Smith v Australian Electoral Commission [2009] FCAFC 43 (1 April 2009)

Last Updated: 1 April 2009

FEDERAL COURT OF AUSTRALIA

Smith v Australian Electoral Commission [2009] FCAFC 43

CONSTITUTIONAL LAW – appeals – whether right of appeal from a judgment of the Federal Court, exercising the powers and functions of the Court of Disputed Returns – whether statutory prohibition on such appeals invalid – whether prohibition destroys the general rule that appeals lie to the High Court – whether operation of prohibition ameliorated by provisions enabling High Court to deal with important constitutional issues.





Constitution ss 73, 73(ii), 76(ii), 77(i)
Commonwealth Electoral Act 1918 (Cth) ss 351(1), 354, 354(1), 354(2), 354(3), 354(6), 355(e), 358, 363A, 368
Federal Court of Australia Act 1976 (Cth) ss 20, 24(1), 24(1)(a), s 25(1A), 33, 33(2)
Judiciary Act 1903 (Cth) ss 15, 18, 40, 78B
Federal Court Rules O 52 r 18



Arrowcrest Group Pty Ltd v Gill [1993] FCA 541; (1993) 46 FCR 90 cited
Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155 cited
Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 cited
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 cited











ROBERT ARTHUR SMITH v AUSTRALIAN ELECTORAL COMMISSION
NSD 1090 of 2008

GRAY, SIOPIS AND BUCHANAN JJ
1 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1090 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT ARTHUR SMITH Appellant

AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	GRAY, SIOPIS AND BUCHANAN JJ
DATE OF ORDER:	20 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

3. The Court reserves reasons for judgment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1090 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT ARTHUR SMITH Appellant

AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	GRAY, SIOPIS AND BUCHANAN JJ
DATE:	1 APRIL 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GRAY J:

1 The question dealt with in these reasons for judgment is whether there is a right of appeal from a judgment of a single judge of this Court exercising the powers of a Court of Disputed Returns pursuant to the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). Section 368 of the Electoral Act expressly prohibits any appeal from such a judgment. The only possible basis on which that section could be ignored would be if it were found to be invalid by reason of inconsistency with Ch III of the Constitution, particularly s 73.

2 The question was argued on 20 November 2008. At the conclusion of the argument, the Court dismissed the appeal and ordered that the appellant pay the respondent’s costs of the appeal. The Court then reserved its reasons for judgment.

3 By s 353(1) of the Electoral Act, the validity of any election or return may be disputed only by petition addressed to the Court of Disputed Returns. Section 354 of the Electoral Act provides relevantly as follows:

(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Federal Court of Australia (the Federal Court).

(2) When a petition has been so referred for trial, the Federal Court shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns.

4 By s 354(3), the High Court may refer to the Federal Court part of a petition, being a part that consists of a question or questions of fact. Section 354(6) provides that the jurisdiction conferred by s 354 may be exercised by a single justice or judge. Section 363A provides that the Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances. Section 368 of the Electoral Act provides:

All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.

5 On 25 January 2008, the appellant filed in the High Court of Australia a petition disputing the validity of the return of senators for the States of Queensland and New South Wales in the general election conducted on 24 November 2007. On 8 April 2008, Gummow J ordered that the petition be referred for trial to the Federal Court of Australia, New South Wales District Registry. The petition came before a single judge of the Court for hearing on 20 June 2008. On 27 June 2008, that judge delivered judgment dismissing the petition. The appellant then filed a notice of appeal in the Court on 14 July 2008. Because the appeal was perceived as involving a matter arising under the Constitution or involving its interpretation, each party provided a notice to the required Attorneys-General, pursuant to s 78B of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

6 The jurisdiction of a Full Court of this Court to hear an appeal from a judgment of a single judge of the Court is conferred by s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), which provides, so far as relevant to this case:

Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge

7 Section 368 of the Electoral Act answers the description in the words in parenthesis in s 24(1) of the Federal Court Act. Section 368 clearly renders a judgment of a single judge of the Court, exercising the powers of the Court of Disputed Returns under the Electoral Act, final and conclusive and not subject to appeal. Section 24(1) therefore operates to exclude from the jurisdiction of this Court any appeal from a judgment of the Court constituted by a single judge to which s 368 applies, ie a judgment of a single judge of the Court exercising the powers and functions of the Court of Disputed Returns. Further, the only conferral of jurisdiction on this Court effected by the Electoral Act is the jurisdiction to "try" the petition, conferred by s 354(2). The word "try" is apt to encompass only the determination of issues at first instance, and not the reconsideration of that determination by means of an appeal. The literal meaning of these provisions is absolutely clear. Nor can it be ousted by any purposive interpretation, because the purpose of the legislation is clear. There is much importance attached to the certainty of the outcome of an election conducted under the Electoral Act. While there is an entitlement to dispute the outcome by petition, there is a clear policy that any such dispute is not to render the outcome uncertain for too long a time after the result of the election has been announced. This policy is expressed in s 355(e) of the Electoral Act, which imposes a 40-day time limit on the filing of a petition, a limit which cannot be extended, even by subsequent amendment of a petition filed before the expiry of the time limit. See s 358 of the Electoral Act and Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 at 137. The same policy is expressed in s 363A of the Electoral Act, which seeks to ensure a quick determination of a petition. The policy is manifest in s 368, which ensures that an unsuccessful petitioner will not be able to continue to cast doubt on the result of an election by prolonging the process by means of appeal.

8 On the face of it, therefore, s 368 of the Electoral Act appears to be a valid exercise of the power of the Commonwealth Parliament, conferred by a combination of s 77(i) and s 76(ii) of the Constitution, to define the jurisdiction of any Federal Court other than the High Court with respect to a matter arising under a law made by that Parliament. The combination of s 24(1)(a) of the Federal Court Act and s 368 of the Electoral Act is such as to define the jurisdiction of this Court in a way that excludes any jurisdiction to hear an appeal from a judgment of a single judge of the Court exercising the powers of a Court of Disputed Returns under the Electoral Act.

9 Section 73 of the Constitution provides relevantly:

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:

(i) of any Justice or Justices exercising the original jurisdiction of the High Court;

(ii) of any other federal court, or court exercising federal jurisdiction;

10 In Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155 at 165, Dixon CJ, McTiernan and Kitto JJ suggested that the power conferred on Parliament to prescribe exceptions and regulations could not be used "so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised within s. 73, that an appeal shall lie from its judgments decrees orders or sentences."

11 In Sue v Hill [1999] HCA 30 (1999) 199 CLR 462, the High Court considered the specific question whether s 368 of the Electoral Act trespassed upon that general rule to such an extent that it threatened the conferral on the High Court and this Court of jurisdiction to act as the Court of Disputed Returns. At [151], Gaudron J said:

The effect of s 368 is that, if a petition is heard and determined by a single Justice or a single Judge of a court to which a petition may be referred pursuant to s 354(1) of the Act, there is no appeal. Nor is there an appeal if the jurisdiction is exercised by a court comprised of more than one Justice or Judge. That consequence is entirely consistent with s 73 of the Constitution by which appellate jurisdiction is relevantly conferred on this Court with respect to judgments and orders of a single Justice and other courts exercising federal jurisdiction but "with such exceptions and subject to such regulations as the Parliament prescribes". That being so, the absence of appellate review says nothing as to the character of the power conferred by s 360 of the Act.

12 In a footnote to the passage quoted in that paragraph, her Honour referred to Cockle v Isaksen. In Sue v Hill, at [41], Gleeson CJ, Gummow and Hayne JJ, referring to s 18 of the Judiciary Act, said:

the availability of procedures under s 18 diminishes what otherwise would be the impact of s 368. Section 18 [scil 368] provides:

"All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way."

As Gaudron J has pointed out, in its application to the appellate jurisdiction of this Court, s 368 is to be supported as a prescription by the Parliament of an exception within the meaning of s 73 of the Constitution. However, were it not for the availability of the procedures under s 18 of the Judiciary Act, particularly with respect to questions arising under the Constitution or involving its interpretation, a question may have arisen as to the validity of s 368. The joint judgment in Cockle v Isaksen indicates that the power to prescribe exceptions does not extend to laws which "eat up or destroy" the general regime specified in s 73 of the Constitution as to the appellate jurisdiction of the High Court.

