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austlii:cth/HCASJ/2024/5
procedural. Application for leave to issue or file refused without an oral hearing.
3 cited instruments linked from this judgment.
Edelman J refused permission to file Clampett’s proposed case about the 2023 referendum. The proposed writ did not say which specific public duty the Electoral Commissioner had failed to perform or what the Commissioner should still do after the vote. Although the judgment accepted that s 128 requires electors to receive a minimum amount of information to consider a proposed constitutional change, the material did not support the claim that this requirement had not been met. The proposed case was treated as manifestly hopeless and an abuse of process, so it was refused without an oral hearing.
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1,870 words · generated 03/10/2026
In this short decision, Edelman J considered Leonard William Clampett’s application for leave to issue or file a proposed constitutional writ of mandamus against the Australian Electoral Commissioner. The application followed the unsuccessful referendum held on 14 October 2023 on a proposed constitutional alteration to establish an Aboriginal and Torres Strait Islander Voice. Clampett identified as an Indigenous Australian Aboriginal of the Dalungbara people, with the tribal name of Yarraman ([1]).
The procedural history mattered. Clampett had sought to file an application for a constitutional writ. On 19 October 2023, Gleeson J directed the Registrar, under r 6.07.2 of the High Court Rules 2004 (Cth), to refuse to issue or file the application unless a Justice granted leave. Clampett filed the application for leave on 11 December 2023 ([2]). Edelman J determined that leave application on the material provided and refused it without an oral hearing ([8]).
The draft writ sought to compel the Commissioner to “apply all the laws of the Commonwealth in all his duties as the Commissioner” ([3]). Clampett’s stated complaints concerned two alleged failures: not submitting the proposed constitutional law to electors before the referendum, and not putting a clear and concise question on the ballot paper ([3]). His argument appeared to focus on whether electors, including himself, had enough opportunity to “peruse [the] proposed law [and] study and understand its implications”. He suggested electors who voted yes might not have given fully informed consent ([4]).
The application’s supporting affidavit included a ballot paper with “No” written as the answer to the referendum question ([4]). The decision does not treat that ballot paper as evidence of a legal defect in the referendum. Its reasons instead focus on whether the proposed proceeding stated a legally recognisable duty and provided material supporting the alleged failure to meet s 128.
Edelman J identified two deficiencies in the proposed application ([5]-[6]).
First, the proposed writ did not identify the public duty said to have been wrongly left unperformed. The judgment states the relevant general rule: “A writ of mandamus is a command to perform a public duty which an officer has wrongly refused to perform” ([5]). The proposed order, requiring the Commissioner to apply “all the laws of the Commonwealth in all his duties”, did not specify which duty was at issue. The fact that the application was made after the referendum also made it necessary, in Edelman J’s assessment, to identify what duty remained to be performed. The application supplied neither that detail nor a specific account of what the Commissioner was required to do ([5]).
The point is about the scope and identification of the claimed duty, not a finding that the Commissioner had or had not complied with a particular duty. The judgment did not examine the full range of the Commissioner’s responsibilities or determine whether any particular act in the referendum process was legally defective. It found that this proposed application did not describe the duty with sufficient specificity to support the requested writ.
Second, the applicant impliedly asserted that the referendum was a nullity because it did not comply with s 128 of the Constitution. Edelman J accepted that s 128 carries an implication requiring electors to receive a “minimum or baseline content” enabling them to consider the proposed law submitted to them ([6]). The judgment refers to Ruddick v The Commonwealth “by analogy” for that proposition. It did not, however, find that the referendum failed this requirement. Edelman J said there was nothing in the material before the Court, or in any matter of which the Court might take judicial notice, to support a conclusion that the condition had not been satisfied ([6]).
Those deficiencies led to the procedural conclusion. An application for leave to issue or file is determined without an oral hearing, and an application that is on its face an abuse of process should not be issued or filed ([7]). Applying those propositions, Edelman J described the proposed application as “manifestly hopeless” and therefore an abuse of process ([7]). The application was refused under r 13.04 of the High Court Rules ([8]).
