Webster v Deahm

[1993] HCATrans 208

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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

Webster 64 30/7/93

Second Respondent

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 1993, AT 9.33 AM

(Continued from 26/7/93)

Copyright in the High Court of Australia

HER HONOUR:	The appearances are as before, are they?
MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	Yes, Mr Therry-Ward.
MR THERRY-WARD:	Your Honour, it was my intention to make

submissions to Your Honour this morning in respect

of three matters: first of all, the

particularization of the petition; secondly, the

argument in respect of section 361(1); and thirdly,

Your Honour's power and so forth to refer that

argument to the Full Court.

In respect of the third matter, the reference

to the High Court, my learned friend and I have had

a discussion about it and there is no real point

about it because it is a matter ent.i.J:::ely for

Your Honour's discretion·, whether you refer it or

whether you do not, so it seems to me that there is

no need for me to make any submissions to you in

respect of that matter. Unless there is some

point -

HER HONOUR:- You should answer, should you not, the

submissions that it is entirely unarguable.

MR THERRY-WARD:  Very well, Your Honour. I will do that.

HER HONOUR: And indicate some basis on which the argument

is to be advanced.

MR THERRY-WARD:  Indeed. So that, Your Honour, in that case

I will deal first of all with the particularization of the petition, then deal with 361(1), and then

Your Honour's powers to.refer a matter such as this

to the Full Bench.

HER HONOURi Thank you.

MR THERRY-WARD:  Your Honour, both respondents take the

position that the petition is not in correct form
because it does not particularize sufficiently in
accordance with section 355(a) and 355(aa).

Section 355(a) simply is a requirement that:

the facts relied on to invalidate the election

or return -

are to be set out and (aa) says that:

subject to subsection 358(2), set out those

facts with sufficient particularity to
identify the specific matter or matters on

which the petitioner relies as justifying the

grant of relief;

Webster 65 30/7/93

Section 358(2) says that:

The Court may, at any time after the filing of

a petition and on such terms (if any) as it

thinks fit, relieve the petitioner wholly or

in part from compliance with

paragraph 355(aa).

That particular provision may or may not become

important as time progresses.

If Your Honour looks at the authorities

dealing with particularization, there are three

cases that, in my submission, are reasonably

relevant. The first is Nile v Wood, 76 ALR 91.

This case deals with a petition that was put forward by the petitioner, of course, against

Mr Robert Wood and it does appear that the petition

was doomed from the start in many respects. Not

the least of it was the fact that there was no

prayer for relief, but quite apart from that, it is

quite obvious, in my submission, that what the

petition does is in no way comply with

section 355(a) or (aa) under any circumstances

because it sets out bare details about Mr Wood,

without in any way linking those details to the

sort of relief that is required. For example, in

that petition there was an allegation that he took

some sort of action against friendly vessels, and

the petition does not in fact identify the precise

offence that is. referred to or were intended to

refer to. In other words, there is no

particularization of that. In other words, there

are bare assertions but no particularization.

In another of the paragraphs there is a

statement made which simply invites the Court to

reach a conclusion, without setting out any facts.

So that in that case, what transpired was that

there was a petition setting· o.ut bare facts but no

particularization. That, of course, is in stark

contrast to the petition with which we are dealing

here today because, in each case, there is an

allegation, followed by at times quite - indeed,

pages on two or three occasions - pages of

particularization.

Turning to the case of Cole v Lacey, (1964)

112 CLR 45, this was a case which dealt with the

fact that the number of votes rejected as being
informal for the election of senators in Tasmania

was apparently considerably lower than in other

States and the petitioners sought to take that

point. The headnote said:

Webster 66 30/7/93

that an allegation that a substantial number

of informal votes was admitted and counted
would satisfy the requirements of s.185(a) -

and as I understand the situation, Your Honour - my learned. friend might correct me if I am wrong - but

185(a) at that time is now 355(a).

At page 49 of that judgment Mr Justice Taylor,

in a Court of Disputed Returns, said that:

I am of the opinion that the respondent's primary contention must prevail for I am

unable to see that any facts are alleged in

the petition which, if established, would

prove or tend to prove that there was any
irregularity in the scrutiny or in the return.

Your Honour, the relevant words· in that passage are the words "if established". In other words, what

His Honour is saying is, what he is postulating is

there has to be an allegation in the petition with

sufficient particularity to demonstrate what it is

that is being claimed. Then there is· a further

step. You then go forward and you establish, if

you can, the matters contained in the allegations. of all, whatever the allegation is, then

particularize it, and then the third step is by way

or evidence or otherwise to establish what it is

that is being set up in the petition in that way.

Once again in seems, in that particular petition,

on a reading of the judgment, that the petition

contained a number of bald assertions without any

or any sufficient particularization.

HER HONOUR:  It was more a linking up, was it not?

MR THERRY-WARD~ That· is right, that is so, Your Honour.

HER HONOUR:  And that is the complaint that is made against

you, is it not, that what is asserted as fact is

not linked up to the actual voting or the scrutiny

or the return?

MR THERRY-WARO:  That is indeed the situation .. However, if

Your Honour has regard to section 363 of the Act,

this deals of course only with illegal practices,

but section 363 says:

When the Court of Disputed Returns finds

that any person has committed an illegal

practice, the Registrar of the High Court

shall forthwith report the finding to the

Minister.

Webster 67 30/7/93

So that if there are in fact allegations in the

petition that are particularized and demonstrate
that there have been illegal practices or whatever,

then the inference is quite clear, that what is

intended is that thereby the outcome of the

election may well have been affected. That,

indeed, Your Honour, is the purport of the

petition. That is its intent, to establish that

fact, and that is demonstrated, inter alia, by the
form taken by the prayers for relief, and therefore

the linking up can be found, apart from referring

to the particularization, to the prayers for relief

that are sought, in my submission.

In Cameron v Fysh, (1904) 1 CLR 314, once

again this was a case in which a petition was

filed, it made certain allegations about the

election of a person, and the Chief Justice

Mr Justice Griffith in this case referred ta the allegations in the petition and took the point that

if oral evidence - he did not use the word "oral"

but in my submission this is what he meant.

if evidence -

and it is my submission that he meant oral evidence

and, indeed, documentary evidence as well, of

course -

had been tendered to prove the prevalence of such practices to such an extent as probably

to have affected the result of the election, I

should have allowed those paragraphs to be

treated as particulars of the general

allegations of undue influence affecting the

election.

But he then goes on to say that there was, in fact,

a total lack of such evidence. It seems,

Your Honour, that what happened in that case was

that first of all he struck out certain complaints

in the petition, the petition then went to a

hearing, and he demonstrated that in any event, notwithstanding the fact that he had struck out some paragraphs, the evidence did not support those

paragraphs anyway.

Now, I then turn to the petition itself, first

of all to page 2 of the petition at point 5.

During the Election the electoral rolls

used at the Election were not marked in

accordance with the provisions of the Act.

HER HONOUR; And that is the allegation of fact, is it?

MR THERRY-WARD: That is the allegation of fact.

Webster 68 30/7/93

HER HONOUR:	The petition has got somewhat out of kilter.
MR THERRY-WARD:	Your Honour, how it happened I just cannot

imagine. I know that the day before it was filed

it was in proper order but then it was altered

slightly on the day of filing - - -

HER HONOUR:  I can imagine how it happened, but I just want

to be clear in my mind.

MR THERRY-WARD:  So the allegation is in fact called 3:

During the Election the electoral rolls used

at the Election were not marked in accordance

with the provisions of the Act.

And then the particularization is that:

Cameron John Webster ••••• cast hia vote •.•.. He

subsequently received a notice from the

Australian Electoral Commission entitled

"Apparent Failure to Vote" -

and that is the particularization which is relied

on to support the allegation .•

The next allegation is at the bottom of page 2

which is:

The First-named Respondent was guilty of undue

influence during the conduct of the Election.

As I understand the situation - - -

MR McCARTHY:  Your Honour, just before my friend goes on,

that is paragraph 14 of the submissions that I

handed up the first time.

HER HONOUR:  Yes. The difficulty, of ·course, with 3 and (a)

again is linking it to some irregularity in voting,

is it not?

MR THERRY-WARD:  The irregularity in my submission,

Your Honour, is demonstrated by the particulars.

It speaks for itself. Either the roll has not been

correctly marked, in other words his name has not

been marked off, or who knows?

HER HONOUR:  Yes, but it does not go to the other step, does

it, to say that individuals voted more than once or

that some people were denied a vote when they were

entitled to a vote.

MR THERRY-WARD:  It goes to the second point, in my

submission, because it may well be that he voted

but - - -

Webster 69 30/7/93

HER HONOUR:	You allege he voted.
MR THERRY-WARD:	Yes, that is right, but of course it is all

a matter of evidence, I suppose, Your Honour, in
due course. Say, for sake of argument, that

Mr Cameron Webster gives evidence that he voted.

Then what we do not know is, was his vote not

counted or was it simply a case of -

HER HONOUR:  But again, you see, what you are doing is

inviting speculation when it is necessary, is it

not, to show that in some way there was some

irregularity in voting or in counting which was

likely to have affected the result.

MR THERRY-WARD:  Yes. Your Honour, in this particular case,

Mr Alasdair Webster, the petitioner, lost his seat

by 165 votes. Now, it is probably trite to say

that one vote might be sufficient,. with all the

other votes that are in dispute, to get the relief

that he requires, but the fact is, Your Honour,
that one of the problems here is the fact that we

cannot establish what it is that in fact occurred to Mr Cameron Webster's vote until we inspect the rolls. Realistically, it seems, we cannot inspect

the rolls until we subpoena them, and·it may be

then that we might be caught by section 361(1),

depending on what we find in respect of this

particular one vote.

So that it could, in due course, be discovered

that the outcome of the election might be affected,

albeit by one vote, depending on what is discovered

after the rolls are subpoenaed and inspected and,

providing we are not caught by section 361(1),

providing the question raised - the contentions

raised about 361(1) have not first been dealt with.

Turning to ( b) at the bottom of page 2:

The First-named Respondent was guilty of undue

influence during the conduct of the Election.

If I read the situation correctly, my learned

friend has not, in fact, complained about that.	I
might be wrong about that.

MR McCARTHY:  Yea~ I have. It is paragraph 13 page 8,

Your Honour.

HER HONOUR:  Yes.

MR THERRY-WARD: There are three complaints together in this

instance, that is the undue influence, illegal

practices and false and/or untrue statements. The

particularization is given on pages 3, 4, 5 and 6.

In my submission, Your Honour, whether it in due

Webster 70 30/7/93

course be found that the three allegations are

established is one thing but, in my submission,
certainly in respect of those three allegations,

there are three to four pages of particularization

going particularly to the allegations which, if

established, if one has regard to the words used in

one of the authorities, would show that each or two

or three of those allegations have been in fact

established. So that, in my submission, the

particularization given there is sufficient for the
purposes of the section, that is 355. Whether, in

fact, the allegations are established in due course

is another question.

Now, turning to the next allegation, which is

on page 6 at point 6, (vii):

to the taking of votes from

That, contrary to Section 224 and/or with respect

hospital patients the said legislation was not

complied with.

Once again, the particularization ia given in detail in respect of what happened to Mr Bradbury.

What is being demonstrated again is that if, in

fact, what he says is established, then the

allegation would be established. In other words,

if evidence is given that satisfies the Court that

in fact the allegation, as the allegation says,

that the Act was not complied with, then that would

establish that particular allegation.

The next allegation is (c) on page 7 point 5.

(c) 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:

The particularization is that:

There were between 100 and 370 instances where

the roll was marked more than once for

particular voters.

Once again, the allegation is clear enough. The

particu.l.ars are clear enough. What my learned

friend, as I understand, says, well, what has to be

done is to set out the names of these people who

marked the roll - who voted more than once. Once

again, Your Honour, I have in my mind, of course,

what the evidence is going to be about this and it

is on the bar table at the present time. The

evidence will demonstrate that this situation

existed, but who the names are - once again, what

the names actually are we cannot tell till we look

Webster 71 30/7/93

at the rolls and find out.	And that is the
difficulty.

Your Honour can appreciate the fact, of

course, that being quite simplistic about it, there
are a number of voting booths, each booth has a

copy of the roll, and it involves an analysis of

all of these rolls to determine who it is who voted

twice - or more than one, anyway. So that once

again, in my submission, the allegation is clear

enough; the particularization is clear enough; it

goes as far as we can go without in fact going to

the rolls. So that that would be, in my

submission, in so far as it could be said that we

have not complied with section 355(a) or (aa) - and

it is my contention that we have in any event -

because if we in fact established evidence - if we

produced evidence in accordance with the
particu.lars., we would then establish the ground of

complaint. In so far, though, as my learned

friend's point -

HER HONOUR:  You have got to deal with 362(3), have you not,

in that regard?

MR THERRY-WARD:  Yes, that is right, Your Honour. That

certainly would - in fact, it is an illegal

practice, of course.

HER HONOUR:  Yes, but what was put against you is that there

is nothing to show either that the election was
likely to be affected or - and both must be

established - establish that it is just that the

candidate should be declared not to be duly

elected.

MR THERRY-WARD:  Yes, Your Honour. Once again, in my

submission, the link is to be found in the prayers

for relief. The prayers refer back, in my

submis.sion, to. the grounds. The allegations set up

what the complaints are and are particularized and

the prayers ask the Court what is required in
respect of the evidence as a whole.	And, in my
submission, that is the link.

In so far as it might be suggested that we

have not complied with 355(a) and (aa) in that
particular case, because we have not been able yet

to see the rolls, and even if we did, because we

might be caught by 361(1), then at this time I

would be making a submission to Your Honour that we would be - entitled is not the right word, but in a

position to make a submission to Your Honour in

accordance with section 358(2), that is that we

would seek Your Honour's leave to be relieved from

complying in whole or in part with 355(aa) because

of the particular circumstances that we find

Webster 72 30/7/93

ourselves in in respect of that particular ground.