13 Section 18 of the Judiciary Act confers on a single justice of the High Court power to state a case or reserve a question for the consideration of a Full Court of the High Court, or to direct any case or question to be argued before a Full Court of the High Court, and empowers a Full Court of the High Court to hear and determine any such case or question.

14 None of the discussion of s 73 of the Constitution and the exercise of Parliament’s power to create exceptions to the right of appeal to the High Court has any direct effect in relation to the appellate jurisdiction of this Court. Section 73 of the Constitution operates only to confer appellate jurisdiction on the High Court. Section 18 of the Judiciary Act, which was thought by Gleeson CJ, Gummow and Hayne JJ in Sue v Hill to ameliorate the impact of s 368 of the Electoral Act, relates only to the exercise of the High Court’s jurisdiction. The power of the Parliament, pursuant to ss 77(i) and 76(ii) of the Constitution, to define the jurisdiction of this Court in relation to any matter arising under a law made by the Parliament, remains.

15 The only way in which it could be argued that s 368 of the Electoral Act infringes s 73 of the Constitution is by reference to s 33 of the Federal Court Act. By s 33(2): "Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge." The combined effect of s 24(1)(a) of the Federal Court Act, s 368 of the Electoral Act and s 33(2) of the Federal Court Act is such as to deprive the High Court of the chance of dealing with an appeal from a judgment of a single judge of this Court exercising the powers of a Court of Disputed Returns. In the absence of a relevant exception, created by Parliament under s 73 of the Constitution, the jurisdiction to hear such an appeal would be conferred on the High Court directly by s 73(ii). The only possible question then is whether the combination of those three provisions exceeds the power of the Parliament to prescribe exceptions and regulations in relation to such appeals, conferred by s 73 of the Constitution, by destroying the general rule that appeals are to lie to the High Court. On the reasoning of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill, it may therefore be necessary to look for some amelioration of the effect of that combination of provisions, particularly with respect to questions arising under the Constitution or involving its interpretation.

16 Such amelioration is not found in s 18 of the Judiciary Act, which applies only to the exercise of the High Court’s jurisdiction. It is to be found, however, in two other ways. First, it must be remembered that a petition under s 353(1) of the Electoral Act only reaches this Court if it is referred by the High Court under s 354(1). The power to refer is discretionary. If a petition discloses on its face that it raises an important question, including a question arising under the Constitution or involving its interpretation, the High Court can choose to hear it itself. A single justice of the High Court, exercising the power under s 18 of the Judiciary Act, can then refer the case to a Full Court of the High Court. Of course, not every mention of the Constitution in a petition will raise a question of sufficient importance to warrant the attention of the High Court. Not every reference to the Constitution raises a real question, or a question of sufficient importance to justify the High Court’s retention of a case and its referral to a Full Court of the High Court. The second way in which an important question arising under the Constitution or involving its interpretation, raised by a petition under the Electoral Act, could be dealt with by the High Court is by removal of the cause or any part of it from the single judge of this Court before whom it is pending into the High Court, by order of the High Court, pursuant to s 40 of the Judiciary Act.

17 In both of these ways, there is ample amelioration of a kind similar to that inherent in s 18 of the Judiciary Act of the absolute effect of s 368 of the Electoral Act. Accordingly, on the authority of Sue v Hill, it is impossible to say that Parliament has exceeded the power given by s 73 of the Constitution to prescribe exceptions or regulations in relation to appeals from this Court to the High Court. Section 368 of the Electoral Act is as valid in its application to appeals from judgments of single judges of this Court as it is in relation to judgments of single justices of the High Court.

18 It follows that the combination of s 24(1)(a) of the Federal Court Act and s 368 of the Electoral Act is such as to remove any right of appeal from a judgment of a single judge of this Court exercising the powers and functions of a Court of Disputed Returns under the Electoral Act. The appeal lodged by the appellant on 14 July 2008 was incompetent.

19 For these reasons, I joined in the making of the orders of this Court on 20 November 2008.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 1 April 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1090 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT ARTHUR SMITH Appellant

AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGES:	GRAY, SIOPIS AND BUCHANAN JJ
DATE:	1 APRIL 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SIOPIS AND BUCHANAN JJ:

20 At the conclusion of argument on a notice of motion filed by the respondent seeking that this appeal be dismissed as incompetent the Court made orders dismissing the appeal with costs. What follows are our reasons for joining in those orders.

