The question of costs
2 The petitioners seek to have their costs paid by the Commonwealth pursuant to the power given by s 360(4) of the Act. They make this submission based on the public benefit of the litigation, supported, it was submitted, by the resolution of the various important matters of construction of ss 329(1) and 362(3) of the Act, and upon what they submitted was the failure of the second respondent (the AEC) to discharge its proper function on the day of the election. The petitioners also submit that they should not have to pay the costs of Ms Liu and Mr Frydenberg. They do not say that Ms Liu or Mr Frydenberg should not have their costs, but submit that the Commonwealth should pay them. In support of the submission that they should not have to pay the costs of Ms Liu and Mr Frydenberg the petitioners point to the fact that the subject of the complaint was the result of the conduct of the Acting State Director (Mr Frost) of "their party". In support of the submission that the Commonwealth pay their costs, implicitly, they rely on their earlier submissions of public benefit and the asserted failings of the AEC.
3 The first respondents (Ms Liu and Mr Frydenberg) seek their costs, paid either by the petitioners or the Commonwealth. As a partial alternative Mr Frydenberg submitted that whatever public benefit may be perceived in Ms Liu's case being brought, Mr Yates' petition was also brought. It had no additional public benefit and, further, it faced the huge hurdle of Mr Frydenberg's 11,287 vote majority.
4 The second respondent (the AEC) submitted that there should be no order as to costs as to its costs. It further submitted that there was no occasion for an order to be made against the Commonwealth under s 360(4).
5 At least two matters flow from the orders made and reasons published on 24 December 2019. First, the first respondents should have their costs. Secondly, the AEC should bear its own costs.
6 The further questions that arise are whether the petitioners should pay their own costs as well as the costs of the first respondents or whether the Commonwealth should pay some or all of the costs of the petitioners and the first respondents.
7 The position of the Commonwealth was defended by submissions filed by counsel (including senior counsel) for the AEC, instructed by the Australian Government Solicitor. The AEC is established by s 6 of the Act:
(1) There is established by this section a Commission by the name of the Australian Electoral Commission.
(2) The Commission shall consist of:
(a) a Chairperson;
(b) the Electoral Commissioner; and
(c) one other member.
(2A) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Commission is a listed entity; and
(b) the Electoral Commissioner is the accountable authority of the Commission; and
(c) the following persons are officials of the Commission:
(i) the Electoral Commissioner;
(ii) the Deputy Electoral Commissioner;
(iii) the Australian Electoral Officer for a State or Territory;
(iv) the staff of the Commission referred to in section 29; and
(d) the purposes of the Commission include:
(i) the functions of the Commission referred to in section 7; and
(ii) the functions of the Electoral Commissioner referred to in subsection 18(2).
(3) The Chairperson and the non-judicial appointee shall be appointed by the Governor-General and shall hold office on a part-time basis.
(4) The person appointed as Chairperson shall be a person whose name is included in a list of the names of 3 eligible Judges submitted to the Governor-General for the purposes of this section by the Chief Justice of the Federal Court of Australia.
(5) A person shall not be appointed as the non-judicial appointee unless the person is the holder of:
(a) an office of Agency Head (within the meaning of the Public Service Act 1999); or
(b) an office established by or under an Act and having, in the opinion of the Governor-General, a status equivalent to that of an office referred to in paragraph (a).
(6) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of there being one vacancy in the membership of the Commission.
8 The position of the AEC and its juridical relationship with the Commonwealth, generally and specifically for the purpose of s 360(4), was not explored in submissions, other than by bare assertion of the petitioners that the AEC was not the Commonwealth and that it was not for the AEC to make submissions defending the positon of the Commonwealth. We do not consider it appropriate to seek to resolve this issue on the current submissions.