So in so far as it could be suggested that we have

not complied, then it would be my application that

Your Honour would apply the provisions of 358(2) in

this particular allegation.

Turning to the next allegation, that is:

that, contrary to section 329 of the Act, the

First-named Respondent caused printed material

to - - -

HER HONOUR:  Mr Therry-Ward, I am somewhat concerned by the

first particular, "There were between 100 and 370

instances". Is there some basis for that and, if

so, why the imprecision?

MR THERRY-WARD:  Your Honour, I do not know, and can I just

say thia: the reason r do not·know is because. when

the petition was drafted, that was the best that

could be done with the instructions at the time.

Since then, further inquiry has been made and I can

tell Your Honour - would Your Honour just excuse me

for a moment - apparently those figures were given

to Mr Webster by the Divisional Returning Officer

and all I can say, Your Honour, is they were the

figures he gave Mr Webster, we have put that in the

petition. Doubtless, it cannot be clarified until

there is an examination of the rolls to find out

whether it is 100 or 370 or some figure in between.

That ia the problem about that, Your Honour.

Turning to the next ground, that is:

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 -

this is, had the Act not been changed, a classical

situation that originally arose under Evans v

Crichton-Browne but, in any event, be that as it

may, once again the particularization of that is

given on pages 7, 8 and 9.

HER HONOUR:  Do you say that the Act has been changed in

some relevant respect since Crichton-Browne?

MR THERRY-WARD: It is my submission, Your Honour, that

section 329, in fact, has been changed in a

material particular since Evans v Crichton-Browne

was decided.

HER HONOUR:  Can you tell me about that?

Webster 73 30/7/93

MR THERRY-WARD:  Your Honour, I do not have Crichton-Browne

here unfortunately at the moment -

HER HONOUR:  No, it is the change to the Act that I am

interested in.

MR THERRY-WARD:  The Act as it was originally is in fact set

out in Crichton-Browne and the section was then

changed in 1983.

HER HONOUR:  We can make a copy of Crichton-Browne available to you, if that would help.

MR THERRY-WARD:  Thank you, Your Honour. I would be

indebted to Your Honour for that.	The section is
329 and - - -

HER HONOUR:  It was previously section 154, at page 169

itself.

MR THERRY-WARD:  Yes, that is so, Your Honour. Maybe, in

fact, it was originally section 161. Whatever it

was, anyway, it is set out in the headnote,

Your Honour.

"In addition to bribery and undue influence

the following shall be illegal practices:

... (d) Printing, publishing or distributing

any electoral advertisement, notice, handbill,

pamphlet, or card containing any

representation of. a ballot-paper or any

representation apparently intended to

represent a ballot-paper, and having thereof

any directions intended or likely to mislead

or improperly interfere with any elector in or

in relation to the casting of his vote;	(e)
Printing, publishing, or distributing any electoral - - -

HER HONOUR:  And the critical words in the argument against

you are "in relation to the casting of a vote", and

those words appear in the original, save to the

extent that, in common parlance, they are gender

biased.

MR THERRY-WARD:  Yes, that is so. Your Honour, perhaps the

relevant words are to follow:

Printing, publishing, or distributing any

electoral advertisement, notice, handbill,

pamphlet, or card containing any untrue or

incorrect statement intended or likely to

mislead or improperly interfere with any

elector in or in relation to the casting of

his vote;

Webster 74 30/7/93

HER HONOUR:  What relevance do you say that difference has

in this case?

MR THERRY-WARD:  It is my submission that what the section

now says is thi.s:

A person shall not, during the relevant period

in relation to an election under this Act,

print, publish or distribute, or cause, permit

or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in

relation to the casting of a vote.

Now, Your Honour, it is my submission that the reframed section now does not mean what it was said

to mean as it was in Evans v Crichton-Browne.	It
is my submission that as it now appears in i:ts

redrafted form, 329(1) now means that what is

improper, what is illegal, what is prohibited by

the section, is the doing of any thing that is

likely to mislead or deceive an elector in relation

to the casting of a vote, in other words, not just
the writing of the vote on the form. but the doing
of any thing that affects his mind that

subsequently alters or in some way affects his

judgment or alters his judgment in respect of the

casting of a vote.

Now, in· Evans v Crichton-Browne, of course,

the - - -

HER HONOUR:  Were not the words "in relation to the casting

of his vote", which are relevantly transposed now
to "in relation to the casting of a vote", the

critical considerations which led to the decision

in Crichton-Browne? ·

MR THERRY-WARO: Yes, Your Honour. The Court there held

that what those words meant was the writing of what

he wanted to do on the voting form.

HER HONOUR:  Why would they not bear the same meaning? On

ordinary canons of construction, if you replicate

the words - and the only difference is the gender

effect, if you like - they are usually taken to

mean exactly what a court has held them to mean on

a previous occasion.

MR THERRY-WARD:  Your Honour, the submission I make is that

because of the change, just not to alter the gender

effect but the way in which the words of the
subsection have been amended, demonstrates arguably
that the words "in relation to the casting of a
vote" do not, in fact, have the same connotation as

they had in 1980.

Webster 75 30/7/93

Now, Your Honour, in any event there is the

allegation; the particularization is there; and it

is my submission that that complies with the

section.

The next allegation is on page 9 at point 8:

The first-named Respondent was party to a

document handed out at polling places on the

13th of March, 1993, knowing such document was

likely to mislead or deceive some voters.

That is the document that, in fact, was tendered by

my learned friend:

The document stated "Thinking of Voting

Democrat? ... Vote Maggie Deahm."

Woul.d Yo.w: Honaw: just excuse me for a moment

please?

HER HONOUR:	Yes.
MR THERRY-WARD:	Your Honour, it was intended to have the

original of that document here today but it is not,

unfortunately. However, Your Honour·has seen a

photocopy of it.

HER HONOUR:  Yes. You do not suggest that there is any

relevant difference, do you?

MR THERRY-WARD: On.ly in colour.

HER HONOUR: In colour. Yes.

MR THERRY-WARD:  Would Your Honour excuse me? I am

instructed, Your Honour, that the reason for the

relevance of the colour is that the "Thinking of

Voting. Democrat? ... Vote Maggie Deahm." farm was

yellow as was the Democrat farm that was handed

out. That is the relevance of that. Indeed that

is the reason why the allegation is that:

The colour and size of the document and the

variation in print size was such that it was

misleading to both booth workers and voters

alike, as to the. name. of. the Democrat

Candidate and as such was in breach of

Section 329(1) of the Act.

And again, Your Honour, it is my submission that

that complies with the section.

HER HONOUR:  Yes. Could I just take you back? Now, again,

do you say	that it is not necessary to be
misleading	or deceiving in a way that actually
relates to	the vote that is cast, so that it

Webster 76 30/7/93

extends to a case where it influences the formation

of opinion?

MR THERRY-WARD: In this case?

HER HONOUR:  Yes. ..

MR THERRY-WARD: Yes, Your Honour.

HER HONOUR:  Assume for the moment that I am against you on

that - and I am not suggesting I am, but in the

event that I am against you on that - what do you

have to say about this document being likely to

mislead or deceive in the Crichton-Browne sense?

MR THERRY-WARD:  Your Honour, these documents are handed out

for the purpose of - say, for the sake of argument,

in thia particular. case, L go to the pol.ling booth

with the intention of voting- Democrat and ram

handed a document, as I understand my instructions,

virtually identical document to the Democrat

document that says - - -

HER HONOUR f' But it is not: a How to Vote ticket.

MR THERRY-WARD: Quite so, quite so. The fact is,

Your Honour, it is intended, it would not be done

otherwise, surely it is intended to do something,

it is intended to influence the voter. It is

intended to influence the voter in connection with

the casting of his vote- and· it is done in this way,

it says:

"Thinking of Voting Democrat? ... Vote Maggie

Deahm."

So, I. am thinking of voting Democrat and so I am given· this form that says. ••TtJ:tn:ki.ng of Voting

Democrat?	.•.•. Vote Maggie Deahm .... So I go into
the

HER HONOUR:	But that is not what it says.
MR THERRY-WARD:	I do not have a copy of it here with me at

the present time. Oh, yes. In any event,

Yow: Honour,. it ia my submi as.ion. that some people

do not read every word on a document such as that
and it could have the effect, nevertheless, if

somebody takes that in to the booth with them it

may well be that they could be confused and could

have the effect of affecting their judgment and, in

particu.l.ar, in connection with the casting of their

vote.

HER HONOUR: r understand how you put it. There is another

aspect, is there not, to this allegation and that

is, do you need to establish, assume you are right

Webster 77 30/7/93

on one or other of those bases, that people did in

fact vote that way thinking that they were voting

Democrat?

MR THERRY-WARD:  Yes.

HER HONOUR: Well, where is the allegation of that?

MR THERRY-WARD:  Your Honour, it is my submission that that

would be a matter of evidence. Once again, the

allegation is made, it is particularized - - -

HER HONOUR:  But there is no allegation that people in fact

did vote that way in reliance upon the exhibit.

MR THERRY-WARD:  Your Honour, the particularization says

that it was misleading to both booth workers and

voters alike as to the name of the Democrat

candidate and as such was in breach of

section 329(1) of the Act. So that, Your Honour, what we would have to establish is that, first of

all, it was in breach - - -

HER HONOUR:  Well maybe you do not have to establish what I

was suggesting, that it in some way did affect the

result - perhaps I was in error there.

MR THERRY-WARD:  I think the relevant words, Your Honour,

are "likely to mislead or deceive".

HER HONOUR~ But it .i.s. an illegal practice, is it not?

MR THERRY-WARD:	Yes.
HER HONOUR:	So we come back to 362(3)?
MR THERRY-WARD:	Yes.

HER HONOUR: Yes. Well, you say that is all linked up again

in the prayer for relief?

MR THERRY-WARD:  Yes.

HER HONOUR:  Yes, I understand that. You do not say

anything else about this particular allegation?

MR THERRY-WARD:  No, Your Honour. Then going on to page 10

at point 3 there are, in fact, two allegations

together, they are called (c) and (d).

(c) That there was a breach of Section 106 of

the Act in that insufficient attention was paid by the Second-named Respondent or his

officers, agents or staff to ensuring that

persons not entitled to enrol for the

electoral division of Macquarie, did not, in

fact, enrol.

Webster 78 30/7/93

And that they failed:

to satisfy themselves adequately that

claimants for enrolment in the Electorate of

Macquarie were entitled to be so enrolled.

And then the particulariration is given on the

bottom of page 10, on the top of page 11, and

shortly, what is claimed, is that:

Persons voted who are not entitled to vote -

That people:

who had died up to more than two years prior

to the date of such election;

That people:

who were on the rolls as having lived in

residences that did not exist;

And:

who were recorded in the rolls as having their

places of residence at vacant blocks of land;

And other persons:

who did not exist at all;

This, Your Honour, falls squarely into 361(1),

and what we are saying is that this Act

constitutionally has no power to restrict the Court

from inquiring into the correctness of a roll, and

here are good reasons why that is so. I revert to

my original contention, Your Honour, that

section 361(1) of the Act is in direct conflict
with the intention of section 41,. in particular, of
the Const:it:ut:ion and of course it is that

section 41 per se is spent, but its intention lives

the intention of section 41, in my submission, that

is made by any subordinate legislation to take away in the Act itself. To the extent that any attempt

legislation is invalid.

So that those two allegations and the

particul.ars. therein provided are, in fact, asking
the Court to inquire into the correctness of the

rolls in the manner in which the particularization

is given.

HER HONOUR:  Can I ask you, again, do you say you do not

have to link that up for the purposes of

subsection (3)?

MR THERRY-WARD:  Of 362, Your Honour?

Webster 79 30/7/93

HER HONOUR:	Yes.
MR THERRY-WARD:	I do not know, in my submission,

Your Honour, whether this, in fact, falls - these

particular allegations in fact fall within the

concept of 362(3).

HER HONOUR:  They would only be relevant, would they not, on

the basis that people voted who were not entitled

to vote?

MR THERRY-WARD:  Yes, indeed. Certainly they were, yes,

they were illegal practices.

HER HONOUR:	Yes.
MR THERRY-WARD:	But whether they be illegal practices or

not, the fact is that if people voted in that

manner, then quite obviously, in my submission, the

outcome of the election would be likely to be

affected, and probably was affected if those facts

were established.

HER HONOUR:	Yes, except we have no numbers in this regard too. It is unlikely 100 and 370 -
MR THERRY-WARD:	It would appear at this stage that the

persons falling into the categories mentioned in

these two grounds of complaint - would Your Honour

just excuse me for a moment - number 416.

HER HONOUR:  Is there an allegation that they did vote?

MR THERRY-WARD: Yes. So, Your Honour, these two

complaints, of course, are directed to the second-

named respondent and as I submitted previously, it

is bound up completely with, in a sense, the

outcome of 361(1), what finally is decided about

that ..

HER HONOUR:  Let us assume you could say the result is

likely to be affected. What do you then have that

goes to "it is just that the candidate should be

declared not to be duly elected"?

MR THERRY-WARD: Say, for sake of argument, that it is shown

that 416 people, in fact, fell within those

categories - for simplicity. Say, for sake of

argument, it could be demonstrated - and I am not

saying that this is the case, but just to give an

example - to show that 166 people, keeping in mind

that Mr Webster lost his seat by 165 votes, that

166 people were recorded in the rolls as having

lived in residences that did not exist, or were

vacant blocks of land. Well then, by itself, in my

submission, that proves, that demonstrates, that

the outcome of the election was affected.

Webster	80	30/7/93
HER HONOUR:	Not necessarily.	You see they may all have

voted for your client.

MR THERRY-WARD:  Oh, they may well have. That we will never

know.

HER HONOUR:  He may still have los.t by 165, notwithstanding

that loo people who were not entitled to vote voted for him.