The Petition

21 Mr Smith filed a petition in the High Court on 25 January 2008 under s 355 of the Commonwealth Electoral Act 1918 (Cth) ("the Act") concerning the half Senate election held on 24 November 2007. The petition was remitted by Gummow J to the Federal Court on 8 April 2008.

22 The Act establishes the Court of Disputed Returns. The function of the Court of Disputed Returns is to determine disputes concerning the validity of federal and territory elections and certain ballots under Commonwealth legislation.

23 Under the Act the High Court is to be the Court of Disputed Returns but may refer a petition for trial to this Court (s 354(1)). When a petition is referred for trial in this Court the Federal Court is and has all the powers and functions of the Court of Disputed Returns in respect of the petition (s 354(2)). The jurisdiction of the Court of Disputed Returns may be exercised by a single Justice of the High Court or a single Judge of this Court (s 354(6); see also the Judiciary Act 1903 (Cth) ("the Judiciary Act") s 15 and the Federal Court of Australia Act 1976 (Cth) ("the FCA Act") s 20). In the present case the jurisdiction of the Court of Disputed Returns was exercised, at the trial of Mr Smith’s petition, by Bennett J.

24 On 27 June 2008 Bennett J dismissed the petition because it failed to comply with the requirements of s 355 of the Act (Smith v Australian Electoral Commission [2008] FCA 953). Section 358(1) of the Act provides that there may be no proceedings on a petition unless it complies with s 355. Section 355(a) requires that a petition set out the facts relied on. Bennett J concluded that the facts were not adequately set out in the petition, that no amendment was permissible for reasons she explained and that a limited power granted by s 358(2) to overlook inadequate particulars was of no assistance to Mr Smith because of an overall failure to show how the result of the election might have been affected by the matters which he asserted (see s 362(3) of the Act).

25 It is not necessary for us to embark upon any consideration of the merits of Mr Smith’s petition or any consideration of the arguments he wished to advance to suggest that Bennett J was in error in the conclusions she reached.

The Purported Appeal

26 Section 24(1)(a) of the FCA Act provides an appeal from judgments of this Court constituted by a single Judge. However, that statutory grant of jurisdiction is "[s]ubject to ... any other Act".

27 On 14 July 2008 Mr Smith filed a notice of appeal against the order of Bennett J dismissing his petition. On 29 July 2008 the respondent filed a notice of motion seeking that the appeal be dismissed as incompetent. The notice of motion relied procedurally on O 52 r 18 of the Federal Court Rules but its statutory foundation was s 368 of the Act.

28 Section 368 of the Act renders decisions of the Court of Disputed Returns final and conclusive. It prohibits any appeal.

29 Section 368 provides:

All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.

30 Section 368 of the Act, therefore, provided a clear statutory bar against the appeal which Mr Smith attempted to commence. Unless there was a basis to conclude that s 368 is invalid the respondent was entitled to have the appeal dismissed as incompetent. Order 52 r 18 contemplates that a contention that an appeal is incompetent will be raised at an early stage (see Arrowcrest Group Pty Ltd v Gill [1993] FCA 541; (1993) 46 FCR 90 at 98-99).

Validity of s 368

31 No submission was, in fact, made by Mr Smith that s 368 of the Act was beyond the legislative competence of the Australian Parliament but, anticipating that some argument of that kind might be advanced, counsel for the respondent, Dr Perry QC and Mr Kennett, helpfully directed our attention to the possible constitutional foundation for such a contention.

32 In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 the High Court gave consideration to whether the restrictions in s 368 of the Act could be accommodated with the operation of s 73 of the Constitution which gives the High Court a general jurisdiction to hear appeals from single Justices of the High Court and from Supreme Courts and from the Federal Court, amongst others. Section 73 of the Constitution grants that jurisdiction "with such exceptions and subject to such regulations as the Parliament prescribes".

33 Gaudron J said (at [151]):

[151] The effect of s 368 is that, if a petition is heard and determined by a single Justice or a single Judge of a court to which a petition may be referred pursuant to s 354(1) of the Act, there is no appeal. Nor is there an appeal if the jurisdiction is exercised by a court comprised of more than one Justice or Judge. That consequence is entirely consistent with s 73 of the Constitution by which appellate jurisdiction is relevantly conferred on this Court with respect to judgments and orders of a single Justice and other courts exercising federal jurisdiction but "with such exceptions and subject to such regulations as the Parliament prescribes". ...