9 Before coming to the position of the Commonwealth, something needs to be said about the litigation. Undoubtedly, the petitions raised important questions in relation to the construction of the Act. Further, the petitions concerned behaviour about which there was some basis to think that both the Liberal Party and the Labor Party had engaged in (this election as to the former, and at the 2017 Bennelong by-election as to the latter: see [154] of the December reasons): that is, the display of corflutes looking like, or designed to look like, signs of the AEC. We do not intend to repeat what we said in December about this practice or about the width of the phrase "in relation to the casting of the vote". This subject matter, and such clarification as the reasons of December brought to the consideration of conduct that might be seen to undermine the AEC's independence can be viewed as public benefit and not just as a matter of public importance: cf Green v Bradbury (No 2) [2011] FCA 469 at [8].
10 As is apparent from our December reasons, we disagreed with the submissions of the AEC about whether the conduct was capable of satisfying s 329(1) in the light of Evans v Crichton-Browne [1981] HCA 14; 147 CLR 169. The evidence revealed that officers of the AEC at some polling stations took action: see [132] of the December reasons. There was no step taken generally, however, for the reason, we infer, that the view was taken that there could be no contravention of s 329(1) even where the offending corflute was placed adjacent to an AEC sign. That submission was put to us. We rejected it. We do not consider, however, that the submission was untenable or that the AEC can be criticised for having failed properly to execute its functions. Rather, its view was mistaken, in our respectful view.
11 Section 360(4) is in the following terms:
The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.
12 In Nile v Wood (No 2) [1988] HCA 30; 167 CLR 133 Brennan J said the following of s 360(4) at 142:
In my opinion the discretion may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order.
13 Justices Deane and Toohey said at 143:
It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition beyond saying that it should be exercised when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition.
14 In Hudson v Lee (No 2) [1993] HCA 58; 177 CLR 627 at 633 Gaudron J expressed a preference for what her Honour saw on the "wider view" of Deane J and Toohey J, "[g]iven the subject matter of the Act and the nature of the jurisdiction exercised…".
15 To the extent there can be seen a difference in the flexibility of the approach of Deane J and Toohey J, we, like Gaudron J, prefer it, for the same short reasons as expressed by her Honour.
16 We consider that there was public importance and public benefit in bringing the issues before the Court, in particular in circumstances where the AEC had taken (and was maintaining) a position that conduct of this kind was not capable of contravening s 329(1).
17 Ms Hall brought the first petition. She was replaced as petitioner by Ms Garbett. Mr Yates filed his petition on the same day as Ms Hall filed hers. The public benefit and public importance was common to both cases. Nevertheless, the likely outcomes of the two cases were not the same. The issues of the application of s 329(1) were common, but at all times it must have been evident that the provisions of s 362(3) made upsetting the election of Mr Frydenberg extremely unlikely. Any likelihood of over 5,000 electors voting for him who would not have voted for him but for reading the offending corflute should have been seen as almost far-fetched. Yet, Mr Yates persisted with his petition. A proposition akin to this was put to senior counsel for the petitioners during the hearing and no substantive answer was forthcoming (which is not said with any intended disrespect to senior counsel).
18 Looking at the two petitions, without the available operation of s 360(4) of the Act, we consider that there would be little doubt about the proper order for costs: each petitioner would pay the costs of the first respondent, and the AEC would pay its own costs. We consider, however that there is warrant for the engagement, to some degree, of s 360(4). For the reasons that we have given, we consider that there was both public importance and public benefit in the issues thrown up by the petitions being ventilated and decided. That did not, however, require two petitions; and it certainly did not require a second petition where it was necessary to demonstrate that over 5,000 votes were affected by the conduct in question for substantive relief to be given about Mr Frydenberg's election.
19 Given these considerations we would be minded (subject to the Commonwealth, through the Attorney-General, being given an opportunity to resist the order) to order that the Commonwealth pay Ms Garbett's, Ms Liu's and Mr Frydenberg's costs as agreed or assessed; but that Mr Yates be responsible for his own costs. It may be that the considerations attending our view that Mr Yates should at least pay his own costs (see [18] above) may found a view that he, rather than the Commonwealth, should pay Mr Frydenberg's costs. Subject to any submission by the Commonwealth we would give some weight to the vindication by him of points not only of public importance but also of public benefit.