MR THERRY-WARD:  Yes. The problem is, Your Honour, that

people who were on the rolls as having resided in

the electorate for the required month prior to the
closing of the rolls, if those who fell into the

categories particularized here, they must have got

on there somehow.	The real inquiry is how did they
get on.	Your Honour, putting it in a nutshell, I

guess it really means that there would have to be,

to that extent at any :cate·, a witch-hunt to find

out how and why people who recorded their

residences as vacant blocks of land came to be
enrolled. Then the second respondent doubtless

could say, "We have no way of checking this, we

just go by the papers that are supplied by the

proposed voter... That may wel.l be so, and assuming

we get around the provisions of 161, if there be an

inquiry that demonstrates that the outcome of the

election is likely to be affected, then there is

the solution, there is the proof. Because we do

not have to show that the election was affected,

but that it was likely to be affected.

HER HONOUR: Yes.

MR THERRY-WARD:  So, Your Honour, turning to page 11, the

next complaint is called - it is called nothing, in

fact. It starts off:

Sections 30 and 41 of the Constitution have

not been complied with in the election fo:c the

electorate. of Macquarie.

PARTICULARS: 

(a) The guarantee provided by the Constitution
of one vote per Elector has not been complied

with du.ring the said E·lection.

HER HONOUR: Well you do not actually rely on sections 30

and 41.

MR THERRY-WARD:  I do not actually rely on sections 30 and

41, Your Honour. Certainly that could have been

phrased better than that, but reading - - -

HER HONOUR:. Shall I treat the - I daresay you say that the

allegation is what appears as pa:cticular (a):

Webster 81 30/7/93

The guarantee provided by the Constitution of

one vote per Elector -

MR THERRY-WARD: Yes, that is so. Of course, Your Honour, I

am mindful of an authority that says that the

Constitution does not, in fact, guarantee anything.

What it does is to make a provision, and the nub of

the situation is, however, that while it does not

do a positive thing, that is to guarantee anything,

no subordinate legislation can take away a person's

right to vote.

HER HONOUR: That is a somewhat - that does not go to

section 261, does it, in a sense? It does not link

up with the suggestion that there were 416 people

who voted who should not have voted.

MR THERRY-WARD: In this particular allegation?

HER HONOUR:  Yes.

MR THERRY-WARD: Well it does by analogy, I suppose,

Your Honour. In my submission, if the particulars given are that the provisions of the Constitution

that have been incorporated in the Act, the one

vote per elector, has not been complied with during

the said election, then by analogy it must refer

back to the previous ground. But the danger, in my
submission, Your Honour, is where you have persons

voting who have no right to vote, or where you have persons voting illegally in several different ways, in a sense that can be seen as detracting from the

vote of authorized voters, legal voters. In that

sense one can say, in my submission, that those

illegal votes take away the votes of illegal

voters.

HER HONOUR: Yes.

MR THERRY-WARD: Well, then, Your Honour, at the bottom of

page 11 is ground (b):

That Section 99(5) and 106 of the Commonwealth

Electoral Act is invalid in that it is

inconsistent with other provisions of the same

Act.

HER HONOUR:  Can I just go back so as to under.stand? So-

called particular (a), that really, so far as you

are concerned, links up with the challenge to the

roll?

MR THERRY-WARD: Yes, Your Honour.

HER HONOUR:  Do you say it has any other relevance?

Webster 82 30/7/93

MR THERRY-WARD: Only to the extent that I have made

submissions to Your Honour about -

HER HONOUR:  Well, let me make it clear: I do not

understand you to have submitted that it has any

relevance independent of the challenge to the

validity of the provision which limits the

challenge to the roll.

MR THERRY-WARD: That is the main relevance.

HER HONOUR:  I do not understand it to have any other

relevance.

MR THERRY-WARD: That is the relevance, Your Honour.

HER HONOUR:	Thank you.
MR THERRY-WARDt	Now, Your Honour, sections 9-9(5) and 106.

are invalid and inconsistent with other provisions.

Section 106 of the Commonwealth Electoral Act is

particularized, these are the particulars that are

given:

provides that the name of any person who has
been placed on a roll for a Division by means
of any false statement can be subsequently

removed from that roll. Section 99 provides

that the validity of any enrolment shall not

in any case be questioned on the ground that

the person enrolled has not in fact lived in

the subdivision for a period of one month. These two provisions are inconsistent with

each other, both sections are, therefore, of

no effect; that since the election for the

seat of Macquarie was based partly on this

invalid legislation the election for that seat

was also invalid.

HER HONOUR:  Does that also link up with the challenge to

the roll?

MR THERRY-WARD: Yes, Your Honour.
HER HONOUR:	Does it have any independent relevance besides

that?

MR THERRY-WARD: Oh well, Your Honour, yes. In my

submission, in this way, that quite apart from the

challenge to the roll, and certainly that is of

fundamental importance, the challenge to the roll

in this particular case. Certainly in this case as

well, though, there is the simple question of
looking at the two provisions and analysing them

and saying, or not saying, that the two provisions

conflict.

Webster 83 30/7/93

HER HONOUR:  All right, so one has to give way to the other.

It is as simple as that.

MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	Does that do any more than take you to the challenge to the roll?

MR THERRY-WARD:  No. The question of looking at

section 99 -

HER HONOUR:  It perhaps, depending which one gives way to

the other, it limits whether your challenge is X or

half-X.

MR THERRY-WARD: That is right.

HER HONOUR:  Yes. I can take it that, again, it has no

independent relevance besides that, yes.

MR THERRY-WARD: That is the situation, yes, Your Honour.

Once again, in (b), in the middle of page 12:

Persons voted in the Election in the

Electorate of Macquarie who were not entitled

so to vote.

PARTICULARS:

(a) At least 40 persons who were enrolled to

vote for the Election were enrolled in the

Electorate of Macquarie in circumstances where

they had resided in the Electorate for a
period less than one month prior to the date

of enrolment contrary to Section 99(1).

Once again, Your Honour, that is square - - -

HER HONOUR: All right. Are they people who are included in

what you have said about the 416 people, if I can

use your number?

MR THERRY-WARD:  No, no. The 416 people, no, Your Honour,

these are additional to those.

HER HONOUR: Additional, all right. Well, that is the

relevance of 95(5) and 106.

MR THERRY-WARD: That is so, Your Honour.

HER HONOUR:	Thank you.
MR THERRY-WARD:	Then Your Honour goes to the bottom of

page 12, the allegation is that:

The Commonwealth Electoral Act condones

illegal activities.

Webster 84 30/7/93

PARTICULARS:

Section 99(5) prohibits the questioning of the

enrolling of a person to vote in circumstances

where such enrolment has been obtained

contrary to section 99(1); that such

illegality existed in and during the conduct

of the Election for the seat of Macquarie and

that, therefore, the Election for that seat

was void.

HER HONOUR:	I do not follow that at all.
MR THERRY-WARD:	Your Honour, at this precise moment I do

not either. Would Your Honour just excuse me for a

minute, please? Section 99(1) says this, that:

Any person qualified for enrolment, who lives

in a Subdivision, and has so lived for a

period of one month last past, shall be
entitled to have his or her name placed on the

Roll for that Subdivision.

Then, interestingly, 99 ( 5) says.:

The validity of any enrolment -

and it, of course, without saying it, refers back

to subsection (1) -

shall not in any case be questioned on the

ground that the person enrolled has not in

fact lived in the Subdivision for a period of

one month.

So in other words subsection (1) says to be

qualified for enrolment you have got to have	lived
in the subdivision for one month, but
subsection (5) says that if you have, not, it	does
not matter because it cannot be questioned.	So the
brief - - -

HER HONOUR:	Does that do any more than go to the detail of the argument that the roll was wrong in certain
respects, and the extent of its wrongness depends
upon the effect of section 99(5).

MR THERRY-WARD:  Yes. So once again it comes back to the

same old problem. Section 361(1) is invalid.

Your Honour, this particular allegation will be the

subject of further submissions that I will be

making to Your Honour after I deal with the

petition as a whole. (c) on page 13:

Provisional votes for the Election in the

Electorate of Macquarie were unlawfully

excluded from being counted.

Webster 85 30/7/93

And, as I understand - would Your Honour just

excuse me for a moment?

MR McCARTHY:  Your Honour, I will make that clear. It is in

our notice of motion, I have not argued to this
matter. I would seek to reserve that point,

Your Honour. I am not abandoning that as an argument but if I might put it this way: if

Your Honour is with us in relation to 361(1), I

will then move on that particular point. I might

seek a short adjournment to put evidence on that

suggests that if the roll is not to be challenged

or cannot be challenged, then the petitioner's

position in relation to this clause is, to put it

mildly, hopeless.

HER HONOUR:  As best as is known, I take it, these are votes

of people who w~e no~ an the rolls?

MR McCARTHY:  These are people who were not on the roll who

suggested that they were on the roll for Macquarie, voted in either that seat or elsewhere, their votes

came in - - -

HER HONOUR:  They are not people of whom it was said when

they went to cast their vote, "But you have already

voted"?

MR McCARTHY:	Oh no, no. This is not personation, this is straight. There were envelopes for all these
people, Your Honour. When they came into the
central counting for Macquarie what happened was
that following schedule 3 to the Act, which is the
way the scrutiny is to be conducted, their names
were compared with the roll and their names were
not on the roll so their votes were not counted.
The other provisos, concerning polling clerk error as to why people w~e not an the roll, w~e not
satisfied in these cases and these people were not
allowed to vote.  My friend may even concede,
Your Honour, that if he cannot challenge the
electoral roll then it may be the case that there
is nothing in this point whatsoever. But, in any
event, for the purposes of this morning,
Your Honour, I have pleaded it, I have not argued
it, because it would seem to me to be something that followed from where the Court saw other
matters as going in this matter.

MR THERRY-WARD: In any event, Your Honour, allegation (c)

on page 13 is that there were, in summary, the

total number of provisional voters was

approximately 1200 and about 800 were unlawfully

disallowed. That is the allegation. Now, once

again, Your Honour, we do not know, of course, it

may be that the 800 that were, we say, unlawfully

disallowed - first of all 800 were disallowed. We

Webster 86 30/7/93

say, in our submission, that those 800 were unlawfully disallowed. As I understand the position, those 800 votes that were disallowed can

be obtained and the inquiry - - -

HER HONOUR:  But I have some difficulty with this. Do you

not need ta make, in any event - I mean, you cannot

just say they were unlawfully disallowed, can you,

in a sense?

MR THERRY-WARD:  What has got to be done, of course, is to

inquire into whether the votes were unlawfully
disallowed or not and the way that is done is to
find out who, in fact, the voter was in each case

who was unlawfully disallowed and then to determine

whether in fact he was entitled to have his vote

counted or not. Once again, that - - -

HER HONOUR:. We.ll, I can see why Mr McCarthy says that it

will fall one way or the other. Well, it will fall

unlawfully disallowed.

one way if section 361 is decided one way but what were

MR THERRY-WARD:  Well., Your Honour, say for the sake of

argument that we pick one such vote - - -

HER HONOUR:  But you must give some particulars of why it

is, it seems to me, that they were unlawfully

disallowed.

MR THERRY-WARO: Well, Your Honour, if they were disallowed

we would not know why they were disallowed.	The
only way we can find out who it is that was
disallowed, in the case of each of these 800

voters, is to subpoena these provisional votes and

to analyse them and see in each case whether they

were entitled to have their vote counted or not.

HER HONOUR:  But if they were not on the roll., why would

they be entitled to vote?·

MR THERRY-WARD:  What the evidence would be, as I

understand, is this, that a person enrolls and

comes polling day and for some reason or other his

name is not on the roll. This is, once again, a

361(1) situation. The query· is, if he is satisfied

that he has enrolled, why is it that his name is

not on the roll?

HER HONOUR:  One can think of all sorts of reasons. He or

she might be an absentee voter and says, "I think

my seat is Macquarie". It turns out that that is

not the seat at all, it is the adjoining seat.

MR THERRY-WARD: Absolutely, Your Honour, yes. The problem

is - - -

Webster 30/7/93

HER HONOUR: Well it seems to me that there is a problem in

simply asserting that they were unlawfully

disallowed.

MR THERRY-WARD:  Your Honour, say for the sake of argument

it can be established that of the 1200 provisional
voters - people who believed, for one reason or
another, they were entitled to vote but for some

reason or another their names were not on the

electoral roll - 800 were, we say in the petition,

unlawfully disallowed. If those 800 votes were

demonstrated, or any number of that 800 were
demonstrated to have been disallowed in

circumstances where in retrospect their vote should

have been allowed, then those votes were unlawfully

disallowed, in my submission.

HER HONOUR:  My problem is with particulars, as it were.

Given that one cannot amend petitions and so forth,

I am concerned about whether you have got anything

more than a bare allegation which, on the

authorities, does not satisfy paragraph (a).

MR THERRY-WARD:. Your Honour,. there are two submissions that

I would make to Your Honour in respect of that.

MR McCARTHY:  Your Honour, just so my friend might focus it

further, might I withdraw what I said earlier.	I
would press for the order today in relation to

that, for this reason: I was under the impression, as were others, that my friend could at least state

to the Court on what the basis was that the votes

were unlawful.

If it is the case that he has come here on a

total fishing expedition and he has no idea and

cannot state to you or to us what it is that makes

these votes unlawful, which is apparently what we

have just heard him say, Your Honour, I submit that

this is totally contrary to 355(a), that he has

provided you with no particulars that could

invalidate the election at this stage, nor would

it, in our submission, be consistent with 355(aa)

for the same reasons, that is, of justifying any

possible relief.

Your Honour, I would have thought that for

anyone to put this here in this form where they say

that something is unlawfully disallowed, they could

inform a Court of Disputed Returns without going to

particulars of the grounds on which one or any vote

was to be disallowed.	Mr Therry-Ward has informed
you this morning that he cannot do that now.	For

those reasons, Your Honour - and I understand that

my learned friend, Mr Sackar, joins me in this - we

would press for the provisional votes provision to

be also not further proceeded with under

Webster 88 30/7/93

section 355(a) of the Act. I hope that is of some assistance to my friend so that the matters can be

put now.