34 Gleeson CJ, Gummow and Hayne JJ agreed with Gaudron J subject to one qualification. Their Honours said (at [41]):

41 ... As Gaudron J has pointed out, in its application to the appellate jurisdiction of this Court, s 368 is to be supported as a prescription by the Parliament of an exception within the meaning of s 73 of the Constitution. However, were it not for the availability of the procedures under s 18 of the Judiciary Act, particularly with respect to questions arising under the Constitution or involving its interpretation, a question may have arisen as to the validity of s 368. The joint judgment in Cockle v Isaksen indicates that the power to prescribe exceptions does not extend to laws which "eat up or destroy" the general regime specified in s 73 of the Constitution as to the appellate jurisdiction of the High Court.

35 That part of the discussion in Sue v Hill was concentrated upon the possible significance of a limitation on appeals from a single Justice of the High Court to a Full Court. It did not directly concern any limitation upon the power of the High Court to entertain an appeal from another court. As appears from the passage extracted above their Honours indicated that the availability of s 18 of the Judiciary Act (which permits a single Justice of the High Court to refer a case or question to a Full Court of the High Court), particularly with respect to constitutional issues, avoided concern that s 368 was invalid.

36 Similarly, s 40 of the Judiciary Act ensures that the High Court retains ultimate control over constitutional issues arising in another federal court, or in a court of a State or Territory, by permitting removal of such proceedings into the High Court. Section 78B of the Judiciary Act requires that adequate notice of such matters be given to the Attorneys-General of the Commonwealth and of the States and restricts the ability of another court to deal with such an issue until notice is given and an opportunity afforded to consider whether an application should be made for removal of the proceedings into the High Court.

37 There is no basis, therefore, to think that the fact that the Court of Disputed Returns might be constituted by a Judge or Full Court (see FCA Act s 20(1A)) of this Court, rather than a single Justice of the High Court, takes the question of the validity of s 368 of the Act in such a circumstance outside the analysis in Sue v Hill at [41].

38 On a more general level, as their Honours observed, the limitations on legislative power inherent in s 73 of the Constitution were also discussed by the High Court in Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155. Dixon CJ, McTiernan and Kitto JJ there said (at 165):

Section 73 defines the appellate jurisdiction of this Court by reference to the judgments decrees orders and sentences from which there are to be appeals. In every case the judgments decrees orders and sentences are defined by reference to the courts or tribunals by which they are given made or pronounced. In the case of each description of court or tribunal the intention of s. 73 doubtless is that the general rule shall be that the High Court has jurisdiction to hear and determine appeals from its judgments decrees orders or sentences. From that general rule the legislation is empowered to prescribe exceptions. In the present case there is no attempt to use the power to prescribe exceptions so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised within s. 73, that an appeal shall lie from its judgments decrees orders or sentences. (Emphasis added.)

39 In the present case the modification, by s 368 of the Act, of the operation of s 24(1)(a) of the FCA Act and the resulting prohibition on an appeal from a single Judge of this Court to a Full Court raise no direct question of inconsistency with the operation of s 73 of the Constitution, but even if the matter is viewed from a wider perspective there is no basis to conclude that s 368 of the Act represents an "attempt to use the power to prescribe exceptions so as to destroy the general rule" as discussed in Cockle v Isaksen, or has that effect.

40 Accordingly, there is no occasion in this case to question, much less doubt, the validity of s 368 of the Act.

Costs

41 The respondent formally sought indemnity costs in relation to its notice of motion and the appeal. We were not satisfied this was a proper case for the award of indemnity costs. There was, however, no apparent basis (and none was suggested) upon which Mr Smith could resist the usual order for costs.

Conclusion

42 For the reasons given above we joined in the orders announced at the conclusion of the proceedings.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis and Buchanan.

Associate:

Dated: 1 April 2009

Appellant appeared in person
Counsel for the Respondent:	Ms A Perry QC with Mr G R Kennett
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	20 November 2008
Date of Judgment:	1 April 2009