upon any inquiry into the correctness of any electoral roll and it

is exclusively upon the alleged incorrectness of such rolls in the State of South Australia

that the present petition is founded. It

follows that the Court has no jurisdiction to

entertain the petition; the petition is

misconceived and must be dismissed in whole in

exercise of the power conferred by

s.189(1)(vii) of the Act.

That is now section 358. Now, I also draw

Your Honour's attention to this because it may

become relevant in the policy background to the

Act. At page 474, at about point 2, ·

Mr Justice Stephen, as he then was, said this:

Any electoral system which, instead of providing a means of putting the electoral

rolls in order before an election, allows

alleged errors in those rolls to ground an

attack upon the validity of the subsequent

election exposes to risks of dislocation the

democratic process which it is designed to

serve. Hence, no doubt, the provisions,

commonly found in our election laws, for the

prior adjudication of disputes as to the state

of the rolls, such disputes being treated as

wholly distinct from, and not the proper

subject matter of, petitions concerning

disputed elections and returns.

I rely on that, Your Honour. The third

reference, Your Honour, is to (1985) 50 ALJR 64 at

66. This was the redoubtable Ms Berrill at a

further election who seems to have been the

electoral equivalent of James in the 1970s and

1980s. This concerned, again, a petition as to

raising details about electoral rolls and raising

matters which were then put in issue. I just draw

Your Honour's attention to page 64, at the very bottom of the page:

(4) The provisions of -

the various sections of the Act -

Webster 28 26/7/93

and of section 361(1) thereof (providing that

the Court of Disputed Returns shall not

enquire into the correctness of any Electoral

Roll) show a clear legislative policy that,

persons entitled to vote, and

subject to the procedures specified, the record of the

provided a further barrier to the plaintiff's

success in the action.

Your Honour, at page 66 in the first column there

is a reference at point 6 in the paragraph

beginning "The conclusions", which I will not read,

in which the details of the Electoral Act that

support that conclusion are set out. It culminates

in the quotation of 361(1) at the bottom of that

column, but I do draw Your Honour's attention to

this: Mr Justice Mason, as he then was, said at

point 2 in the second column:

The effect of section 190 was discussed

by Stephen J. (with whom Gibbs J. and I

agreed) in Re Berrill's Petition ..... where

His Honour pointed out that the section

precluded the Court of Disputed Returns from

entering upon any inquiry into the correctness
of any Electoral Roll. His Honour pointed to
the remedies which were available under the

Commonwealth Electoral Act (then Pts VII, VIII

and IX) to persons whose claims for enrolment

had been refused and to persons whose names

had been removed from the Roll.

The statutory provisions to which I have

just referred reflect a clear legislative

policy, that, subject to the procedures

specified, the Electoral Rolls shall

constitute a conclusive record of the persons

who are entitled to vote. This policy is the

product of the controversial and

unsatisfactory history of Parliamentary review

of disputed elections: as to which see Quick on election law. That, again, is a policy section & Garran •.... and Fraser -

on which I would rely. In the written submissions

we then go on to say this:  section 361 of the Act

is valid. There are constitutional provisions

including section 30 and section 41 which

established arrangements for the election of the

Commonwealth Parliament subsequent to the

inauguration of the Commonwealth in 1901. These

constitutional arrangements were to continue until,

pursuant to s. Sl(xxxvi), the Commonwealth

Parliament otherwise provided. Section 30 and 41

of the Constitution were specifically delimited in

Webster 29 26/7/93

time by the clause in each section "until

Parliament otherwise provides".

Your Honour, there is then a reference to King

v Jones and to Pearson Ex parte Sipka. King v

Jones is found at 128 CLR, and I just take you to

one reference. This was the 18-year-old voting
case, Your Honour, that was held at the beginning

of the 1970s, prior to the Commonwealth Electoral

Act being amended in 1973. This was based on a

therefore a person who was 18 years of age in South Australia was of full age and capacity for the purposes of voting under the Commonwealth Electoral

challenge that there was 18-year-old voting in

Act. The main sections that were relied upon were,

in part, section 30 and section 41.

I draw Your Honour's attention just to 230 in

a judgment of Chief Justice Barwick where there is

reference at the middle of that page to this, a

paragraph that begins:

The Imperial Parliament had to provide in

the Constitution for the initial election of

the Parliament and for a franchise until such

time as the Parliament should legislate to

specify the qualifications for electors of the sections 8, 9, 10, 30 and 31 of the Constitution. Section 30 provided both for a franchise for the election of the House of Representatives in the first Parliament and a franchise for election of that House until the

Parliament legislated on the matter.

Section 31 utilized the colonial electoral machinery continued in force by section 108 of the Constitution as State law, for the purpose of electing the first House of Representatives

and thereafter, and if subsequently amended,

perhaps, as so amended, until the Parliament

Sections 8, 9 and 10 of the Constitution made passed a Commonwealth electoral law. comparable provisions as to the franchise and

the procedure for the election of the Senate. That is, until Parliament otherwise provide. They

are my words, Your Honour. The then Chief Justice

goes on:

it was contemplated from the inception of the

Commonwealth that in Australia, unlike the

position in relation to the Congress as I franchise for Australia for the election of both the House of Representatives and the

think it was thought to be in the United

Webster 30 26/7/93

Senate. Consequently, both section 30 and

section 31, in relation to the House of
Representatives, are prefaced with the formula

"until the Parliament otherwise provides".

The provisions of sections 8, 9 and 10 with

respect to the Senate are to the like effect. Section 51 (xxxvi) gives legislative power to the Parliament to so provide.

Ten years later, in the case of Pearson Ex

Parte Sipka, which is at 152 CLR, there was a

challenge to the early closing of the rolls in the

election in 1983 and the challenge was on the basis

that there were persons who were enrolled to vote

at the State elections who, because of the early
closing of the rolls, were excluded from voting at

the Federal election. Those sections whereby that

was brought about was challenged and the challenge

was this time based on section 41. I take you to

that section, Your Honour, because my friend has

relied on sections 30 and 41 as providing some form

of constitutional standard or mandate against which
the Commonwealth Electoral Act is judged. That
challenge failed and at page 255 there is the

holding, which was supported by all the Court

except for Mr Justice Murphy:

that the right to vote in section 41 was that

possessed under a State law when the federal

franchise was established. Section 41 does

not confer a right to vote in a federal

election on any person who from time to time

has the right to vote at a State election.

One of the important points that was

established in that case, Your Honour, was that it

was the overall finding of the majority in that case

that this really applied to the generation that saw

Federation in Australia and that by Parliament otherwise providing it is in that section that we

that are the successors to the generation at

Federation find our right to vote in the Federal

election. This is found in a rather succinct

sentence of Justices Brennan, Deane and Dawson at

page 280, the last page of the report, where these

sentences occur:

However, the provisions of successive

Commonwealth Acts relating to the franchise

(and in particular provisions relating to

disqualification) have expressly acknowledged

the existence of a franchise the exercise of

which is protected by section 41 -

That is, one that existed for the generation that

saw Federation, and there is a reference as to

that.

Webster 31 26/7/93

But its purpose, as stated by its terms, is to

ensure the statutory franchise for those to

whom section 41 applies, namely, those who are

entitled to the constitutional franchise. By

providing that other provisions of the Act do

not prevail over section 39B, the Parliament

has done no more than to ensure that no

statutory disqualification excludes a person

to whom section 41 applies from the statutory

entitlement to be enrolled and to vote which

section 39B confers upon him.

That is, that they were specifically protected in

the Act, that is the generation that saw

Federation, if any were still alive by the 1980s.

But then there is this significant sentence,

Your Honour:

It follows, of course, that the practical effect of section 41 is spent. Most of the

electors who acquired a right to vote at

federal elections under sections 30 and 8 of

the Constitution would have died. Since

12 June 1902, when the Commonwealth Franchise

Act came into force, no person has acquired a

right to vote the exercise of which is

protected by section 41. None of the present

applicants is a person to whom section 41

applies. None of them is therefore entitled to enrol or to vote by reason of section 39B of the Act.