MR THERRY-WARD:  Your Honour, the situation can best be

looked at in this way. My client is told after the

election that there were 1200 provisional voters

and of those, 800 were unlawfully disallowed.

HER HONOUR:	Or that 800 were disallowed.
MR THERRY-WARD:	Yes.

HER HONOUR: There is a very big difference.

MR THERRY-WARD:  Your Honour, this is the centre of the

situation. First of all, until we come before the

Court there is nothing that he can do. He cannot

say, wThesa are the. peapl.e who were disallowed",

but nevertheless his information is that 800 were

unlawfully disallowed. It may be that he is wrong.

It may be that his information was wrong and that

of the 800 who were disallowed, only 300 were
unlawfully disallowed or 5 were unl.awful.l.y
disallowed and the rest were in fact validly

disallowed.

But the difficulty is, Your Honour, when it

comes to particularizing an allegation of this

kind, you cannot further particularize it until the matter comes before the Court and. we can say to the

Court it is going to be necessary for us to
subpoena those particular provisional votes to find

out what the story is.

HER HONOUR: Mr Therry-Ward, there is a difference between a

challenge and a fishing expedition. I would have

thought the very purpose of paragraph (a) and

subparagraph (aa) was to make sure that what you

had was a challenge, not exploratory surgery.

MR THERRY-WARD:  Your Honour, with the greatest respect, a

person like Mr Webster who finds himself in

possession of this sort of information, certainly,

as it is there, it gives the impression that it is

a fishing expedition. There is no question about

that, but the fact is, in my submission, it is not

because it could not have been done any other way.

If he has the information and he particularizes all

of the information that he has at the time, then -
say, for the sake of argument, Your Honour, the

bare allegation was made that provisional votes

were unlawfully excluded and the particularization

says something along the lines that there were a

large number of votes, provisional votes, that were

not counted and were unlawfully excluded.

Webster 89 30/7/93

Your Honour, that might well start to look as though, beyond any doubt at all, it is in fact a

fishing expedition. But in this particular case,

what else is he to do? His information is: first
of all there were 1200 provisionals and 800 were

disallowed. What is he to do if he gives the

particularization that he knows about, he gives all

the details that he knows about. That is the

ground of his complaint. Your Honour, with

respect, what else can he do; what other step can

he take until the matter comes before the Court?

That is the difficulty.

HER HONOUR:	I understand what you say.
MR THERRY-WARD:	Your Honour, turning then to the complaint

which is numbered (b) at page 14 point 5:

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). Therein are given details of how Mr Hennesy was

interfered with when he went to the polling booth to do what he was constitutionally entitled to do.

Once again, it is particularized in detail, some

considerable detail, both on page 14 and at the top

of page 15.

Your Honour, turning to ground (c) on page 15

point 3:

The requirements of the ballot paper were

confusing.

Therein are the details in which it is alleged the confusion existed, that is that the form of the

ballot paper, in requiring the number 1 to be

inserted as the Senate choice yet requiring several

squares to be numbered for the House of

Representatives, resulted in a large number of

voters marking 1 for the Senate but failing to mark

boxes at all for the House of Representatives, or

some variation of that.

That resulted in the papers being marked

invalid and therefore rejected. Notwithstanding

that, it is contended in the petition that they

were rejected notwithstanding the clear intention

of how they wanted to vote, and therefore there was

a breach of section 364 of the Act with the

intention and interference with the intention as

set out by section 41 of the Constitution.

HER HONOUR:  What in the Act says that ballot papers have to

do more than comply with the Act?

Webster 90 30/7/93

MR THERRY-WARD:  Your Honour, if evidence demonstrated - and

it would be a question of evidence having to be

produced - not only evidence from voters but

evidence given by experts that the form of the

ballot paper was ambiguous and was likely to cause

confusion in the minds of people, then that would

be sufficient, in my submission, ta make that
particular ballot paper problematical in the form

set out in the particulars. What is claimed is

that as a result of that, as a result of the extent

to which confusion reigned in respect of that

ballot paper, the result of the election in

Macquarie was invalid.

HER HONOUR:	But you do not say that the ballot papers did not comply with the statutory requirements?
MR THERRY-WARD:	No, Your Honour.
HER HONOUR:	What you challenge is the notion that for the Representatives you have to number every box.
MR THERRY-WARD:	Yes.
HER HONOUR:	Where does that requirement come from?

MR THERRY-WARD:  Your Honour, I do not know. I have not

been able to find anything myself in the Act that

sets out precisely how the ballot paper is supposed
to be structured. Your Honour, it seems that in

form E of schedule l there is set out the form in

which the ballot paper should take but, in any

event, the complaint is, as I indicated earlier,
not that there is any breach of any provision but

that in fact the way it was set out was confusing.

So that it may well be, as I have said,

Your Honour, while there is no complaint about the fact that doubtless the paper complies with the regul.atians, the fac.t is -

HER HONOUR:  But the confusion that you compl.ain of is in fact the requirement that every box be numbered.

MR THERRY-WARD: Yes, in the case of the House of

Representatives.

HER HONOUR; Yes, and that is implicit in form F.

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

MR SACKAR: Section 240 of the Act.

HER HONOUR:  This seems to me to be a political argument and

not one that can be maintained here.

MR THERRY-WARD:  That is probably so, Your Honour. As I

have said several times now, we do not suggest that

Webster 91 30/7/93

it does not conform with the regulations. The

complaint is simply that it seems that there was

considerable confusion in the minds of voters. of page 15 that is called (b), I do not know

whether my learned friend has in fact made any

complaint about that. In any case, Your Honour,

the allegation is that - - -

MR McCARTHY:	Page 11, paragraph 21.
MR THERRY-WARD:	Yes:

The First-Named Respondent published false and

defamatory statements in relation to the

personal character or conduct of the

Petitioner.

Again~ that is particularized on the top of page 16

and specifically that the first respondent

published an advertisement saying that the
petitioner would not engage in a public debate with

her, which was false to her knowledge and was

defamatory of the petitioner, and that that was in

breach of- 350(1) of the Act.

HER HONOUR:  And you say that is an illegal practice, do

you?

MR THERRY-WARD:  Yes, Your Honour.

HER HONOUR: And again, you have got to go to 362(3).

MR THERRY-WARD: Yes, that is so, Your Honour.

HER HONOUR: And link it up with the election.

MR THERRY-WARD: Yes.

HER HONOUR:  Where is the link-up?

MR THERRY-WARD:  Once again, Your Honour, in the prayers for

relief. The prayers of course depend on just not

one or two of the acts complained of, but all of

the petition. The basis for the prayers is all of

the allegations in the petition. Your Honour, at

page 16 point 5 is reference to section 229(1) in

that~

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 before in this Election?", therefore

possibly affecting the outcome of the election

Your Honour, once again, there is no separate

particularization of that allegation because the

Webster 92 30/7/93

particularization is in the allegation itself. It

is a simple allegation and the particularization

forms part of it. Ground (c) on page 16 states

that:

The result of the election for the seat of

Macquarie ••••. is invalid.

The particularization given was that there was a

discrepancy in the recorded votes. Of course,

Your Honour, the difficulty with this ground now is

that it was originally framed as not just applying

to the seat of Macquarie, but the election

Australia-wide.

All that I can submit in respect of this at

this stage: while in fact the particularization

originally referred to both the general election
and the seat of Macquarie,. the votes that are

referred to, that is that Australia-wide there were

53,403 less votes declared for the Representatives

and the Senate, of which 19,473 relate to New South

Wales, all that I can submit in relation to that,

Your Honour, without going on about it, is that one would perhaps be entitled to assume that

statistically a proportion of those votes relate to

every seat including Macquarie. Your Honour, my

instructing solicitor instructs me that there were

415 absentee votes disallowed in Macquarie.

HER HONOUR:	Yes, well - - -
MR THERRY-WARD:	I would have to think about that one,

Your Honour. Apart from reference to the - - -

HER HONOUR:  Let me go to the right of political freedom.

Sorry, were you going to do anything about that?

It seems to me to be a two-edged sword, does it

not? First of all, if you say it is invalid, you

cannot rely on it to challenge the return of the

election but,. in any event, it would seem to be

clearly severable, would it not, from the Act?

MR THERRY-WARD:	Yes, indeed, Your Honour.
HER HONOUR:	So do you put any store by that?
MR THERRY-WARD.:	No, Your Honour.
HER HONOUR:	So I can take (b) on paragraph 17 and the particular in (a) as really leading nowhere?

MR THERRY-WARD: That is so, Your Honour.

HER HONOUR:  Yes.

Webster 93 30/7/93

MR THERRY-WARD:  Your Honour, then follow the orders sought.

Apart from the orders as they are now sought, I

have no further submissions to make. Of course,

the orders in respect of the general election are
not pressed, otherwise the orders sought are as

they now appear.

HER HONOUR:	Yes, thank you.
MR THERRY-WARD:	Your Honour, I then turn to the question of

361(1).

HER HONOUR: 

Bef_ore you do that, do you want to say anything

about the construction of 362(3) which really does
seem to be tied up intimately in the same questions

as are raised by section 355(a) and (aa)?

MR THERRY-WARD:  Yes, Your Honour. The subsection says of

course that no election will be declared void:

(a) on the ground of any illegal practice .....

unless the Court is satisfied that the result

of the election was likely to be affected, and

that it is just that the candidate should be

declared not to be duly elected or that the

election should be declared void.

Your Honour, it is my submission that two

situations apply. First of all, the petition seeks

orders that in the circumstances the illegal

practices or whatever were such that the election

of the first respondent should be set aside.

Secondly, of course, whether or not the result was

likely to be affected is a question of evidence.

It can only be evidence, together with the

allegations that have been made in the petition.

HER HONOUR:  Yes, but do you have to put anythinq in your

petition ta shaw that it was likely to have been

affected? For example, if we go to the suggestion

that the other Mr Webster was told he had not

voted, but the allegation is that he did vote.

MR THERRY-WARD: Yes.

HER HONOUR:  So one does not see anything there which

suggests that the election was likely to have been

affected.

MR THERRY-WARD:  It does not have to, with respect,

Your Honour, because it speaks for itself. If a

person's vote has not been counted, then -

HER HONOUR: There is nothing there that says it was not

counted.

Webster 94 30/7/93

MR THERRY-WARD: Well, whatever. Once again, Your Honour,

until the roll is inspected, it cannot be taken any

further. This is the difficulty. It is all tied

up with the question of examining the roll to see

in fact precisely what it was that did happen.	As
Your Honour says, it may be that anything could

have happened. It may be that he is confused about

the fact of whether he voted or whether he did not.

He may have been mistaken about the fact that he

voted or he may have voted and his name was not crossed off the roll or he may have gone to the wrong place to vote, or whatever. A number of

things could have happened. So it is not possible

to put in an allegation of that kind anything

further than what there is in a particular case.

HER HONOUR:  Yes, I see.

MR THERRY-WARD: But if, for the sake of argument, it

subsequently be shown, for instance, that his name

was not crossed off the roll, notwithstanding in

due course, presumably, his sworn evidence that in

fact he did vote and that he went to the man, told

him his. name and ali the res.t of it, then the

allegation then arises that the rolls were not

marked in accordance with the legislation, which is

the basic complaint in that particular allegation.

HER HONOUR:  Yes, I follow.

MR THERRY-WARD:  Your Honour, 361(1): I have had sent up to

Your Honour written submissions in respect of this,

and I indicated - - -

HER HONOUR:  When were they sent?

MR THERRY-WARD: In fact, finally I handed them up to

Your Honour in Court on the last occasion.

HER HONOUR:  I. thought you hac± aent m& extra ones. Thank

you.

MR THERRY-WARD:  The basic argument, Your Honour, is that

the section is invalid in so far as it pronounces

that:

the Court shall not inquire into the

correctness of any Roll.

The authorities referred to are set out there.

Basically, Your Honour, the authorities demonstrate

that sections 30 and 41 of the Constitution were

two of the overriding sections that came to be

incorporated in the Commonwealth Electoral Act and

that no subordinate legislation such as the Act can

deny the people the right to rely on sections 30

and 41.

Webster 95 30/7/93

It is submitted that section 41 of the

Constitution gave the people the right to vote.

That was certainly the intention.

HER HONOUR:  This is in the context of people whose names

are on the.roll but you say should not be there?

MR THERRY-WARD: Yes.

HER HONOUR:  That is to say, it is giving people a right to

vote, not taking a right away? There is a separate

argument for your provisional voters.

MR THERRY-WARD: Indeed, it is a separate argument.

Your Honour, the basic problem is this, in my

submission, that, as Your Honour can see from the

form of particularization of the petition, two

things are apparent. First of all, what is

apparent is that if what is set out in the petition

is established, something is wrong with the rolls,

certainly for the seat of Macquarie.

Secondly though, the real problem that, as the

legislation stands at the moment, nobody can do

anything about it. Reference: if I know, for

instance, that my name is on a particular electoral

roll when it should not be because it has been

accidentally put there and it should not be there,

I can make representations to the Commonwealth

electoral officer. But whether in fact action is

taken to remove my name that is incorrectly placed

on that roll is another matter.

It is demonstrated quite clearly, in my

submission, that if one looks at the allegations in

the petition, particularly if one looks at the

situation where 416 people are known to be on the

roll but gave as. their residences vacant blocks of
land or places that did not exist and so forth,

then quite demonstrably there is a problem with the

rolls that cannot be inquired into.	Your Honour,
basic freedoms given to the people by the

Constitution therefore are not being complied with,

quite obviously, if this sort of situation is going

on.

Those basic freedoms, those basic rights, are

being interfered with because of this very
provision. If no court has the power to inquire
into the correctness of the rolls, then the
correctness of the rolls must always be suspect,

particularly when one man gathers a boxful of

information and comes before this Court doing the

best he can to demonstrate that there is in the

rolls a substantial problem. He comes before this

Court and he says, "These are the details that I've

got." Your Honour, even if a third of what he is

Webster 96 30/7/93

alleging is true, it demonstrates that not only is

that a problem in itself but, if that problem

exists, what else is there that is problematical

about the rolls that we do not know about?

If the rolls are in fact as inaccurate as would appear in the information presented to the

Court in the petition, then the other problem is:

what information is there that we do not know

about, that we cannot look at, the Court cannot

look at, nobody can question it because no court

has the jurisdiction to do so. Therefore, it is

something like I was submitting to Your Honour

earlier. If there is illegality of this kind

inherent in the rolls, people are voting who should

not be voting, then what that does by analogy is to

take away a vote - - -

HER HONOUR:  Let me divert you for. a moment. Do; you

understand - the submissions at this stage, as I

understand them, are only directed to whether I

should decide the case myself, decide this

challenge myself, in which event I will hear

a.i:gument about it, or whether I should refer it.

MR THERRY-WARD:  Yes, Your Honour. It is my submission that

Your Honour would refer the matter. It is

section 18 of the Judiciary Act, of course,

Your Honour. A case may be stated or Your Honour

may reserve any question for consideration by the

Court or direct that any · cas.e or question be argued

before the Court. As the authorities indicate, the
only real - Your Honour has a discretion, of

course -

HER HONOUR:	Yes.
MR THERRY-WARD:	- - - but the only real question before you.

come to exercise your discretion is whether in fact

it is a question of law that is going to be

decided. Of course, in this particular case it is

Therefore, being a question of law that has been not a question of fact; it is a question of law. set up, Your Honour then - - -

HER HONOUR:  There are a number of questions, axe there not?

To what extent is the question a live question?

You say that there are 416 on the roll who should

not be.

MR THERRY-WARD: Yes.

HER HONOUR:  We do not know in fact, though, whether they voted, do we; all or any of them voted?

MR THERRY-WARD~ The only way we can find that out is to

inspect the rolls.

Webster	97	30/7/93
HER HONOUR:	Yes.	Is there any difficulty about that?

MR THERRY-WARD:  As I perceive the situation, Your Honour,

once subpoenas are issued and the rolls are

produced, no.

HER HONOURt I do not think you have got to go even that

far.

MR SACKAR:  No difficulty, Your Honour. With respect, we

have never been asked. Had we been asked, there

would not be a difficulty.

MR THERRY-WARD: Well, Your Honour, in that case, we can

inspect the rolls and find out, but certainly I

take Your Honour's point about that - - -

HER HONOUR:  If it turns out that none of these dead people,

in fact, voted, we need not worry about them, need

we?

MR THERRY-WARD: That is right, no. That is so,

Your Honour. The other point is, of course,

though, that it would be my submission, in any

event, that it is a live issue quite apart from

this particular petition, that it is a matter that

is - - -

HER HONOUR:  No, no. I am sorry; there are only live issues

in this Court in the context of matters to be

decided.

MR THERRY-WARD:  Yes. Your Honour, it would be my

submission that in the context of this particular

petition, it would be a question of vital

importance for that particular provision to be put

under scrutiny.

HER HONOUR:  I understand what you say, but I think perhaps

the sensible course might be to inspect the rolls

and provide me with evidence as to the extent to

which it is an issue.

MR THERRY-WARD:  All right, Your Honour. Your Honour knows

basically the argument that I would be putting to

the Court -

HER HONOUR: Perhaps you might outline it.

MR THERRY-WARD:	Yes.
HER HONOUR:	I simply would, at this stage, wish to hear it

in outline, not argued as such.

MR THERRY-WARD: Yes. Turning to page 2 of the submissions,

Your Honour, it is submitted that the Commonwealth

Electoral Act was enacted for the purpose of

Webster 98 30/7/93

removing the need to depend on section 41 of the

Constitution. Perhaps it would be more correct to say that section 41 of the Constitution was incorporated, or the intention of section 41 of the Constitution was incorporated into the Commonwealth

Electoral Act, and it is submitted that if, in

fact - and I am turning to page 3 of my written

submissions - the legislation does not comply with

section 41 by tending to take away the rights

conferred by section 41, well then, to that extent

the legislation is invalid.

When I say "tending" to take away,

Your Honour, it would be my submission that even if it was likely - indeed, even if it was possible - that a provision was likely to take away the

fundamental rights as provided by section 41, well

then that, per se, would make that legislation

inval.id because section 41, or the rights conferred

by section 41, is not something that can be

considered to be attackable in any form.	It is an
inviolable right which is - - -

HER HONOUR:  Again, I. can. see this argument in :celation to

persons entitled to vote, as it were, but not on. the roll, which is to say your provisional voters case.

MR THERRY-WARD:	Yes.
HER HONOUR:	But what I do not see is how it applies in a

case where, on your view, people are given a right

to vote beyond that which is required by section 41

perhaps. You see, you are not suggesting in this

ground that people voted twice, or anything of that

nature, this is purely that people were on the roll

who presumably were not resident in the division.

MR THERRY-WARD: Yes, Your Honour.

HER HONOUR:

Yes, well how does that relate either to -

there is no suggestion that they are not adults; or

that they - I am sorry, I just do not see how 30

and 41 bear upon the situation where you say people

have been given a right to vote that they should

not have.

MR THERRY-WARD: Your Honour, if, for sake of argument, it

is demonstrated subsequently that a number of

people were on the electoral rolls who should not

have been there; and say it is then demonstrated

that it would appear, by the way the rolls were

marked, that those people voted; so you then have a

situation where people who should not have been on

the rolls apparently have voted. They have voted

illegally.

Webster 99 30/7/93

If there have been illegal votes it has the

effect of disturbing the result of the election;

improperly so, unlawfully so. To the extent that

that does that, it takes away the right of
legitimate voters - it takes away the vote, in a

sense, of legitimate voters. Because, if you had a

situation that was so profoundr where the rolls

were "stacked" to such an extent by illegal voters,

then the right conferred by section 41 would cease
to be in existence, because to the extent to which

the rolls were stacked with illegal voters, to that

extent my vote, given to me by section 41, is taken

away, is detracted from.

HER HONOUR:  You said before you did not rely on section 41,

as such.

MR THERRY-WARD:  Not as such. What I am relying on,

Your Honour, is the fact that the intention of section 41 has been incorporated into the Act, and

the only reason I keep on going back to section 41,
to that extent I am referring to section 41 as its

intent is incorporated into the Act.	So that,
Your Honour -

HER HONOUR: Well, you have got to rely, have you not, on an

implication from Part III of something like

representative parliamentary democracy.

MR THERRY-WARD:  Yes. I have sent up to Your Honour some

authorities, one of which - and indeed my learned

friend has referred you to it, Bridge v Bowen. In

that case the Court said that what is important in

elections is to "Keep it legal", and that is
precisely the type of concept that is implicit in

the submissions that I am making about this,

because if we find that, in fact, there has been a
breaking down of the assumption of legality in the

rolls, then to that extent my vote is taken away

from me. The freedomr or the intention, of

section 41, as incorporated into the Act, that

gives me my vote, has been taken away from me, and

no legislation has the right to do that.

And then it is compounded by the fact that a

court cannot inquire into it. So that one of the

most fundamental provisions of society is being

eroded, perhaps - certainly if one looks at the

arguments presented in the petition it certainly
seems that way - not only by the factum, not only

by the fact that it is happening, but also by the

fact that no court can inquire into it to find out

whether in fact it is. And therefore, one is

tempted to ask: what is the value of the right that

I have to vote lawfully in this type of situation?

Webster 100 30/7/93

Now, while it may well be that there is no

guarantee of vote, certainly the right exists, but

the fundamental problem is to ensure that, as was

stated in Bridge v Bowen, the importance of keeping

it legal, otherwise we have nothing. Now,

Your Honour, the practical effect of section 41

itself has.been - the section itself is spent, but

the provision that it sets up remains in the

legislation. Your Honour, it is my submission that

representative government fails as an institution

if relevant constitutional safeguards are not only

implemented into subordinate legislation, but

absolutely and completely enforced by that

legislation.

One reason it would be my submission for

keeping electoral rolls under close scrutiny is not

only to just ensure that the rolls are correct, but

ta ensure that, as. Yaw: Hono.ur is aware in many

other countries, there is a total absence of

political or general corruption of any kind that

could find its way into the political system.

HER HONOURt You seem to be going ta the merits of yow:

argument, rather than ta the·mere question whether

it is an arguable case.

MR THERRY-WARD:  Your Honour, as far as a general outline of

the case is concerned, they are my submissions.

HER HONOURt	Yes·.
MR THERRY-WARD:	Thank you, Your Honour.

HER HONOUR: Anything in reply, Mr McCarthy?

MR McCARTHY:  Your Honour, perhaps I might just start with

the last point, concerning section 361(1) and a

challenge to the validity of that section. My

leai:ned. friend's submission effectively is this, as

best as I can understand him: without reliance on	the clear words of the Constitution of Australia,	in defiance of the scheme set out in the
Commonwealth Electoral Act, and on the basis of a
series of emotive submissions, basically attacking
the Australian Electoral Commission and its
officers as running a corrupt system, he says that there is a constitutional issue involved.
Now, Your Honour, the gravamen of that is this: if it is not here, where is it? Where can we
come before the courts and challenge what we
believe to be improper practices et cetera? And he says that, of course there seems to be no other way
in which that can be done, as a consequence
section 361(1) of the Act must necessarily be invalid for some reason that relates to section 41.

Webster 101 30/7/93

That can be met at a number of levels, and I

propose just to outline that, for the purpose of

this submission, Your Honour, to say to you that
this argument, in terms of the history of the Act

and the constitutional authorities, is untenable
and should be treated, in my respectful submission,

on that.basis.

First of all, Your Honour, in relation to the

Act itself, I draw Your Honour's attention to the

following, that Your Honour will find in the Act

sections in relation to enrolment - - -

HER HONOUR:  But it is not so much that the rolls cannot be

challenged, Mr McCarthy; it is that on one view you can have somebody elected and the election condoned

and carried into effect, as it were,

notwithstanding illegality in the composition of

the roll, perhaps broad, even in the composition of

the roll.

MR McCARTHY:  Your Honour, they are serious matters to

raise. What I - - -

HER HONOUR:  So it does not go to the roll as such; it goes

to the inability to challenge an election when, if,

the roll is corrupted, to use that term to

mean

MR McCARTHY:  Yes, Your Honour. I wanted to first just make

clear and put on the record that the Australian

electoral system, the Corrmronweal t:h Elect:oral Act:,
in its past configurations and its present

configurations, has always had systems of review of the rolls in contexts that are other than the Court

of Disputed Returns, and that we have in this
country one of the most advanced systems of

enrolment and maintenance of electoral rolls of any

part of the western world, and what Your Honour

finds is that there is a whole sectio.n, for

instance Part IX of the Act, that deals with

objections. Further, in Part VIII and others, one

will find a full section in relation to the manners

of enrolment and then in Part X there is a review

of the decisions that involve divisional returning

officers going to Australian electoral offices,

Your Honour, and then section 121(1) "Review by the

Administrative Appeals Tribunal". And, from there

on it could go, Your Honour, into parts of the

Federal Court.

Now, Your Honour, there is a system of review

of the rolls in a context other than elections and

there are full and fairly detailed provisions that

have been made for that. That is in outline

proposition No 1. That has been recognized by previous Courts of Disputed Returns in various

Webster 102 30/7/93

authorities that I quoted to Your Honour the other

day, including Justice Stephen in the Berrill case,

who outlined the poll concerning Berrill, outlined

what the policy was behind the Act, and more

recently in the Berrill v Hughes case, Your Honour
will recall that Justice Mason, as. he then was,

also outlined and acknowledged: the policy behind

the Act.

Now, Your Honour, that is by way of putting to

you this proposition: section 30 and section 41 are

rightly characterized in previous High Court cases

as being spent, in terms of their effect, because

they include the words "until Parliament otherwise provides". Section 51 (xxxvi) of the Constitution gives full power to the Commonwealth Parliament to make provision for matters that were otherwise

Constitution
provided for in the until the plenary power, Your Honour, is the electoral system, the franchise and associated matter

concerning the process of voting. Your Honour,

that is our fundamental law in my respectful

submission -

HER HONOUR:  But that does not seem to meet, does it, what

is implicit in what has been put by Mr Therry-Ward,

namely that there is something approaching a

guarantee of representative parliamentary

democracy, the effect of which is to limit the

legislative power so that,. or at least so that

there is no power to validate or to hold valid

elections which are brought about as the result of
corrupt rolls, or rolls which do not give effect to

the notion of representative parliamentary

democracy.

MR McCARTHYt Well, Your Honour, that is certainly the

notion that is. being put fa.:cward ..	rn my respectful
submis&ion· - - -

HER HONOUR:  There may be an argument then whether you could

say that the Act overall is reasonably and

appropriately adapted to achieve the ends of

representative parliamentary democracy.

MR McCARTHY:	That would be the submission, Your Honour.
HER HONOUR:	Yes, but I am just wondering whether - what I am suggesting is that what you are putting is an
answer to an argument that might be put rather than
demonstration of the unarguability or the
untenability of the proposition.
MR McCARTHY:	Your Honour, I can only say this in relation

to untenability: that the references that he has

made to various characterization of the

Webster 103 30/7/93

Constitution involve cases that have received

specific consideration here, including who should

and who should not be on an electoral roll. Ten

years ago the High Court of Australia heard Sipkas'

case and that was involved with people trying to

get on the electoral roll who were on the State

electoral. roll, to be on the Commonwealth electoral

roll; Your Honour has probably heard me go through

the main elements of that the other day.

Your Honour, that decision would have to be

overthrown in the sense that there is some

constitutional basis - it has got to be found -

whereby a roll can be challenged. This is an

extension of the Sipka argument, or a re - - -

HER HONOUR:  Oh yes, but there was no constitutional

challenge in that case.