We therefore say, Your Honour, in paragraph 9,

that the Commonwealth Parliament made swift use of

its constitutional powers and enacted the

Commonwealth Electoral Act 1902, as consolidated in

1918. A section in t~e Act is section 361(1),

formerly section 190. As this legislation has been

enacted pursuant to a specific and exclusive power

of the Commonwealth Parliament (section Sl(xxxvi)),

this legislation is constitutionally valid.

valid being part of the electoral arrangements	Section 361(1) of the Act consequently is also
provided by the Commonwealth Parliament. The
limitations on the powers of the Court of Disputed
Returns, to assume the correctness of the Roll and
not to inquire into the correctness of the Roll, in section 361(1) therefore precludes any inquiry into the matters raised in the paragraphs of the
petition referred to in the first paragraph of this
submission. These paragraphs therefore, in our submission, Your Honour, do not comply with section 355(a) or section 355(aa) of the Act and no further proceedings should be had concerning them as the
facts stated do not invalidate the election nor are specific matters particularized which would justify
any relief pursuant to 355(a) or section 355(aa).

Webster 32 26/7/93

In other words, what we say, Your Honour, is

that there is no jurisdiction to inquire into those

matters, therefore nothing that can be raised there

can affect the validity of the election whatsoever.

HER HONOUR:	Can I interrupt you there?
MR McCARTHY:	Yes, Your Honour?

HER HONOUR: That refers back, does it, to the matters

stated in paragraph 5 on page 3 of your

submission - comprehensively, I take it.

MR McCARTHY: Yes, they do, Your Honour.

HER HONOUR:	Yes, thank you.
MR McCARTHY:	Thank you.  Your Honour, that is our first

challenge in relation to this petition. That is, that all references that relate to a challenge to

the roll are based on a constitutional - first of

all, that there is no basis for invalidity and

secondly, that that having, in our respectful
submission, been fairly easily established to the satisfaction of the Court, that the plenary power

of the Commonwealth under section Sl(xxxvi) to
otherwise make arrangements, which has been done

through the Commonwealth Electoral Act, a part of that machinery for the franchise is the disputing of votes and the role of the Court of Disputed

Returns, and that is peculiar within the power of

the Parliament, as has been demonstrated by the

series of decisions by this Court over two

generations. If there is something that is fairly

self-evident, in our submission, Your Honour, it is

the constitutional validity of that section and the

absolute exclusion in this Court of any challenge

to the roll.

Your Honour, that is the first sequence of our

submissions concerning this petition. At
paragraph 10 on page 5, I then turn to what seems

that is those provisions relating to section 338 of	to be the second major challenge to the return, and
the Electoral Act which are found at page 7,
paragraphs (c) and (a). Can I take Your Honour to
those. What is asserted there is this,
Your Honour, that section 338 of the Act was not
complied with in the electorate of Macquarie in that persons unlawfully marked ballot papers to
which they were not entitled. And then there is a
particulars paragraph which says that between 100
and 370 instances where the roll was marked more
than once for particular voters.

Now, Your Honour, much can be said about what

has been asserted there, but enough, in our

Webster 33 26/7/93

submission, is this: at its highest it would seem

to allege that a series of persons appear to have

voted twice. There may be other reasons why the

roll was marked twice, including mistakes, errors,

a whole series of matters, but nothing is asserted

about electoral officers whatsoever. So what is

asserted is what is known in electoral law,

presumably putting it at its highest, Your Honour,
personation of voters. That is, that persons voted

for other persons or marked rolls in that way.

That is a very serious allegation and it is

something that in certain circumstances can

invalidate the election. But our assertion here,

Your Honour, is this, that whatever that might

amount to, in the way that it is set out in this

petition it does not comply with section 355(a) and it does not comply with that, that is, an assertion

that can invalidate the election for this reason,

Your Honour.

What is asserted there, if we look at 355(a), the petitioner does not state any facts which

connect the first respondent in any way with these

alleged instances or that the instances occurred

with the knowledge or authority of the first

respondent. The Court's power, Your Honour, in

relation to such an allegation, is found in 362(3)

of the Act, and it is in these terms:

The Court of Disputed Returns shall not

declare that any person returned as elected
was not duly elected, or declare any election

void:

(a) on the ground of any illegal practice

committed by any person other than the

candidate and without the knowledge or

authority of the candidate;

..... Unless the court is satisfied that the

result of the election was likely to be

affected -

And it goes on that it is just, et cetera, that
they be declared.	Your Honour, there is no

assertion in this petition that any of these

instances, taking them at their highest, was in any

way connected with the first respondent or occurred
with the knowledge or the authority of the first

respondent. This Court's power under

section 362(3) is not activated by the pleading

that Your Honour sees before you and Your Honour

could not declare the first respondent not duly

elected on the basis of the material that is

asserted there.

HER HONOUR:	What about the proviso, the "unless"?
Webster	26/7/93

MR McCARTHY: Well, Your Honour, that is unless the Court

was satisfied that the result was elected by things

happening with the candidate's knowledge or

authority. To connect a third party to the result

of the election requires that there be the

knowledge or the authority of the candidate. If

that is not present, Your Honour does not even have

to move to being satisfied about whether the result

of the election was affected.

HER HONOUR:  I do not follow the way you put it at all. I

read it quite differently. I read it on the basis

that yo.u shall not do it in the circumstances

unless, that is to say that there is an overriding

power, where the result of the election was likely

to be affected and it is just that the candidate

should be declared not to be duly elected, or that

the election should be declared void. So that

there is still a further inquiry, it seems to me,
as to whether the election was likely to be

affected.

MR McCARTHY: 

Well, Your Honour, that would be in relation

to the second ground that there was an illegal
practice committed, in my respectful submission, by

a candidate.

HER HONOUR: 

It seems to - the format qualifying both paragraphs (a) and (b).

MR McCARTHY: 

It does, but, Your Honour, it has got an "or"

there, one has to look at how this is taken -

HER HONOUR: It has a semi-colon after "corruption".

MR McCARTHY: That is so, but, Your Honour, the line "unless

the Court is satisfied that the result of the

election was likely to be affected", in practical

terms, Your Honour, if there is an illegal practice

being alleged that is other than bribery or

corruption, we say that that would be one that

would then immediately indict the plaintiff. But

that is alleged here, which is personation, what	in relation, Your Honour, to the specific matter
our submission is is that the way that the power of the Court is set up is that while personation may occur, unless it is specifically established that this is with the authority or the knowledge of the
candidate, it is not something that is brought home
to the candidate - - -

HER HONOUR: Are there authorities on the section as it

presently stands?

MR McCARTHY: Yes, Your Honour. Well, in relation to the

nature of personation there is certainly authority

as to what the meaning of "duly elected" would be

Webster 35 26/7/93

in terms of the form of ballot that we have at the

moment, that is the open roll and secret ballot

system. Your Honour, I have elaborated on that in

the submissions. In relation to section 35S(aa) we

have asserted, Your Honour, that the petitioner has
not set out with sufficient particularity or at all

how this allegation justifies any relief against

the first respondent, in the absence of any

allegation that these instances were connected in

any way with the first respondent or occurred with

her knowledge or authority. We say, Your Honour,

that the allegation in these paragraphs concern

votes.which have been cast in the election and
which now cannot be identified; obviously, they

have gone into the ballot box and they have been

counted. All of the votes, Your Honour, could have

been for the petitioner.

In Bridge v Bowen this Court dealt with

similar circumstances in an election in a municipal
election in 21 CLR, and this has remained the

authority on these matters from that day to this.

In that case, Your Honour, which has been held to

affect all parliamentary elections in using the

ballot system as we know it throughout Australia,

whether it be for the Federal Parliament or for the

State Parliament or for other parliaments, there

was in this, Your Honour, you will find at 582 a

headnote concerning the meaning of "unduly

elected". In this case, Your Honour, it was

alleged that there had been a series of personation
of voters that was larger than the majority of the
candidate and the courts below had set the election

aside. The matter went on appeal to the High Court

where the High Court found that under the meaning

of "unduly elected" that where all that was alleged

was that votes, I am quoting at page 583 at about

point 5, it was:

Held by Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ (Griffith CJ and Barton J

dissenting), that under the Sydney Corporation

Act 1902 a person declared to have been

elected as an alderman does not appear to be

"unduly elected" within the meaning of

section 56 of the Act if nothing more appears
than that votes given by personators have been

accepted and counted and that the numbers of

those votes is greater than the difference
between the number of votes cast for that
person and the number of votes cast for the
unsuccessful candidate declared to have
received the next highest number of votes.