MR McCARTHY: Yes, there was, Your Honour. That is

involving section 41 of the Constitution. That is

the famous case in which it is said that section 41

is spent.

HER HONOUR: Yes .•

MR McCARTHY: This is the case involving a person who had been on the roll for the State after the date of

the closure of the roll - this is 152 CLR,

Your Honour - after the time when the Commonwealth
roll had closed, whether that person had a right to

be on the :coll..

HER HONOUR:  Yes, but that is a different argument to

the - - -

MR McCARTHY:  Only in this sense, Your Honour, that what was

found in that case was this: that there was no

right in relation to being included on the roll
that arose from the Constitution, that the basic

constitutional provision is s.ection 51( xxxvi); that

by section Sl(xxxvi) a constitutional basis for the

Commonwealth Electoral Act had been provided; what

was in the Commonwealth Electoral Act, for these

purposes, was our fundamental law, and that one

found the answers in relation to the rights to

enrolment, which is what we are talking about, or

the rights not to be enrolled, which is in effect -

or rather the circumstances in which you should not

be enrolled, which is what Mr Therry-Ward is
putting today, that those matters are set out in

the Commonwealth Electoral Act, and that that is
the constitutional position, we submit,

Your Honour; that there would need to be a reversal

of those principles in Sipka for any of this

argument to succeed.

Webster 104 30/7/93

We say, Your Honour, that given that he can

show no authority and no principle related to these

sections of the Constitution that would support

this argument, that that is untenable. Secondly,

Your Honour, we would say that it is as appropriate

for the Federal Parliament to lay down various

modes whereby enrolment may be challenged; the
methods by which enrolment may be facilitated, and

secondly, Your Honour, it is. open to the Federal

Parliament to lay down what the powers of this

Court are in relation to an election that has been

held.

It may be that there are other grounds and

other places where matters might be debated in a

political forum and so on, but in terms of an

actual election result, it would be a part of the usual electoral arrangements and it certainly has

never been challenged otherwise than that,, to put

forward that sections like 361(1) evince an

intention by the Parliament, well within their constitutional power, to direct how this Court

should proceed, and certainly that has been the

understanding of previous Courts of Disputed

Returns in Australia, from Cameron v Fysh to the

present time, and its policy has been specifically referred to by previous Courts of Disputed Returns.

Your Honour, obviously any argument concerning

these matters would involve - first of all, a Bench

that would consist of the whole of the High Court,

because the Constitut:ion is being challenged.

There would be -

HER HONOUR:	Before we go to that, what do you say about whether or not it is a live issue and about the
inspection of the rolls? It is clear from what has
been said that the petitioner has got some list which can. be checked agains.t the :colla ...

MR McCARTHY:  Yes, Your Honour. My submission is this, that

presently Your Honour would rely on the fact, or

look at the provision from the point of view of its

being valid. If it was valid, Your Honour would

not authorize any inquiry into the roll whatsoever.

HER HONOUR:  No, no, it is not a queatio.n o.f inquiry into the rolls at all. It is not at all clear that any

of these people voted. This is not an issue. This
could never be an issue, could not be a live issue

if numbers of people on this list, we can assume

exists, voted.

MR McCARTHY:  Well yes, Your Honour. I would have thought

there was sufficient fact asserted in the - - -

Webster 105 30/7/93

HER HONOUR:	There was no assertion that anyone voted as such. When I say there is no assertion, there may
be, but it is not asserted with any great
particularity.  I think the relevant - leave aside
the provisional voters who, I think have - - -
MR McCARTHY:	Your Honour, page l0(a) - "Particulars":
Persons voted who were not entitled to vote in the said electorate -
HER HONOUR:	Yes, exactly, but there is no particular of

anyone who did vote or did not vote. I treat that

as an assertion of fact, but there is no particular

of anyone who did or did not vote.

MR McCARTHY: Well, I certainly think that that is so but,

Your Honour, I - - -

HER HONOUR: Well now, the question really is, before there

is a final decision made one way or another in this

regard, should there be a particular provided by

the simple method of checking this list we can

assume the petitioner has got against the rolls?

MR McCARTHY·:	Your Honour, yes, if Your Honour is satisfied that the whole of the matter is such that issues
pertaining to section 3SS(a) have been - are
sufficient - - -

HER HONOUR: Well, there was an assertion of fact that

people voted who were not entitled to.

MR McCARTHY:	Yes.
HER HONOUR:	There is no particular to comply with

paragraph (aa), and - - -

MR McCARTHY: That i.s certainly so. rt does not comply

wi.th 355-(aa) at the present time.

HER HONOUR:  What I am suggesting is that such a particular

can be provided and should be provided before there

is any final decision about this; what happens in

this regard?

MR McCARTHY:	I ac.cept what Yow: Honour says, but if I could put that in this context, and I will be saying some
more about this in relation to other provisions -
Your Honour, this is a Court of Disputed Returns,
it is not a fishing expedition.  The sections
concerning the scrutiny - this man, the petitioner
who was the member for Macquarie prior to this
election, one would have thought, as did the present member for Macquarie, have present in there scrutineers throughout the totality of this count.
One would have thought - - -

Webster 106 30/7/93

HER HONOUR:  Yes, but that would not assist you to - - -

MR McCARTHY:  No, no. What I am saying is, Your Honour, one

would have thought that anyone who came before the

Court of Disputed Returns and says that I have a

whole series of names of people who unlawfully

voted, or are unlawfully on the roll, that all my

friend need do right now is produce the list and

hand it up to the Court and say that "I have 166

names on this list and this is what - - -

HER HONOUR:	He says 416.
MR McCARTHY:	He says he has 416, but let us take a minimum;

let us say it is 166, which would challenge the

result of the election. I would not have thought

there was any need for Mr Sackar's clients to do

anything at all. If a petitioner is in a position

to show that this is a· live is·sue, a way in which

it would be done is to produce a list of names of

electors that it is alleged should not be on the

roll.	Now, it may or may not be the case that that
can be done.	If they assert that they have 166

names, that is, a number that would affect the

result of th& election, Yow: Honour, .I would have

thought that would bring it forward. There would be no need for Mr Sackar's client to be doing any checking at all.

HER HONOUR:  rt would only bring it forward in a rebuttable

way; it would still be rebuttable. Assume there

are 166 names, but Mr Sackar's client can show that

they did not vote.

MR McCARTHY:  Oh no, what I am saying, Your Honour, is that

I presume he has a list that says that there are

166 names that I am challenging who did vote in the

election. That is the point I am making.

HER HONOUR: Ye&.

MR McCARTHY:  That puts the issue of the roll and of

electors who were on the roll and voted, that the

petitioners says is not - - -

HER HONOUR:  But he needs to see the. r.oll to check whether

they voted, as I understand it. He has got the

list of names, but they have not been checked

against the roll, I think, is the situation.

MR McCARTHY:  Your Honour, again, on that point, all one is

doing is talking about persons who one would have

thought one have the information already. That is

what I am saying. That if there is a challenge, it

is said, to these persons in terms of their

vote - as to the fact that they are on the roll,

then that is that.

Webster 107 30/7/93

But, Your Honour, there is one other point,

and perhaps this is something that you would wish

to hear Mr Terry-Ward on, in any event. If

Your Honour just dealt with this, leaving the

constitutional issue aside, and we brought - and
certainly we have met that, I would have thought,

as the central point because of the question of

jurisdiction - but, Your Honour, assume for a

moment it was not that, but we were looking at this

purely from the point of view of 355(a) as being a
petition point. Once again, Your Honour, there is

nothing there in the pleadings that asserts that

this has affected the result of the election. And,

indeed, if it is taken on the basis that 416

persons have voted, it must be the case,

Your Honour, that we do not know how those persons

have voted and we never will know how those persons

will vote, and how any information will be provided

to say that this action has been likely to affect

the result of the election is difficult to see at

this stage. Perhaps my friend might be able to

inform us all as to how that would be proposed to

be done.

But even assuming that there was that number

of names, that is, if it is regarded as some form

in that sense, that is that there is some illegal

arrangement - there is certainly nothing stated

there otherwise - but, Your Honour, other than that

we are dealing with polling clerk error, and there

are no assertions that any sections of the Act in

terms of,_ again, numbers, have· been breached. He

does not say how many people have gone on the

electoral roll as a result of these actions.

Your Honour, that number of 416 apparently is

not - well, it is not in the petition.

HER HONOUR:  Na, it came from the bar table and it is not,

as L understand it, it. was not said that they

voted.

MR McCARTHY:  That is the 416. Your Honour, I take it no

further in relation to any further investigation

except to make the submission, Your Honour, that

there should a ruling in terms of section 355(a)

and section 355(aa) before any further step was

taken. In our submission, Your Honour would not be

satisfied that the petition has been complied with

on that front, even before one moved to a further
investigation of the numbers or, indeed, to the

constitutional issue.

Your Honour, if it is the case that the

numbers that are claimed that are on the roll and

have voted are in excess of 166 and would have

affected the result of the election, in. terms, just

Webster 108 30/7/93

of basic numbers, our submission then is,

Your Honour, that the Commonwealth Electoral Act

evinces the intention of the Federal Parliament as

to how the constitutional arrangements concerning voting are to be affected in Australia; that this

section in terms of enrolments has been considered

in previous decisions, including Sipka's case; that

the argument that is being advanced is

contJ::adictary of both the policy that has been

perceived by the High Court in this Act, and the

specific constitutional provisions have also been

considered by the High Court and that unless my

friend is putting to Your Honour that what he

intends to do is to have, for relevant purposes,

that line of authority reversed, in our respectful

submission, Your Honour, his argument is simply

untenable.

In those circumstances, the matter should not

be referred to a Full Bench of the High Court.	On
the argument that has been advanced, Your Honour,
we would submit that nothing has been heard,
assuming that the facts are correct, from the
petitioner to suggest, Your Honour, that the
Commonwealth: Electoral Act:, in toto, in invalid;

that there was not one submission addressed to you

on the import of section Sl(xxxvi) of the

Constitution or how that was cut back in any shape or form.

Your Honour, for those reasons and for the fact that there have been a number of examples,

which I have referred Your Honour to last Monday,

as to where Courts of Disputed Returns constituted

by one High Court Judge had formed a view about the

constitutionality of an issue without reference to

a Full Bench, in circumstances where a case was

regarded as futile or untenable, there is no need

for a single Judge to refer the matter: into the

High Court. In our submission, Your Honour, this

case comes within that rubric.

Your Honour, as regards the other matters -

would Your Honour wish to hear me on those other

matters now?

HER HONOUR:	This is what we shall call the particulars?
MR McCARTHY:	The particulars argument?
HER HONOUR:	Yes.
MR McCARTHY:	Yes, thank you, Your Honour. Could I take

Your Honour to the other matter for which authority

was quoted and that is this matter of what I have

covered: the evidence in Crichton-Browne point,

Your Honour, which is -

Webster 109 30/7/93

HER HONOUR:	The construction question.
MR McCARTHY:	Page 7, paragraph 12, section -
HER HONOUR:	Which document am r looking at?

MR McCARTHY: That is in my written submissions.

HER HONOUR:	Your submissions, thank you.
MR McCARTHY:	And it is taken up in relation to the petition at page 7, beginning with paragraph (b), the lower
(b) on page 7, and the documents that are set out
there.

Your Honour, my submissions are brief and are

in the following terms: that Your Honour, after

having heard my learned friend, we submit, would

not allow any further proceedings on these matters.

Firstly, whatever the distinction he was trying and

attempting to illustrate between 329 of the present

Act and its previous configuration, as referred to

in Evans v Crighton-Browne, except for the
inclusive language as Your Honour referred to, in

my respectful submission, leaving that aside, it is

a distinction without a difference. There is no

point. It is simply untenable. Your Honour, to

the extent that he is attempting to canvass the

effect of that section as being different as to

what is in Crichton-Browne, we submit, Your Honour,

that Yow: Honour would jus.t simply reject that.

With the rejection also goes, Your Honour,

that the way in which he characterized the

documentation that is set out. He said, "The

particulars are there." The particulars are not
there. What is there are a series of documents

that he said were distributed in the election.

What he did not set out in that petition is who was

influenced: when, where and why; the way in which

it affected the election result, and the way in

which these votes are said to relate to the
majority of the respondent.	None of that is in the

petition, Your Honour, and that, combined with the

characterization of Evans v Crichton-Browne, in our

respectful submission, leaves it in a position,

Your Honour, where this is a classic example of the

355(a) point and that Your Honour would have no

further proceedings on this matter.

Your Honour, just in finishing that,

Your Honour heard some submissions in relation to

the last document which was the, "Thinking of

Voting Democrat?", and what was put forward there

is that in actual fact this again came within some

wider meaning of Evans v Crichton-Browne. And it

was claimed that this document was misleading on

Webster 110 30/7/93

its face. Again, there was no one who was said to

have been influenced by this and, as well, Your

Honour, we just reject and submit that the Court

would reject as contrary to plain English what the

wording in that particular document amounts to. In

other words, Your Honour, not only is it not

misleading and deceptive but the petition does not

say how in any way this is affected.

Now, Your Honour, the next point I would wish

to make submissions about concerns the personation

argument which is referred to in the petition at

page 7, paragraphs (c) and (a). This is the 100 to

370 instances on the roll. Now, might I submit

this, Your Honour: firstly, Your Honour took my

learned friend to the nature of section 362(3) of
the Act and various answers were given by my friend

as to what the meaning of this section would be. There is no doubt, Your Honour, that in the

present pleadings you do not have before you any

material that would affect the result of the

election and, as is self-evident, there is nothing

before you that suggests that any of this

allegation has anything ta do or happened with the

knowledge or authority of the candidate as would be

at least the threshold issue in relation to whether

it would be just for that candidate not to be

declared unduly elected and that the election

should be declared void.