The key expression, Your Honour, if I may take

you to it, is at page 624. This is a judgment in

which Justices Gavan Duffy and Rich concurred, and

Webster 36 26/7/93

in relation to this point there is a similar point

made by Justice Higgins and Justice Powers. The

point is at 624 at point 2 and it is headed (5):

Where the defect -

which is personation -

complained of does not strike at the election

as an entirety, but is confined to some breach

of law in individual instances, then he is not

necessarily affected, and is not affected at

all unless he or his majority is shown to be

connected with the defect.

(6) If the law does not provide any means of

so affecting him he is not affected, and, as

his selection cannot be regarded as unduly

made, it must rest where it is.

What we say is to be drawn from that,

Your Honour, and that has remained the principal

law on this point down to the present time, is that

where we have similar words as in 362(3) about "not

duly elected" as against "unduly elected", that

what is necessary to establish facts that go to the

validity of the election, Your Honour, is to

actually connect the petitioner with what is

alleged. And where there is no connection, either

authority or knowledge or otherwise between the

petitioner and the breaches of the law, then what

happens, Your Honour, is not, in our submission, an

allegation in the way that is put here that affects

the validity of the election.

At 635, Chief Justice Griffith, the then

Chief Justice, in referring to this authority which

he abhorred but recognized that this was the law of

the land, said this:

This decision governs elections to the Federal

Parliament and to most of the State

Parliaments, as well as municipal elections.

And it remains the law, Your Honour, in our

respectful submission, from that time to this.	The
sense of it, of course, is that there is no way -

we never introduced the system in England as a part

of our on-going Federal voting system of the

counterfoil system whereby they had the books of

tickets in England, or counterfoils, and a ballot

paper had a number on it and if there was a

challenge over personation it was a certain vote.

That vote had a number on it and they could compare

it with the original part of the butt or the ticket

and it could be withdrawn from the count. Here in

Australia, once the vote is in the ballot box there

Webster 37 26/7/93

is no way in which one can know how that person

voted. As was said in our submissions, it could

have been a vote for the petitioner or for the
respondent. It is referred there specifically by

Chief Justice Griffith at 635 where he says: In elections conducted by ballot when there is

no means of identifying the votes given by

individual voters, a vote given by a
successful personator is, at common law,

unless expressly declared by Statute, as

effective as a vote given by a genuine

elector. It follows that when it is shown

that personators sufficient in number to turn

the scale have succeeded in voting the

election is, nevertheless, valid, and cannot

be set aside.

Your Honour, the way in which that is attacked

is to bring in specific references and the specific

connection to the petition. That is not done in

this petition and, not being done in this petition,

these facts do not allege anything, in our

submission, that could go to the validity of the

election. There is nothing, Your Honour, as we

have stated at page 6, that could activate the

jurisdiction of this Court in this matter under

section 362(3) in relation to the respondent's

majority in this particular case.

That would include, of course, Your Honour,

the proviso that nothing has been asserted there
that would show, of course, that it was just to set

aside the election of the first respondent or

otherwise make any order against her at all.	If it
was asserted that this was some form of way in
which the validity of the election would be

attacked, in our submission, Your Honour, those are

matters - - -

HER HONOUR:  When did section 362 take its present form?

MR McCARTHY:	Your Honour, 1902.
HER HONOUR:	It has not been altered at all since?

MR McCARTHY:  I brought it up with me, Your Honour. I will

hand it up.

MR THERRY-WARD:  Your Honour, if I might assist without

butting	in on my learned friend, according to
table 2	at the back of the Act, section 362 was
amended	in 1983, in 1984, 1990 and 1991.

HER HONOUR:  Thank you.

Webster	38	26/7/93
MR McCARTHY:	I am sorry, Your Honour.	Your Honour, it is

certainly in the Act in 1918, in the consolidation

in 1918. I will show my friend.

HER HONOUR:  Has there been any decision specifically on

that provision, as distinct from what was said in

Bridge v Bowen and - - -

MR McCARTHY:  No, there has never been. I withdraw that.

As far as I am aware, there has not been a decision

in relation to that part of it, other than the

decision I have referred to on personation.

Your Honour, I will come back to that. I am sorry,

Your Honour, I was under the impression it was in

within tni 6 Pfrst amendments, but it is certainly in	the 1902:Act; but it may have been brought in
the first c'ansolidation. It is a section of the
Act that has stood for 70-odd years. I just hand
that up to Your Honour; 191.

HER HONOUR: Thank you. Could I ask this. Are there

similar provisions in similar form - and I am

talking about the proviso, I am talking about the

meaning and effect of what I will call the proviso,

unless the Court is satisfied that the result was

likely to be affected and that it is- just that the

candidate should be declared not to be duly

elected - are there any similar legislative

provisions anywhere else?

MR McCARTHY:  I think virtually in every State Act,

Your Honour.

HER HONOUR:	And have they been considered in terms?
MR McCARTHY:	You are t?sting me now, Your Honour.

Your Honour, .. _ uld I take that on notice.

Generally, I looked to see where there has been -

in my recent researches over the law on

personation, which largely is tied out in that

section. The principal authority on personation

has remained Bridge v Bowen, because of what are

the strictures of Chief Justice Griffith. It has
been held to apply for the whole of Australia.	I
did not find any other authority that really discussed that in those particular ways but I
understand what Your Honour is saying, and if I
could come back to Your Honour about that.

HER HONOUR:	Yes, thank you.
MR McCARTHY:	Your Honour, in relation to the balance of our

point, what we allege here is simply this, that

what is put forward in this petition does not

provide a basis on which Your Honour could find -

that there is not sufficient detail put there that

would allow the validity of the election to be put

Webster 39 26/7/93

in doubt and that the nature of the allegation
itself, which goes to personation, in our

respectful submission, is manifest. That is, that

if you are ultimately alleging personation of

voters, what is required to affect the validity of

the election is to sheet that home to the

respondent, to the member, and if you do not sheet

that home to the member, if you do not plead that

it is with the knowledge or the consent or

connected with the member in some shape or form,

then that member and that member's majority is not

affected by that allegation. As that is not there,

Your Honour, regardless of what authority would be

elsewhere, we say that as a matter of policy and

clear understanding as to what our electoral system
is in terms of voting, that that must be the
effect.

As a result, Your Honour, we say that those

sections of the petition that relate to personation
of voting, which is an allegation that is set out

in page 7, paragraphs (c) and (a), should not be

proceeded with.

The next matter, Your Honour, in ascending

order, that we refer to in our written submissions,
goes to misleading statements to electors. The

paragraphs that we refer to there, Your Honour,

begin on page 7, the (b) where second appearing,

where there is this:

That, contrary to Section 329 of the Act, the

First-named Respondent caused printed material

to be published and distributed within the
electorate that was likely to mislead or

deceive an elector in relation to the casting

of a vote.

Now, Your Honour, before I take Your Honour to the

documents that are pleaded there, I just take you

to our written submissions because I hope, without

being elliptical, I have fairly succinctly stated

what is the standing of the interpretation of that

Act by a previous Court of Disputed Returns in 1980

in the case of Evans v Crichton-Browne. The

reference there, Your Honour, is to 147 CLR, and I

take you to page 204, and the reference there is to

161, that is now 324, Your Honour, and the words

that I am referring to Your Honour will find at

point 6 of the page. Perhaps I might read the

whole of the sentence down to that paragraph,

beginning with the words:

If the words of s 161 (e) are considered

alone, and given their natural meaning, they

do not have the effect for which the

petitioners contend. The words forbid the

Webster 40 26/7/93

printing, publishing or distributing of the

electoral advertisements and other documents

of the kind mentioned in the paragraph only if they contain any untrue or incorrect statement

which is intended or likely to mislead or

improperly interfere with any elector in the

manner to which the paragraph refers, ie "in

or in relation to the casting of his vote".

The phrase "cast a vote" has a well defined

meaning - "to deposit (a voting paper or

ticket); to give (a vote)" (Oxford English

Dictionary); "to deposit (a ballot) formally

or officially; give a vote" (Websters

International Dictionary). It does not

include "to decide for whom to vote". The use

of this phrase ins 161 (e) suggests that the

Parliament is concerned with misleading or

incorrect statements which are intended or

likely to affect an elector when he seeks to

record and give effect to the judgment which

he has formed as to the candidate for whom he

intends to vote, rather than with statements

which might affect the formation of that

judgment. Certainly par (d) of s 161 is

concerned only with a particular instance of a

misleading or incorrect statement of that

kind, namely a statement contained in a

document representing, or apparently intended

to represent, a ballot-paper.

Now, Your Honour, we say that what is set out here is just absolutely, if I could put it this

way, misconceived, that if Your Honour turns to

what is set out in the particulars, whatever else

they are going to, that is beginning at page 7(a),

the document that begins:

"Dr Hewson says he'd cut the price of petrol -

over the page, at (b):

over the page, (c), in a document headed:	In a statement entitled "Candidate's Report" -
The First-Named Respondent was party to the
distribution of a statement which declared"
"For schools in the electorate -

and then the thing about Fightback, and then - The document stated "Thinking of Voting

Democrat? ... Vote Maggie Deahm. "

HER HONOUR:  Now, that one might well, might it not, fall

within the proscription in Crichton-Browne?

Webster 41 26/7/93

MR McCARTHY: Well, it would, Your Honour, except that there

is a little problem in relation to section 209 of

the Electoral Act which says that the name of a
candidate and the party is on the ballot paper, and

one of the allegations further in this matter that

Your Honour will find is that there are some

allegations about ballot papers and there will be
occasion in this matter for Your Honour to briefly

look at section 209 and the schedules to the Act. But, Your Honour, attached to the petition is

a copy of the offending piece. Your Honour might

see it, I think it is about the second or third

last page. It has got, "Thinking of voting

Democrat?" Does Your Honour have it amongst your

papers?

HER HONOUR:	I have got the document on page 9.
MR McCARTHY:	"Thinking of voting Democrat?"
HER HONOUR:	Yes.
MR McCARTHY:	Now, Your Honour, if you are casting your No 1

vote for the Democrat candidate, you are talking

about a context of a person casting a vote; if you

are talking about the context of a person casting a

vote, you have the ballot paper; if you have got

the ballot paper you have got a candidate with a

name of the party beside it, and the name of the

party that is beside that candidate, Your Honour,

the name of the candidate beside whom, in

Macquarie, the words "Australian Democrat" is

written is not Maggie Deahm. So the reference

there is first and foremost to a candidate for whom
you are going to give your No 1 vote which has the
name of a person and his political party beside it,

the Australian Democrats. What that document asks,

that if you are voting that way, to give your No 2

vote to the Labor candidate. Who is the Labor

candidate? If you have a ballot paper in front of

you, for Macquarie, the name of that candidate is

Maggie Deahm. Your Honour, there is nothing that

is less misleading or deceptive than to ask for a

No 2 vote for the Labor candidate in that seat from

the Democrat.

HER HONOUR:  I am sorry, you say I have got that document.

What are you - - -

MR McCARTHY:  I am sorry, Your Honour, I will just tear it

off my copy, the original that was served. Might

I just hand it up? I will just make sure I - might

I tender that, just as a reference to the document

I am referring to.

HER HONOUR:  Yes, thank you.

Webster 42 26/7/93

MR McCARTHY:  It is agreed by my learned friend that this is

the document.

HER HONOUR:  Thank you. I will mark that exhibit 1. That

is agreed, is it, that that is accurate as to size

and con~ent?

MR THERRY-WARD:  Yes, it is indeed, Your Honour. That is

so.

HER HONOUR:	Does the colour matter?
MR THERRY-WARD:	It was a prettier colour than that, but it

does not matter, Your Honour.

EXHIBIT:  Exhibit 1 ..... Document

MR McCARTHY:	We say that Your Honour would view that in the context of section 209 of the Act and Form E in
Schedule 1 of the Act, which is the official schedule whereby the ballot papers are given
statutory form. What we would put to you first and
foremost, Your Honour, is that in that context that
is not a misleading or deceptive statement and what
is being asked for is, in our respectful submission, clear.

Your Honour, that is only our first point,

that is that the documents that are put forward are

not misleading statements or incorrect statements

likely to affect an elector when he seeks to record

or give effect to his vote.

Now, the next thing is this, in our

submission, Your Honour, and we say this at the top

of page 8: not only is the material that is set
out there not such as comes within the strictures

of section 329, but further, Your Honour, it is not

particularized how these documents have that effect

as distinct from just asserting that they have that

effect. Secondly, it is not shown how the

publication of these documents may have affected

the result of the election in any way. \

These documents, in our submission,

Your Honour, do not have the effect that is stated

from what is set out in the petition or attached to

the petition. In our submission, therefore, this

section of the petition is defective both in form

and in substance and that is under both

section 355(aa) in relation to any matters - in

particularity of matters that would justify any

relief, and secondly in showing, under 355(a), as

to how what has been pleaded goes to the validity

of the election. In our submission, therefore,

Your Honour, under 358(1) there should be no

Webster 43 26/7/93

further proceedings had in relation to this

allegation whatsoever.

Now, Your Honour, combined with that is the

next allegation which is undue influence and

illegal practices. The petitioner alleges conduct

by the first respondent which is described as

"undue influence", "illegal practices" and: making false and/or untrue statements with the

intention thereby of persuading voters to vote

for her.

And that states the contents of several documents,

Your Honour, that begin at page 2, paragraph (b):

The First-named Respondent was guilty of undue

influence during the conduct of the Election.

Then it is said:

the first-named Respondent was guilty of
illegal practices during the conduct of the

Election.

Then:

The First-Named Respondent was guilty of

making false and/or untrue statements with the intention thereby of persuading voters to vote for her.

Then there are various particulars that are set

out, Your Honour. We are said to have:

sought to wrongfully coerce voters in the way

they should vote and the people they should

vote for, by engaging in the following acts -

and then there is a quotation, again, Your Honour,

of the Dr Hewson document. In our respectful

submission, Your Honour, that document could not

vote, nor is it a document which, in terms of undue	or deceptive statement going to how a person should amount to undue influence. It is not a misleading	influence - which is a particular provision under the Act and is referred to at section 352(1) of the
Act where it is defined as meaning:

a contravention of section 327 of this Act -

which talks about -

A person shall not hinder or interfere with

the free exercise or performance, by any other person, of any political right or duty that is

relevant to an election under this Act.

Webster 44 26/7/93

It then refers to various things concerning discrimination.

Your Honour, the detail that is set out here,

in our respectful submission, do not show how

section 327 or the Crimes Act has been contravened

or how the publications of these documents has

affected the election or the election result in any

way whatsoever. In other words, Your Honour, this

is an example of just the bare assertion of various

documents as alleged to have had some effect. It

is not said, for instance, Your Honour, on whom the

effect was had and it has not been established how

the publication of these documents in a way that

has been asserted in these petitions could

invalidate the election or justify any of the

relief that the plaintiff has sought. So, in our

respectful submission, Your Honour, once more,

these are paragraphs on which there should not be

any further proceedings.

Now, Your Honour, those are the most general

allegations that my friend has made in these

matters that are raised in the petition. There is

then a series of other allegations that go to

individual instances, and I would only briefly deal with those, Your Honour, as I think that the points

can be raised very quickly about them.

There is an allegation, Your Honour, of

incorrect marking of the roll. Now, this is at

page 2, paragraph 3(a). This is the reference,

Your Honour, to Cameron John Webster. Now,

Mr Webster, it is asserted, cast his vote for the·

petitioner and received a document subsequently,

apparently.