Your Honour, in our submission, in other

words, where you have asked for a connection

between what is alleged and the result of the

election, that what can be clearly seen from

Mr Therry-Ward's submission and the wording of the

petition is that there -is no such connection and

that, secondly, Your Honour, there is a vital

connection between section 363(3) and

sections 355(a) and (aa), that is, Your Honour,

that if you come before the Court to· set out the

facts relied on to invalidate the election or

return and the ground on which you rely is, for

instance, personation of electors, the way that you

will succeed if you do succeed is under

section 362(3) and under section 362(3), to

succeed, you would have to have an illegal

practice; you. would have to show how it affected the result of the election and you would have to

show how it was just for that candidate to be

effected by that illegal practice.

HER HONOUR:  Have to show that it is likely to have

affected.

MR McCARTHY:  I beg your pardon, Your Honour: it was likely

to affect the result of the election.

Webster 111 30/7/93

HER HONOUR: That assumes some significance, I take it, in a

close election.

MR McCARTHY: It certainly does.

HER HONOUR:	I mean, what you have to prove in a close election is probably much less than that.
MR McCARTHY:	Your Honour, that may be so except on this

allegation. Bridge v Bowen is authority for the

proposition that those English cases that say that if you go to personation you are not indicting the

election as a whole, you are indicting individuals,

and that if you are indicting individuals, what you

are talking about is individual votes. So that the

number that you will want is 166. In other words,

Your Honour, when you deal with this sort of

allegation, you are looking at specific voting.

You are not looking at the effect on an electorate

as a whole as would be the case with corruption or

bribery.

Now, Your Honour, whichever way we approach

it, there is nothing there that shows you how the

result of the election is likely to be affected.

That was the purpose of the other matter that we

have made submissions about that my friend has said
nothing about and that is the status of Bridge v

Bowen. He referred to it in passing.

HER HONOUR: Well, he did in this sense: he did not accept

that he was required to do anything more - well, he

put that he had to do no more than look in global

figures at the end of the day.

MR McCARTHY: That is certainly the case, Your Honour, but

it is open to a Court of Disputed Returns, where it

is said - - -

HER HONOUR:  Of course, what we are talking about is strike

out; not proving, strike out.

MR McCARTHY:	No, no, that is certainly so, Your Honour. But there is a relationship between 362(3) and
355(a) and that is that Your Honour would want to
see, if this is the grounds for invalidity of an
election and it is based an an illegal practice, if it is said likely to have affected the result of
the election, that is perfectly understandable.
The facts that would be pleaded there, Your Honour,
is to refer to some part of the poll. Now, I can
understand where it may not be the case that a
candidate in that area would allege sufficient votes to take out the election as a whole but it
may be that he is relying on it for 50 votes; it may be that he is relying on it for some votes.
But, certainly, Your Honour, it would be, in our

Webster 112 30/7/93

submission, necessary to say that you are relying

on this to some extent, to show something about

the - - -

HER HONOUR: Well, clearly, of course, it can be better

particularized now.

MR McCARTHY:	It may be better particularized now, Your Honour, but also - - -
HER HONOUR:	No, it can be better particularized.
MR McCARTHY:	Your Honour, it can be in a notional sense. In our respectful submission, it is so contrary to
355(a) that the 40 days have expired on this and
that no amendment would be allowed to bring that
material forward. But Your Honour asked me on
Monday what the width, in terms of Australia's
electoral experience and systems, is- of the
provision 362(3): are there equivalents elsewhere?
And, secondly, is there any authority as to the
actual operation of that provision. I asked
Your Honour if I could take that question on
notice.  The answer is, Your Honour, that the
section, in those terms, is a part of .tha electoral
system of New South Wales, Victoria, Tasmania, Western Australia and South Australia. There is a
similar provision but with different wording but going to the similar sort of effect in Queensland.

Secondly, that in relation to whether there is

authority on the proposition, there is unreported
authority from the Court of Disputed Returns in New

South Wales in the case of Scott v Martin in 1988~

I have brought copies of the decision to Court to

hand up to Your Honour, and I hand it up at this

stage because I want to draw Your Honour's

attention to two matters concerning the way that

the· petition was set out. Might I hand that up to

you now,. Yow:: Honour?

HER HONOUR:	Thank you.
MR McCARTHY:	Your Honour, there are a whole series of issues in this, and this was a case in which a
petitioner succeeded, basically, on the grounds of what was, in effect, a bribery allegation but leaving that aside, there was also allegations
about the distribution of an unauthorized how to vote card and illegal practice. That was the
section that ended up being dismissed, but what I
want to take Your Honour to and show how there was
some consideration of the section is in - if I
might take Your Honour to the bottom of page 41 and
to page 42.

Webster 113 30/7/93

Now, Your Honour, if I might ask you just to

accept this. On page 42 at about the 12th line

Your Honour will see a reference to 164(2) of the

Act. That is the Parliamentary Electorates and

Elections Act of New South Wales which I will hand

up to Your Honour. But, Your Honour, what I want

to draw your attention to there is that is a

misprint. That should be 164(3). It makes no

sense in any other way. I hand up the Act to you

to have that in front of you just while we deal

with this.

Now, what is said at the bottom of 41 is that

he makes the first reference to:

As I have said, I am satisfied the

respondent had nothing to do with the

production or distribution of Ex W.

Which was a how to vote card.

Applying to the evidence the standard of

satisfaction required of an allegation of

fraud, which this is, I am of the opinion that the petitioner's case is not made out. To say that is not to say that the only possible

inference is that the petitioner was guilty of

a shoddy confidence trick and, of course,

perjury. All I am saying is that I am not

satisfied, to the necessary standard, bearing

in mind the seriousness of the charge, that

the petitioner's allegations in respect of

Ex W have been made out. I am, as I have

said, satisfied that the respondent himself

had nothing to do with the card. As a result,

even if I had been persuaded that an "illegal

practice" had been committed -

and it has got "164(2)", and it should be (3),

Your Honour -

of the Act would have required me to have been

"satisfied that the election was likely to

have been affected" before I could have made

any orders in respect of the election on this

ground. There was no evidence of that.

Now, in other words, Your Honour, he saw all parts of the section as being required to have been in

operation.	Now, Your Honour, I would like to
just - - -

HER HONOUR: Let us assume for the moment 200 votes - let us

assume - let us assume another 200 from the rolls

matter, just for the sake of argument, why would

you need, in the circumstances of this case, to go

further? We are talking about actual votes cast

Webster 114 30/7/93

now or not cast but, in toto, adding up to - why

would you need to go further than that for a

finding that in the circumstances of this case that
the result of the election was likely to have been

affected?

MR McCARTHY: Just say it again: 200, Your Honour, who

are - - -?

HER HONOUR: Let us just say 200 have voted twice. Let us

just leave it at that. Why would you need to go

further to make out a case of "likely to have been

affected" in the circumstances of this case?

MR McCARTHY:  Your Honour, if that is the only allegation

that you have, that 200 people have voted twice, to

put any detail to likely to have been

affected. - - -

HER HONOUR: There is another question about the justice of

the situation.

MR McCARTHY:  No, no, just staying with likely to be

affected., Yow: Honow:. The votes- are in the ballot

box - -

HER HONOUR:	And have been counted.
MR McCARTHY:	And they cannot be retrieved.

HER HONOUR: No.

MR McCARTHY:  They could have all been for the petitioner.

There is no way in which any evidence could be given that that was likely to - given the strength

of the word "likely", the degree of

satisfaction - - -

HER HONOUR: That is' what I am asking about. A reasonable

possibility?

MR McCARTHY:  No, Your Honour.

HER HONOUR: Likely? Why not a reasonable possibility?

MR McCARTHY:. Y.ow: Honow:, because. th.eJ:e would be no - - -

HER HONOUR: Likely?

MR McCARTHY:  No, it may have affected it.

HER HONOUR: It does not say "probable".

MR McCARTHY:. No, Your Honour, it says "likely". With

respect, Your Honour, "likely" probably goes to a

stronger test than this but if it was turned around

the other way:  assume it was put as a polling

Webster 115 30/7/93

clerk error. If it is a polling clerk error, the

only thing that is required is may have affected

the result. That is the possibility test. Almost

impossible to discharge it. If this was due to

polling clerk error, Your Honour, what Your Honour

puts is beyond doubt. It may have affected the

resu.1.t. of the election. That has got to be so.

But there is a higher standard talked about when you talk about "likely to have been affected" and

the onus is on the - - -

HER HONOUR:	Yes, reasonable possibility?
MR McCARTHY:	Your Honour, it is something greater than a

possibility.

HER HONOUR:  But is it greater than a reasonable

possibility? Do I have to go to probable?

MR McCARTHY:  Your Honour, in my respectful submission, the

line of that authority would put it closer to

probable.

HER HONOUR:	More probable than not?
MR McCARTHY:	More probable than not, as against the other

cases, Your Honour, about polling clerk error which

only leave it at a possibility.

HER HONOUR:  Where does the polling clerk error come into

it?

MR McCARTHY:  It does not come into this. Do you mean into

the Electoral Act?

HER HONOUR:  No, into the Act.

MR McCARTHY: Yes, 365, Your Honour.

HER HONOUR:  My associate. draws my attention to Baker's

Election, a Tasmanian case.	I do not know what
was held. It was submitted:
that "likely" did not mean "more likely than not", but meant something between "possible"
and "probable" such as "reasonably
possible".In my view it means what it
literally says. The court, before making an order, must be satisfied that there was a likelihood of a different candidate -

again, that does not seem to take it very far.

MR McCARTHY:	Your Honour, there is a whole series of matters that would be there. But to draw
Your Honour's attention:  365 follows, Your Honour,
a change in the law that was made as a result of a

Webster 116 30/7/93

case in the 1920s called Kean v Kerby. Prior to

that case, Your Honour, what the onus was is that a

petitioner before a Court of Disputed Returns had

to show that a polling clerk error may have

affected the result of the election. That took us

out of the line of what had been the developing

jurisprudence in England on this question and aa a

result of Kean v Kerby, the Parliament changed it

round to the Enqlish position which is that

virtually the onus is on the Electoral Commission

to show, if there was a polling clerk error, that

it did not affect the result of the election. That

is, if there was some possibility that it did, that

was the end of the matter.

Now, Your Honour, in relation to the issue

back on 362(3) - was there anything further

Your Honour wanted on polling clerk error?

HER HONOUR:	No, no.
MR McCARTHY:	On 362(3): Your Honour, what Your Honour is

contemplating as likely to effect it, whether it is

on a Baker's test or the probabilities, Your Honour

has got to say that of 200 votes, which is the
number that Your Honour nominated, 166 are going to

be for the petitioner. Because if that is not what

is prepared to be found then, obviously, the test

that it was likely to affect the result of the

election is not going to be met.

HER HONOUR: There is a difficulty about this but I am

putting it in terms of strike out.

MR McCARTHY: Certainly.

HER HONOUR: Could you hypothesize if there were - if,

overall, there were 200 votes without having regard

to the voting districts or the booths· or what have

you,. you could not hypo.thes,ize one w.ay or another

about likelihood, is what I am suggesting, on a

strike out.

MR McCARTHY:  Your Honour, I would have thought that was the

strength of the strike out point, because the

petitioner could not show that what has happened is

likely to have affected the election and could

never show it either on a strike out or at any

other time because he does not know what the

results are as to where those votes went. They

could have all been for the petitioner; they could

have all been for the respondent; they could have

broken up as did the seat 49.9 to 51.1. If it did

that, obviously, it is not going to affect the

result of the election at all because it would mean

a majority - a very small percentage.

Webster 117 30/7/93

In other words, Your Honour, in my submission,

on the material that is there, what is put forward

is even less - and if I could refer Your Honour

back to Scott v Martin for an example as to where

there is an attempt, at least, to try and overcome

the position. Fortunately, Mr Justice Needham set

out in the matter - and it remained with it - a

copy of the petition to the Court of Disputed

Returns. Does Your Honour see that at the front of

the document?

HER HONOUR:	Yes.
MR McCARTHY:	And I show Your Honour, if Your Honour would

go to page 3 and to paragraphs (a), (b) and (c) at
the top of that page, Your Honour will see that

there is an allegation of contravention of the Act

and I would like Your Honour to assume that that is

the distribution of material that has not been

registered: secondly, the nature of the material

that had been sent out on behalf of the candidate

and, critically here, Your Honour, an allegation

that it could:

be inferred· from poll results that the

distribution of that material influenced the
casting of votes by electors.

Ultimately, as Your Honour is aware,

Mr Justice Needham found that no evidence had been

led to him that supported that.

But, Your Honour, there is an example of a

minimal allegation or a minimal statement of how

what has happened may have affected the result of

the election because it is put forward that it has

influenced the casting of votes by electors.

The~e is not even that in this petition. It

does not even go that far. It makes no allegation

to that effect whatsoever and could not leave

Your Honour satisfied in relation to how the

election was likely to be affected.

Moreover, in our submission, Your Honour, all

of the section must be given effect when

Your Honour is viewing illegal. practices and that

it would be, in our view, necessary for there at

least to be some statement as to why, in terms of

the facts of the matter, it would be just that the
candidate be declared not duly elected and, of
course, Your Honour, that has not been complied
with in this pleading at all. There is nothing in

the personation point that alleges any connection

whatsoever, even if Your Honour were satisfied that

there had been personation and satisfied that the

result was affected, that if it was the case that

Webster 118 30/7/93

it had nothing to do with the candidate,

Your Honour, why it should have the·result of

bringing the Court to the view that the candidate

should not be declared duly elected, is not even

asserted. There is nothing in this provision at

all that goes to that.

Your Honour, for those reasons, in our

respectful submission, nothing has been put that

would lead to Your Honour being satisfied that this

is something on which further proceedings should be

had.

Your Honour, the other matters that were

raised: Your Honour, nothing that my friend said

in relation to the publication of defamatory

matter, the allegation at 17 6, he just did not
meet the point, Your Honour, that nothing was said

there about how any elector was affected or that

the result of the election was affected in any way.