What the respondent says is this: the

petitioner alleges one incident in which an elector

was not deprived of his franchise. The incident has not affected the result of the election and,

under 355(a) it does not constitute a fact which

would invalidate the election. It cannot go to any

voting at all, Your Honour. A single incident, as

alleged, is an error, may be an error or omission,

that is to send an "Apparent Failure to Vote"

notice, which does not affect the election and it

could not be the case, Your Honour, that the

election could be declared void on that account.

Such provisions, Your Honour, such actions by

electoral officers, that is that it may be an error

to have sent that notice to Cameron John Webster,

is covered by section 365 of the Electoral Act,

which says this:

No election shall be avoided on account of any

delay in the declaration of nominations, the

Webster 45 26/7/93

provision of certified lists of voters to
candidates, the polling, or the return of the
writ, or on account of the absence or error of

or omission by any officer which did not

affect the result of the election.

So that there is nothing in this incident

whatsoever, Your Honour, that could go to anything

any relief whatsoever. to do with the validity of the election or justify

Then, Your Honour, we go to an incident

alleg~d about mobile booths, and that is at pages 6
to 7, paragraphs (vii), (a) and (b). This is an

allegation about section 224 or - this is at

page 6; (vii) says:

with respect to the taking of votes from

That, contrary to Section 224 and/or

hospital patients the said legislation was not

complied wit~ -

and then there is the reference to the Bradbury

incident, that is that is set out there,

Your Honour, and that is set out at the bottom of

page 6 in paragraph (a) and the top of page 7 in

paragraph (b). The gravamen is this:

One of the officers from the said Commission

asked Mr Bradbury for whom he wished to vote.

Mr Bradbury then indicated that he wished to

vote for Alasdair Webster. The officer then

filled in a voting form for Mr Bradbury but·

did not show him the completed ballot paper at

any time.

Well, Your Honour, the petitioner here does

not allege that the elector's vote was not in
accordance with his instructions and the facts

alleged do not identify sufficient matter, in our

submission, to justify the grant of any relief

under section 355(a). It is not said that

Mr Bradbury was deprived of his vote or of voting

specifically for Mr Webster. In other words,

Your Honour, we say that whatever else this might

be characterized as, it is not enough to justify

any relief or order against the second respondent,

that is to count as anything that would go to

having affected a vote.

Now, the next matter, Your Honour, concerns

interference with the exercise of a political

right. This is the allegation on page 14,

paragraph (a). That is section 327(1) of the Act.

If I might take Your Honour to that. That is

Webster 46 26/7/93

page 14, paragraph (a). What is asserted here,

Your Honour:

There was hindrance or interference with the

free exercise or performance of a political

right or duty that is relevant to the

Election, in contravention of Section 327(1) -

of the Act. Then there is set out details of the

incident concerning Mr D. Hennesy of 5 Eucalypt

Road, Springwood, and Mr Hennesy apparently was the

subject of what one could probably call vulgar

abuse at the polling booth and then it is said,

Your Honour, on page 15, paragraph (b) -

It is claimed that this behaviour -

presumably to Mr Hennesy -

was likely to affect the outcome of the

Election for the Electorate of Macquarie -

and what the first respondent says in relation to

that is this: that what is set out there, first of

all, does not assert or allege that any elector's

vote was affected in any way, including

Mr Hennesy's, and that what is asserted in support

of this proposition, Your Honour, are not any facts

that could invalidate the election under

section 355(a). Mr Hennesy bravely went on and

voted for Mr Webster in this election, and there is

nothing that is said there that affected a vote,

that could invalidate the election, or could found

the basis of any relief whatsoever. Your Honour,

the 40 days has expired, there is nothing that can

be added to that section now, and we submit that

that is one of the clearest - in this case a

classic - of where nothing has been added,

Your Honour, or stated, that could affect the

result of the election.

The next matter that I would take Your Honour

to is at page lS(c), and that is this allegation:

The requirements of the ballot paper were confusing.

This is dealt with in paragraph 17 at page 9, and

the respondent says this. The petitioner makes

allegations about the format and wording of the

ballot paper for the House of Representatives and the ballot paper for the Senate. The allegations do not comply with section 355(a) or

section 355(aa) as no allegation is made that the

ballot papers do not conform with the requirements

of section 209(1), (2) and (3), and Form E in

Schedule 1 and Form Fin Schedule 1.

Webster 47 26/7/93

That is, Your Honour, there is not even a

skerrick of an allegation that the ballot papers

are not the ballot papers in statutory form as
required under the Act. And if the ballot papers are not alleged - there is no allegation that the

statutory form has not been complied with, this is

a completely and utterly spurious allegation by the

petitioner and it is of such a nature, Your Honour,

that there should be no proceedings about this

whatsoever and that at this stage they are not in a

position, in our submission, to add any detail to

that whatsoever. I might also add that no details

are added, the assumption is just made here, that
what is made reference to there is the ballot paper

for Macquarie and the Senate ballot paper for New

South Wales. That having been said, Your Honour, I

observe that there are no details sufficient set

out there that could otherwise affect the result of

the election under 355(a) or justify any relief

under section 355(aa). But the primary indictment,

Your Honour, is that there is no suggestion that

the statutory form has not been complied with. Questions to electors is the next matter,

Your Honour, section 229(1). On page 16,

paragraph (b) of the petition, there is this

allegation:

Section 229(1) of the Act was not complied

with at polling booths for the Electorate of

Macquarie in that not all voters were asked

"Have you voted before in this Election?",
therefore possibly affecting the outcome of
the election.

Now, Your Honour, there is an assertion there

of some form of polling clerk error, one would
think. There is no detail as to how often this

might have happened, where it might have happened,

or the voters that it might have happened with.

There is no detail there, Your Honour, from which,

in terms of the majority, it could be inferred that

votes had been invalidated. It is not asserted in	the election had been invalidated or that even some
that paragraph that these persons did not vote or
that they did not vote in terms of their
intentions. And it is not asserted, Your Honour,
that - - -

HER HONOUR:  I think the inference is that some might have

voted twice or three times.

MR McCARTHY:  The next thing I was about to say,

Your Honour, and this relates of course to the submissions that I have already made in relation to

personation of voting, and again, the submissions

that I have made concerning the lack of connection

Webster 26/7/93

of any of that matter with the first respondent or
that any of this was with the knowledge or the

authority of the first respondent, is not asserted

at all.

In our submission, Your Honour, that is

another section of the petition which does not

comply with the Act and on which further
proceedings should not be had, and it is one for
which there is no time at which this could be

amended.

The next matter, Your Honour, is that the

result	he election in the division of Macquarie
and the	ult of the election Australia-wide is
invalid.	hat is the assertion, Your Honour, at
page 16, paragraph (c).	My friend has withdrawn

the submission in relation to Australia-wide, so we

are left with the seat of Macquarie.

I draw Your Honour's attention to what is

alleged in paragraph (a) and what is said and set

out there, and I draw Your Honour's attention to

this: the facts alleged in respect of the division
of Macquarie do not assert that any votes were

lost, destroyed, or not accounted for, in that

seat. This paragraph does not comply with section

355(a) or section 355(aa), and the facts asserted
do not invalidate the election or justify the grant

of any relief in that seat whatsoever.

There is also no allegation in relation to

that seat, Your Honour, that says that this was a

mistake, omission or otherwise neglect of duty by

any electoral officers, so that there is no

specific allegation that would draw this to - as to

how this might have affected the result of the

election. But principally, Your Honour, whatever

is said in relation to Macquarie, there is not one

fact set out there that affects a vote in that seat

whatsoever~

Then, Your Honour, section 329, the right of

political freedom. This is the allegation at

page 17(b):

The right of political freedom as guaranteed

by the Constitution was contravened during the

election.

And it says:

Section 329 of the Commonwealth Electoral Act

contravenes the right of political freedom as

guaranteed by the Constitution and by the

general law and is therefore invalid and

Webster 49 26/7/93

consequently, voting at the general election

was invalid.

I take it from what was conceded by my friend

earlier this afternoon that there is no allegation

now made about other seats, therefore the reference
there to "the general election" I presume is to be

read down to being a reference to Macquarie only

and not generally.

But assuming that that is right, Your Honour, one could say many things about this particular

pleading, but I will settle for this. The Act,

that is the Commonwealth Electoral Act, in my

submission is constitutionally valid law passed by

the Commonwealth Parliament. Section 329 of that

Act is also a valid section. The petitioner's

allegations as to invalidity are unfounded in law

and do not otherwise comply with section 355(a) or

355(aa) as to constitute facts which invalidate the

election or justify the granting of any relief.

What flows from anything there, Your Honour,

is just not specified at all. No votes are

referred to, no electors are referred to, no

documentation is referred to, nothing is referred

to whatsoever and it is the most vague and general

allegation that one could expect to make. It is

not, in our submission, a pleading that is

retrievable and, as a consequence, Your Honour, in

our submission it should be one on which there are

no further proceedings.

The last matter that we would take you to

concerns an allegation of publication of false and
defamatory statements and this is at pages 15 and

16.     Page lS(b):

The First-Named Respondent published false and

defamatory statements in relation to the
personal character or conduct of the

16(a): 

Petitioner. 

The said First-named Respondent was guilty of

breach of Section 350(1) and/or of the

Commonwealth Electoral Act in that she

published an advertisement in a
widely-circulated newspaper that the

Petitioner would not engage in a public debate

with the First-named Respondent, which

statement was false to the knowledge of the

First-named Respondent and was defamatory of

the Petitioner, and the First-named Respondent

published other defamatory material of the

Petitioner.

Webster 50 26/7/93

There is a copy of the advertisement somewhere.

HER HONOUR:  What page were you reading from again?

MR McCARTHY:  I am sorry. I was reading from the bottom of

page 15, ( b) .

HER HONOUR:	If I go to your outline of submissions - - -
MR McCARTHY:	I am reading from 21, Your Honour, and I would

ask you to change 21, from where it has "17(a)",

would you change that to 15(b), please. There is a

misprint. Now, Your Honour, what we allege or what

is said in reply is this, that the allegations do

not allege any matter which would justify the granting of relief or the invalidating of the

election. No allegation is made that any elector

was affected by this publication or that the result

of the election was likely to be affected.

Sections 355(a) and 355(aa) have not been complied

with in the facts alleged in this paragraph.

Your Honour, it is asserted that this is

defamatory; it is asserted that it is personal; all

sorts of things are asserted; but what is not

asserted is how it affected the result of the

election. It is not asserted that any voter has

been influenced or affected in any way by what was

asserted there.

Now, Your Honour, that is one that falls

within the idea of specific matters, particularity

of matters, that would justify the granting of

relief. It is a serious allegation to have been

made; it is made in the widest possible terms; it

is not made in terms that comply, in our

submission, with sectton 355 of the Act.

Those are the submissions on behalf of the

first respondent concerning the principles of the

application of 355. I just want to draw

Your Honour's attention to three details concerning	previous authority in this Court. First, in 1 CLR	itself in Cameron v Fysh, as to the possibility of
amendment. I take Your Honour to 1 CLR 314 at
page 316 where Chief Justice Griffith refused leave
to amend a petition to insert an allegation "that
several persons had been refused permission to vote" at a particular polling booth outside their division and, in doing so, he says at page 316:

This is substantially a new ground of

objection to the election. The Electoral Act

requires the petition to set out the facts

relied on to invalidate the election, and it

must be filed within forty days after the

return of his writ. If I were to allow the

Webster 51 26/7/93

application I should practically be extending

the time for presenting the petition.	I
refuse the application.

That was the first example of the application of the strictures of amendment that are associated in

this Court with election petitions.

The next matter, Your Honour, concerns another

one of the Berrill cases. This is the case at

52 ALJR 359, In the Matter of a Petition by Helen

Therese Berrill and of a Poll for the Electoral

Division of Boothby (S.A.). The headnote says: Elections - High Court sitting as Court of

Disputed Returns (Cth) - Petition disputing

election on ground of breaches of statutory

provisions - Petition invalid as stating only

conclusions of law without setting out facts

relied upon - Petition not amendable after more than forty days from return of writ -

and the holding is that:

By reason of the operation of the provisions

of ss. 185(a) and (e) and 187 of the Act -

which is now the present 355 -

the petition was such that no proceedings

could be had upon it under the Act, in as much

as it alleged conclusions of law without

stating the facts from which those conclusions

might be drawn, nor could an amendment to the

petition be allowed for the purpose of setting

out such facts, because the period of forty

days specified in·s.185(e) had elapsed, and to

allow such an amendment would be in effect to

permit an evasion of the requirements of

s.185(e).

The reference, Your Honour, is at page 360, at

about point 6 of the page, there is the paragraph

that says:

Further, it is established by the decision of

Griffith C.J. in Cameron v Fysh (1904),

1 CLR 314, at p.316, that if the petition does

not set out the facts relied on to invalidate
the election it is not possible to allow an

amendment of the petition after the period of

forty days has elapsed, for to do so would in

effect be to permit an evasion of the

requirements of s.185(e).

The question therefore in this case is

whether the petition does set out the facts

Webster 52 26/7/93

relied on to invalidate the election. The petitioner has submitted that it is enough that she has alleged that there have been

substantial breaches of a number of sections

of the Electoral Act. That, she says, is the

fact upon which she relies to invalidate the

election.

But upon proper analysis, what she has

alleged are conclusions of law. She has not

stated the facts from which those conclusions

may be drawn.

In my view, it is impossible to say that

this petition does comply with the provisions

of s.185(a) and it must inevitably follow that

no proceedings can be had upon it.

That is, just stating conclusions of law that something is unlawful, that something is said to

offend the Act, is not in the jurisprudence of this

Court sufficient to amount to a finding under - as
being a proper statement under what was

section 185(a) and is now section 355(a).

Your Honour, the last matter was Nile v Wood,

which was one of the cases that led to the

amendment. That Your Honour will find at 167 CLR

133, and the references I would take Your Honour to

in the judgment are at 137 at point 5 where there

is this paragraph that says:

If a petition does not comply with s.355,

s.358 ensures that no proceedings may be had

on it. Nor are such defects capable of being

cured by amendment, at any rate after the

period of forty days fixed by par.(e) for the

filing of a petition has expired. That much

is clear from several decisions of this Court,

in particular Cameron v Fysh; In re Berrill

and Evans v Crichton-Browne.	The rationale of
the refusal to allow an amendment in those
circumstances may be found in the judgment of
Gibbs A.C.J. in In re Berrill: : ... for to do
so would in effect be to permit an evasion of
the requirements of s.185(e)." Section 185(e) of the Act, as it then stood, was in terms
comparable to s.355(e) of the present Act.

Further, Your Honour, at page 139 at point 3, there

is a paragraph that begins "Paragraph 2(a)" and I

read:

Paragraph 2(a) of the petition does not

set out facts which bring the first respondent

within par.(ii) of s.44 of the Constitution.

Webster 53 26/7/93

It is not conviction of an offence per se of which s.44(ii) of the Constitution speaks.

The disqualification operates on a person who

has been convicted of an offence punishable by

imprisonment for one year or more and is under

sentence or subject to be sentenced for that

offence. The references to conviction and

counsel for the petitioner argued otherwise. sentence are clearly conjunctive, although language -

et cetera. And they go on through that. Then the

last sentence, Your Honour:

The petition does not identify the precise

offence to which the words "obstructing

shipping" are intended to refer and nothing at

all is said in the petition regarding

sentence.

Then:

Paragraph 2(c) of the petition is simply a conclusion the petitioner invites the Court

to reach. It sets out no facts.

There at page 140, we would say that that

conclusion is a similar conclusion that applies

here of failure "to comply with the requirements of

section 355(a). The consequence is that the

petition is incurably defective and that no

proceedings may be had on it."