That could not be compliance with section 355(a) or

( aa)	.
He has abandoned the. right to political

freedom. Your Honour, he still persisted with this

point about there being errors concerning the total

number of votes that were lost and he called out a

figure from here from the bar table. Your Honour,

that is irrelevant. What we are dealing with is

the petition. The fact is - and he does not deny

it - there is not one statement in that section

that has anything to do with Macquarie at all and

how it could be persisted with that that complied

with anything that went to facts is, we say,

totally misconceived.

Your Honour, the matter about the ballot

papers being misled: Your Honour drew his

attention to the sections of the Act that were

involved. Your Honour:,. nothing was sai.d to you, in:

our submission, that could persuade you that

section 355(a) or section 355(aa) has been stated

in any shape or form, that is, that there is

anything that is said there as, indeed, in relation

to the matter about the ballot papers, that could

invalidate the election or jus.tify any relief.

Your Honour, in relation to the matter

concerning exercise of a political right, again,

there was still only one incident that was

emphasized and that was all. Mobile booths, that

point about Mr Bradbury, Your Honour, the same

point applies. Again, there was no attempt to give

Your Honour any further detail. The matters about

the marking of the roll and the other matters, I

think, Your Honour, I have already covered.

Webster 119 30/7/93

Your Honour, those would be our submissions in

reply. We would just simply assert finally,

Your Honour, that there has been nothing really put

here today that has attempted to meet, if I might

say so respectfully, the detail that we have put in

to try and show that most of these provisions ought

to be struck out.

Your Honour, the difference now from this

morning is that also we rely on section 355(a),

given the detail in the petition and what has

fallen from my friend today, to also support that

Your Honour make findings concerning the

provisional votes; that, again, there was nothing

to show how the elected might have been affected.

But, more particularly, Your Honour, that nothing

was said about in what way it was alleged that

something unlawful had happened. This seems to us,

Your Honour, to amount to this classic assertion

that the High Court has put down on a number of

occasions that you do not come along and paraphrase

the section; you do not come along and paraphrase
the Electoral Act and say something unlawful has happened. Yo.u. actually plead s.ome facts to show

what it is that amounts to an unlawful situation.

Your Honour, it was the case this morning that

my learned friend could not-inform you as to one

unlawful action concerning provisional votes. He

could not even name the way in which any of this

had happened.

Finally, Your Honour, might I make this

submission: Your Honour, it is not the case that

this is a fishing expedition. All parties are set

up, all candidates are set up with scrutineers.

Parties coming to Courts of Disputed Returns,

Your Hono.u.r, should be able to come to the Court

immediately and say the number of votes, where they are and the reasons why they say those votes do not

belong to a respondent and why an election should

be declared void.

Your Honour, it is not the case that you

should be in a position otherwise than to tell the

Court from the very beginning how many votes are

affected and why. It may be that, certainly, you

may not have all the names because you have not

got, perhaps, some of the forms there, but the idea

that you do not have the numbers or you do not know

the grounds suggests, Your Honour, that you do not

have scrutineers' reports or that you have not

taken any steps whatsoever that would have obtained

the information.

There are a whole series of documents,

Your Honour, that within the 40-day period - that

Webster 120 30/7/93

is what it is there for - that could have been

investigated by FOI or by other steps that

obviously have not been taken here. But the

underlying point in that, Your Honour, is that one

would have expected, as is the case at other times

in other places, that by now, and certainly one

could have expected in the petition, that if they

had a list of the names of persons who had been,

for instance, provisional voters that were taken

off the roll, the only suspicion that Your Honour

can have as to what has been said is that no

challenge was made at the time. Otherwise, the

list of the challenges would have been set out in

the electoral petition.

In other words, Your Honour, it may be that there is an occasion, either now or at some part in

this, where the opportunity, with the new

section 355 (a) in, not having been. cons.idered

before, that there are matters that could be laid

down for general instruction about petitions. But

this has been a long and tortuous document that

ultimately, Your Honour, in our submission, amounts

to nothing and should be tr.eated on that basis.

There is no proper basis for challenging the legitimacy or election of the first respondent for

Macquarie. If Your Honour pleases.

HER HONOUR:	Mr Sackar.
MR SACKAR:	Your Honour, on the - if I can use the

description, "the particulars argument" - we do

submit that the petitioner bears the onus as is
obvious under section 355 and, for the various

reasons that have been debated before Your Honour,

we would say that in ea·ch of the cases the

petitioner has not been able to forge the necessary

link between. the al.legations of, in some cases, no facts and,. in some cases-, same facts and how it is said that the election was invalidated as a result

of what occurred.

Your Honour, failure to be able to articulate

that, bearing in mind the onus that the petitioner
bears, will be fatal if the petition doea not

sufficiently disclose the matter that 355 suggests

it should.

May I just make one observation about perhaps

the word "likely" in the context of 362. Of

course, by the time the Court would get to the
proviso, it will already have found the existence

of an illegal practice. Consequently, it is not to

set aside, as it were, or declare the election void

unless it is satisfied the result of the election

was likely to be affected and it is just.

Webster 121 30/7/93

The word "likely" is clearly, whilst an

ordinary English word, likely to be affected itself

by the context in which it appears in legislation. submission, notwithstanding what Mr McCarthy has

said, to elevate the word to something beyond a

real possibility, bearing in mind that by the time

the Court gets to that aspect of its deliberation,

it has found an illegal practice.

One would think as a result of that, it would

not need perhaps to go beyond a real possibility added to which it then must thereafter determine

the justice of the situation. Therefore, one would

not expect, in the event of it finding an illegal

practice, that it would then need to find that the

election was probably affected by that illegal

practice. The question of justice will, of course,

he taken into account neces.sarily and i.t may, of
course, depend on the type of illegal practice
which the Court ultimately finds is proven.

Your Honour, on the question of the constitutional issue which has been addressed, may

we simply make this short submission: we would, of

course, urge Your Honour to find that there was no

issue arising. If Your Honour, however, were of the view that there was an arguable question, we would respectfully suggest that the convenient and,

indeed, appropriate course would be to refer the

matter under section 18 of the Judiciary Act.

HER HONOUR: Should I get particulars before I - - -

MR SACKAR: Yes, but if Your Honour, having heard the

argument and then having had further particulars

about the issue, thought that there was an arguable

case, then certainly we would suggest that it would be appropriate to refer it. But may L just address

the question briefly as to whether or not there is

an arguable case ..	One must look at section 361
itself and it says:

The Court shall inquire whether or not the

petition is duly signed, and so far as 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.

The Court therefore is entitled, when considering

whether or not the result was likely to have been

affected, to consider the votes - that is the point

of it - and the identity of the alleged voters. Of

course, one then goes to section 339 and one

Webster 122 30/7/93

observes, for example, that the offences under 339

may be the impersonation offence. No person shall:

(a) impersonate any person for the purpose of

securing a ballot-paper to which the

impersonator is not entitled;

(b) impersonate any person for the purpose of

voting .•...

(d) fraudulently put any ballot-paper or other

paper into the ballot-box; (e) fraudulently take ..... (f) forge any nomination -

and so it goes on. The legislative policy is

cl.ea.:c, in our respectful submissianr and indeed

Berrill's case articulates the correct policy. You

do not challenge the roll but what you do need to

look at, because that is the real point of the

exercise, is how was the result affected? If you

have,. of course, a sufficient number. of persons who

have committed offences, say, of the kind set out

in section 339, then clearly under 355(a) and/or

(aa), you should be in a position to articulate

that the accumulation of those offences - - -

HER HONOUR:  Do you say that being on the roll when you are not enti.tl.ed ta constitutes fraudulently voting?

MR SACKAR:  It may. You see, the roll at any one point in

time is likely to be incorrect. A person may die·

the day before the election, therefore the roll on

that day is incorrect, certainly as to that person.

That person no longer lives and so on. So you are

not looking at the correctness of the roll. That

is really not what' the legislation:, we say, is

about.

You are looking, and necessarily must look, at

the activities of the persons and their conduct and

whether it vitiates an election. You do not

question the result of the election by comparing

the roll against some other document - a death

certificate, for example - because. you are never to

know - and we say this is the clear legislative

policy - whether there has been a mere error on the

part of the keeping of the roll or whether there

has in fact been an election offence committed.

When one looks at the balance of the Act which

clearly gives persons ample opportunity, as is set

out in Berrill's case, but may I just take a moment

or two, there are many provisions in the Act which,

of course, give persons rights to challenge the

Webster 123 30/7/93

roll, to take the challenge further in the event

that that challenge is rejected, but what the Act

does is to regulate, we say quite reasonably, the

time at which their objection can be taken because

if the objection, as it were, can be seen to be

taken during the course of an election period after
the issue of the writs, then that would necessarily

lead to the chaos which Mr Justice Stephen talked

about in Berrill's case.

My learned friend, Mr Therry-Ward, really,

with respect, does not, we say, articulate a

triable issue because, when one looks at the Act as

a whole, as one must, 361 is part of the overall

machinery. By removing, as it were, the roll

itself or the face of the roll from scrutiny and

challenge does not violence whatsoever to

representative democracy because one should not be

looking at the document~ one should, we say,.. be

looking at the alleged offences that are said to

have been committed.

Again, if they cannot be elevated to a

particular number - let us assume the test is "real
possibility" where it could be·suggested there was

a real possibility that the election result would

be different, then we say there is nothing wrong
with that; that is what the legislation is all

about. So, consequently, when one looks at the

construction of section 361 and what it actually

does permit, it is perfectly consistent with the

notion of representative democracy. It simply is a

machinery provision which makes a great deal· of

sense and is perfectly consistent, we say, with all

aspects of the Constitution.

For those reasons, we say that when one looks

at the section in the Act properly, 361 is

constitutionally valid. One cannot look at it in

isolation. Consequently, Your Honour, we would say

that there is no issue arising under the
Constitution.	Your Honour, they are our
submissions.

HER HONOUR:  Mr Therry-Ward, was there anything you wanted

to say by way of answer to the idea that there

should be particulars in relation to what is said
to be particular (a) on page 10 which seems more to

be an allegation of fact?

MR THERRY-WARD: This is in respect of sections 106 and 102?

HER HONOUR: It seems to - - -

MR THERRY-WARD: This is the allegation that there was a

breach of section 106?

Webster 124 30/7/93

HER HONOUR:  It seems to be tied up also with the roll

question.

MR THERRY-WARD:	Yes, indeed.
HER HONOUR:	That the allegation seems to be that persons

voted who were not entitled to vote.

MR THERRY-WARD:  Yes, that is so, Your Honour.

HER HONOUR: That is really the main allegation, is it not,

rather than the fact that the rolls were not

correct?

MR THERRY-WARD:  Your Honour, not completely, because

Your Honour will see in the paragraph marked (d) on

page 10 that an allegation is that:

Responsible officers of the Second-Named

Respondent acted contrary to the provisions of satisfy themselves adequately that claimants

for enrolment in the Electorate of Macquarie

were entitled to be s.o. enroll.ad.

That is a direct attack on the content of the

rolls.

HER HONOUR:  Yes, I see that. I understand that but, quite

apart from the provisions that you challenge

constitutionally, that does not bJ:ing. you to	the
election result. It has got a proplem with
section 355(a), has it not, quite apart from

MR THERRY-WARD:	Your Honour, the - - -
HER HONOUR:	What you have got to do under (a), it seems to

me that it may be - and maybe. this has been missed to some extent - that you never get to 361 because

the mere rolls - this is' Mr Sackar' s last point in

you can establish that there were votes cast essence - the fact that the rolls are wrong does not go to invalidate the election or return unless pursuant to the wrong rolls.

MR THERRY-WARD: Yes, Your Honour, that is so.. One of the

difficulties, as r have submitted - - -

HER HONOUR:	Do you want to answer that proposition?
MR THERRY-WARD:	Only this, Your Honour, that until we get

into a position where we can find out just who it

was of the, for instance, 416 people who -

HER HONOUR:  It seems you will have no trouble in finding

that out, so you could quite easily give

particulars if so ordered.

Webster 125 30/7/93

MR THERRY-WARD:	Yes.
HER HONOUR:	Do you want to say anything about the suggestion that I should order particulars to that
effect?
MR THERRY-WARD:	No, Your Honour.
HER HONOUR:	Do you want to say anything about the slightly

different aspect that I have put to you that the

section 361 point really never arises as such,

because the question is who voted, that being a

matter which you can easily find out?

MR THERRY-WARD:  Your Honour, if it does not arise, that

certainly does not fuss us in any way, of course.

The only difficulty is, however, that I would

perceive that the allegation on page 13, simply

that sect.ion 361( l} is inva·lid, is an allegation by

itself. It is an allegation raised by the petition

and it is particularized. Indeed, Your Honour,

particulars have been sought of this already and

further and better particulars have been given.	It
is my submission that because the petition raises
that point by itself, it is then a live issue.

HER HONOUR:	Yes, I understand that.
MR THERRY-WARD:	Thank you, Your Honour.

HER HONOURt L will reserve my decision in this ~ I would

hope to give it next Friday.

MR McCARTHY: Just before this matter does adjourn, does

Your Honour wish to hear us on costs in relation to

this, or should we just reserve - - -

HER HONOURt Do you ever really get costs in these cases?

MR McCARTHY: Your Honour, I am going to make an application

Commonwealth pay the costs of this matter. in any event under section 360(4) that the

HER HONOUR:	The Commonwealth?
MR McCARTHY:	The Commonwealth, yes, as Your Honour has

power to order.

HER HONOUR:  Does that not assume the result? I think you

had better wait, had you not?

MR McCARTHY:  Your Honour, all I am saying is that I raise

the matter of there being other issues involved

here, to only seek to have the matter reserved

rather than to canvass what - - -

Webster 126 30/7/93

HER HONOUR:	I think the sensible course would be to invite written submissions on costs, if that is an issue,
after next Friday.
MR McCARTHY:	Thank you, Your Honour.

AT 12.52 PM THE MATTER WAS ADJOURNED SINE DIE

Webster 127 30/7/93