Your Honour, I hand up to Your Honour a Court

of Disputed Returns decision in New South Wales by

Mr Justice Needham called Yates v Unsworth arising

out of the 1988 election, as an indication of the

law, again, of a failure to provide specifics. In

relation to that judgment, I particularly draw
Your Honour's attention to page 7 at about point 4,

"However, it seems to me" and the paragraph below

that about what are and are not allegations of

fact. It is an instance, Your Honour, of the

application of High Court petitions jurisprudence

in New South Wales to the effect that just

asserting that something is unlawful, just

asserting that something is contrary to a section,

is not the same as establishing the facts for the
purpose of invalidating an election and is another

instance in which that is done. At the bottom of

page 7 there are those words:

It does not seem to me that there is any

distinction between a petition merely

asserting that there was a breach of a section

of the Act and a petition which extrapolates

Webster 54 26/7/93

from the section the words of it and says that

there was a breach of that provision.

Those are the submissions of the first

respondent in relation to those sections of the

petition.

HER HONOUR:  Now, can I ask, in view of the somewhat

eccentric formatting of the petition, what is it

that you have not challenged in the petition?

MR McCARTHY:  I have challenged in terms of the notice of

motion,. Your Honour, but I have not argued today

one section, and that is at page 13 paragraph (c):

Provisional votes for the Election in the
Electorate of Macquarie were unlawfully

excluded from being counted.

Might I say this, Your Honour, that I would regard

that as a second wave in terms of a finding. If, as we strongly submit, there is no proceedings to

be had in relation to the roll, that is the 361
point, that if Your Honour is with us in relation

to that, I would move immediately, in relation to

this point, in terms of the provision of evidence,

to show to Your Honour that if the roll is not to

be challenged, then there is nothing in this point

whatsoever in terms of being able to affect -

HER HONOUR:	It is challenged in the notice of motion.
MR McCARTHY:	I have challenged it in the notice of motion

but I have not argued that yet. ·

HER HONOUR: Yes, I see. All right. Is there anything in the petition which is unchallenged, either in the notice of motion or in the argument?

MR McCARTHY:	No, Your Honour.
HER HONOUR: Very well.
MR McCARTHY:	Your Honour, I did not regard it as being as

necessary, in terms of a pleading, to in actual

fact specifically attack each of the prayers of

relief. I thought - - -

HER HONOUR: No, no, I understand that. It is just that I

have had some difficulty following where it is

that - - -

MR McCARTHY:	The petition. Your Honour, I hope that our submissions might have made things somewhat clearer
by stating each of the sections under a heading and
then the paragraph number.  I have tried to make
sense of what it is that is set out here but,

Webster 55 26/7/93

Your Honour, the only parts that I have not
referred to· specifically are the prayers for

relief.

HER HONOUR:  Yes, thank you. You are in a position to put

your submissions, Mr Sackar, are you?

MR SACKAR:  Your Honour, I simply wish to say at this

juncture, in-chief at least, we adopt the substance

of what Mr McCarthy has had to say and without

developing the arguments in detail, the petition in
all respects is either defective because it really
has not specified how the election has been

invalidated or was likely to be affected in

substance. It is not a convenient formula because

it is, after all, when one looks at the Act,

particularly section 355 and other sections, the

very fundamental matter that the petitioner has to

face up to and we say, largely for the reasons

enunciated by Mr McCarthy, that this petitioner has

not done that.

So far as the constitutional question is

concerned, I have had the advantage of reading

shortly Mr Therry-Ward's submission. Having done

so, I would still adopt what Mr McCarthy has said.

Mr Therry-Ward, it seems with respect, has not

enunciated any matter in the submissions that I

have read so far to articulate how it is, for

example, that 361 is a live issue so far as its

invalidity pursuant to the Constitution.

Your Honour, for those reasons, that is all we

wish to say in-chief on the matter.

HER HONOUR: Thank you. Yes, Mr Therry-Ward. Before you

start, you will not finish today, will you?

MR THERRY-WARD:  No, Your Honour.

HER HONOUR: Are you in a position to continue tomorrow?

MR THERRY-WARD:  Yes, Your Honour.

HER HONOUR: Is everybody else?

MR McCARTHY: Yes, Your Honour.

MR SACKAR:  I am not, I am afraid, Your Honour, but perhaps

other arrangements could be made.

HER HONOUR:  Very well, we will proceed now until 4.15 and

can you give me an estimate of how long you will be

altogether.

MR THERRY-WARD:  Your Honour, I would be probably about an

hour or something like that, I should imagine.

Webster 56 26/7/93

Your Honour, a matter of some concern

initially is this question of section 361(1). It

is my submission that that is a matter that has to

be investigated. Basically what we are saying is

that section 361(1) is invalid, particularly in so

far as it says that:

the Court shall not inquire into the

correctness of any Roll.

HER HONOUR:  Are you in a position to argue that in these

proceedings?

MR THERRY-WARD:  Your Honour, this is what I am coming to.

In fact, the written submissions that I have handed up to Your Honour deal specifically with this

particular matter. I am just wondering, however,

whether in fact this is the correct forum for that

to be done.

HER HONOUR: It is, unless I refer it, is it not?

MR THERRY-WARD:  Yes, indeed, Your Honour.

HER HONOUR: Is there a request to - I mean, I could refer

it or state a case, I presume, or I could determine

it and you then have your appeal rights, I imagine.

MR THERRY-WARD: There are no appeal rights.

HER HONOUR: There are no appeal rights. In that case, I

imagine there is very little that could be said

which would persuade me that a request for a stated

case or a reference should be refused.

MR McCARTHY:  I am not sure if my friend is going to make

the application, but I would wish to be heard on

this if - - -

MR THERRY-WARD:  Would Your Honour just excuse me for a

moment.

MR SACKAR:  Your Honour, while that is being done, may I ask

if - I cannot be here tomorrow, as I have

indicated, and my client would like me to be here

if at all possible. I understand that Your Honour

has a similar matter in on Friday in which I am

also concerned and Mr McCarthy is concerned. I

certainly know Mr Therry-Ward is not concerned but

could I ask Your Honour at some appropriate stage

to consider Friday, if it is not an inconvenience

to Your Honour and - - -

HER HONOUR:  How does that affect the other parties? It

does not affect Mr McCarthy adversely.

Webster 57 26/7/93

MR SACKAR:  It does not affect him, because he is here

anyway, as am I, in another matter.

MR McCARTHY:  I will be here in any event. Obviously,

Your Honour, if that is something that could

accommodate, but I am just wondering if my friend

is about to make an application that might

short-circuit something.

MR THERRY-WARD: Could I indicate, Your Honour, that my

instructions are to ask Your Honour to refer the

matter in so far as it -

HER HONOUR: Refer the question?

MR THERRY-WARD:	Yes.
HER HONOUR:	Now, Mr McCarthy wishes to be heard on that and

certainly he should be, but before we go to that,

is Friday as convenient as tomorrow for you?

MR THERRY-WARD:	The short answer to that is no.
MR McCARTHY:	We can go on tomorrow, then.

HER HONOUR: Is it wholly inconvenient?

MR THERRY-WARD:  I could do something about it I guess,

Your Honour. I can fix it up. It is no great

hassle, Your Honour; that can be attended to.

HER HONOUR:  Thank you. Now, you have made your application

on that matter and is it better then to proceed

with the rest of the matters in the notice of

motion or should I deal with Mr McCarthy and hear

his submissions on this?

MR THERRY-WARD:  Perhaps Mr McCarthy wants to say something

about that matter, Your Honour.

MR McCARTHY:  I just say this, Your Honour, that I have

taken out a series of cases which I would hand up	to Your Honour, the principal one being a case of
Crittenden v Anderson, of which there is only one
report which was published 27 years after the event
in the ALJs in 1977, but involved a decision of
Sir Wilfred Fullagar sitting as the Court of
Disputed Returns as a result of the 1949 elections. What I wish to draw Your Honour's attention to is
this, and I put it forward on this basis, that in
that matter there was a challenge to Gordon
Anderson, who had been elected as the Labor member
for Kingsford Smith in the 1949 elections on the basis that he owed allegiance to a foreign power, to wit the Papal State or, in other words, His
Holiness the Pope. Now, this was the basis of a
petition but Sir Wilfred Fullagar regarded it as

Webster 58 26/7/93

just so untenable as not to require any significant

argument. That being so, he dealt with the

petition by himself at first instance.

I hand that up on this basis, Your Honour,

that there are certainly instances where Judges

sitting as Courts of Disputed Returns have dealt

with matters involving alleged constitutional

significance at first instance on their own,
without the necessity to make a reference to the

Full Bench.

Similarly, Your Honour, concerning an issue of

constitutional law and elections, there was also a

case involving the 1984 elections that came before

Mr Justice Wilson of the High Court in a matter

called Cusack. Not the Perkins v Cusack that we

referred to earlier, but another case, and I have

brought that up also, Your Honour, it being a

reference in the ALRs.	Might I hand that up to
Your Honour also?

HER HONOUR: 

Thank you.

MR McCARTHY: 

The point that I draw Your Honour's attention

to in relation to Cusack is just this, that there
were allegations here about the validity of

section 170 of the Reserve Bank Act; there were

allegations concerning the relationship between

constitutional provisions and the Magna Carta and

there were allegations concerning supposed proper

construction of the Constitution. Now, there was

specific reference by Mr Justice Wilson to a

decision earlier by Mr Justice Deane in Skyring's

case where he had said that the Reserve Bank Act

was valid, that the paper money issued by the

Commonwealth is valid and that the Reserve Bank Act

was not overruled or invalidated by the provisions
of the Currency Act and that to allow these matters

to proceed to a further hearing would be to

initiate a process that could only end in futility

and expense and inconvenience to the parties. Your Honour, in my respectful submission, that

is two instances of High Court Judges sitting at

first instance over election matters that have

taken a fairly firm view about so-called

constitutional issues.

Your Honour's powers to sit in relation to

this will be found at 354(3) and my submission is
this, that King v Jones and Sipka and Pearson put

beyond doubt that there is no constitutional point

arising out of sections 30 and 41 of the

Constitution in this matter; that there is no

constitutional standard against which this

Electoral Act is judged; that this Electoral Act

Webster 59 26/7/93

has clearly been stated by full benches of this

Court to be an exercise of section Sl(xxxvi) of the

Constitution by the Federal Parliament and that the policy and the purposes of section 361(1), either in its present form or as section 190 of the old

Act, has been clearly and firmly stated by Courts

of Disputed Returns made up of High Court Judges

going back to Cusack v Perkins and that there is no

constitutional issue involved whatsoever and that

this is a matter that, in our submission, is an

exercise in futility, to argue it in a way that is

being proposed.

For that reason, Your Honour, we would oppose

troubling a Full Bench of the High Court in

relation to the matter.

HER HONOUR:	Yes.
MR SACKAR:	Your Honour, might we just say this, that

Your Honour may, of course, not wish to determine

this in the next 60 seconds, and it may be a matter

which Your Honour would be certainly more assisted

by further argument on Friday. But the substance

of our argument would be along the same lines.

On the face of sections 30 and 41 of the

Constitution, with the very greatest of respect to

my learned friend Mr Therry-Ward, it is at best an

obscure argument as to how proper construction of

those sections in some way can be said to strike

down section 361(1) of the Act. I would certainly

wish to develop shortly on Friday that it really is

not arguable on a plain construction, a plain
reading of those sections, and when one reads 361

in conjunction with those sections, it is not clear

at all - indeed, we would go as far as to say it is

just unarguable - that it does not raise a

constitutional issue. Section 361 has to be looked

at, of course, in the context not just of its own
provisions and those surrounding it, but in the

context of other parts of the Electoral Act,

Parts VI, VII, VIII and IX, all of which contain

provisions regulating the maintaining, monitoring

and inspection and matters of that sort of the

electoral roll. It is not just one provision in

isolation but it is legislative intent and, indeed,

the policy of the Act generally must be looked at

when one surveys all of those provisions.

So, Your Honour, I do not wish, as it were,

that to be the final word I want to say on the

matter, but Your Honour might be assisted by at

least hearing Mr Therry-Ward articulate how it is,

on the construction of sections 30 and 41,

section 361 should be struck down. In my

respectful submission, he will not convince

Webster 60 26/7/93

Your Honour that it is sufficiently or, indeed,

arguable at all so as to refer the matter to the

Full Court.

Your Honour may be assisted by the authorities which His Honour Justice Deane referred to, and the argument generally in the matter of Langer where

there was an attempt, a slightly different matter,
there was an attempt to strike out a section in a

petition but His Honour Justice Deane referred to

va~ious matters there. I have not got a copy of

that, but it is an argument before Justice Deane on

11 March 1993 in matter C2 of 1993. It is a

slightly different point, Your Honour, but we would

say here that it really is not arguable in any
sense and perhaps Your Honour might ask Mr Therry-

Ward to articulate this first before we finally

address Your Honour on the point.

MR McCARTHY:  Your Honour, can I just add one matter before

you go to Mr Therry-Ward. We would rely

particularly in relation to opposition to his

application on Sipka's case and the expression at

152 CLR page 280 that the "effect of s.41 is spent"

were the words that were used by three Judges still

currently on the High Court.

Your Honour, in our respectful submission,

when that is looked at what is being advanced in constitutional terms is the equivalent of a flat

earth theory, if we were dealing with science.

There are matters, in our submission, that, if it is going to be put to a Full Court, would be

matters that would agitate issues that are not

issues, that have been well and truly argued and

settled. If Your Honour pleases.

HER HONOUR:  Mr Therry-Ward, do you wish to say anything at

this stage.

MR THERRY-WARD:  Your Honour, I can address Your Honour for

some time on this question. It is my submission	that it is agreed, there is no dispute about the
fact, that section 41 is spent, but section 41 was,
in a sense, the enabling provision which, to all intents and purposes, brought into existence many
of the provisions of the Commonwealth Electoral Act, in so far as those provisions give persons the
right to vote providing they satisfy certain qualifications.

The basic submission that we put forward is

the fact that if it can be demonstrated, as in my

submission it can be, that this particular

provision of the Act takes away much of the

provision or the - not so much a guarantee because

it is not a guarantee as such, but to use a neutral

Webster 61 26/7/93

expression - guarantee as originally given by

section 41 and then transferred to the Electoral

Act, if there is something in the Act that demonstrably takes away what the Constitution

wanted to give to the people, then in so far as the

Act does that, the Act is invalid. And we say that

section 361(1) - - -

HER HONOUR:  You do not base your constitutional challenge

entirely on sections 30 and 41?

MR THERRY-WARD:  No, Your Honour, not at all. The point we

make is that sections 30 and 41 were, in a sense,

enabling provisions under the Constitution which

brought into existence an Act which originally - I

cannot remember the name of the original Act, but
that then became the Commonwealth Electoral Act,

and in to the Commonwealth Electoral Act there has

been transferred and there still exists the

overriding shadow of sections 30 and 41. And we do

not rely on sections 30 and 41 per se, what we are
submitting is that the intentions demonstrated by
sections 30 and 41 of the Constitution are

inherent, are built in to the Electoral Act, but

because of sections such as 361(1), those

provisions are in fact, to various extents, denied.

HER HONOUR: Well, you would like to elaborate that further

on Friday?

MR THERRY-WARD: Yes. That is basically the - - -

HER HONOUR: Well, you may elaborate that further.

MR THERRY-WARD:	Thank you, Your Honour.
HER HONOUR:	Would it be more c0nvenient for you to begin

early on Friday morning or to have a later marking?

MR THERRY-WARD:  Your Honour, if it is going to be Friday, I

would prefer the morning myself, but I have no firm

views about it.

HER HONOUR:  Yes. We will list this matter first, I think,

in that case.

MR McCARTHY:	As Your Honour pleases.
HER HONOUR:	I will list it for 9.30.
MR THERRY-WARD:	If I can just clarify this, this is just to

deal with this - - -

HER HONOUR:  No, certainly not. We will hear your argument

as to what should be done with relation to section

361(1), but we will hear your argument as to the

Webster 62 26/7/93

various other matters which are involved in the

notices of motion.

MR THERRY-WARO:	Yes, thank you, Your Honour.
HER HONOUR:	Is that clear to everyone? We will adjourn

this matter until 9.30 on Friday next, which is the

30th.

AT 4.24 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 30 JULY 1993

Webster 63 26/7/93