The judgment applies, rather than comprehensively restates, the principles relevant to mandamus and applications for leave to issue or file. Before this decision, the authorities cited in the reasons supplied the framework. Re Jarman; ex parte Cook (No 1) and Re Media, Entertainment & Arts Alliance; ex parte Hoyts Corporation Pty Ltd are cited for the proposition that mandamus commands performance of a public duty wrongly refused ([5]). Re Young is cited for the procedure governing leave applications, including determination without an oral hearing and the treatment of an application that is on its face an abuse of process ([7]). Citta Hobart Pty Ltd v Cawthorn is cited in support of treating a manifestly hopeless application invoking original jurisdiction as an abuse of process ([7]).
The decision’s express constitutional point is that s 128 implies a minimum or baseline content must be provided so electors can consider the proposed law submitted to them ([6]). The decision does not set out a comprehensive test for what information meets that standard. Nor does it hold that the proposed law must be communicated in any particular format beyond the requirements discussed in the cited source material. It also does not decide whether the alleged facts, if established, would amount to non-compliance, because the application provided no material supporting the alleged shortfall.
After the decision, the immediate legal result in this proceeding was that leave was refused. The supplied judgment does not report any later treatment of this decision by other courts. It would therefore be unsupported to say whether a later court has followed, distinguished, or elaborated on its s 128 observation. The decision’s narrow significance is its application of existing procedural and mandamus principles to the deficiencies in this particular proposed application, together with its stated minimum-content implication concerning s 128.
At [5], Edelman J says mandamus is “a command to perform a public duty which an officer has wrongly refused to perform”. In plain English, the proposed case needed to identify a public responsibility that the Commissioner had failed to carry out, rather than seek a broad direction to obey all Commonwealth laws. The judgment’s concern was that the proposed relief did not identify the particular duty or the required act.
At [6], the judgment says there is an implied requirement under s 128 that electors receive “a minimum or baseline content” enabling them to consider the proposed law. In plain English, a referendum submission must provide electors with at least some minimum content that lets them consider the constitutional change put to them. The judgment does not define that minimum in detail or find that it was absent in the 2023 referendum.
Also at [6], the Court states there was “nothing in any material before this Court” to support a conclusion that the condition was not satisfied. This explains why the applicant’s concerns about electors’ understanding did not establish the asserted s 128 failure in this application. The decision records the applicant’s concern, but it does not treat the concern itself as proof that the constitutional requirement was breached.
At [7], the proposed proceeding is described as “manifestly hopeless” and “an abuse of process”. In plain English, Edelman J considered the defects apparent from the application serious enough that the proposed case should not proceed to filing. The refusal was made without an oral hearing, consistently with the procedural treatment stated at [7]-[8].
The decision is most directly relevant to proposed mandamus applications that seek a broad command but do not identify a specific public duty said to have been wrongly refused. Its reasoning highlights the importance of explaining what the duty is, how it was not performed, and what performance is sought, especially where the alleged omission concerns a completed event. Here, the referendum had already taken place, yet the proposed order did not identify a specific outstanding act for the Commissioner to perform ([3], [5]).
It is also relevant where an applicant asks the Court to treat a referendum as invalid under s 128 but provides no material supporting the alleged failure to provide electors with the minimum content needed to consider the proposed law. The Court accepted the existence of that implication, but the application still required some basis for saying the condition was not met ([6]).
The decision should not be stretched into a general ruling that complaints about ballot-paper wording or voter understanding cannot be brought before a court. Edelman J did not decide a fully developed challenge to the referendum, define the legal standard for a “clear and concise” question, or determine the sufficiency of particular referendum materials. The stated basis for refusing leave was the proposed application’s deficiencies and the absence of supporting material, not a comprehensive adjudication of every possible s 128 claim ([5]-[8]).
The supplied judgment contains no account of subsequent judicial treatment of [2024] HCASJ 5. On this source material alone, it is not possible to say that later courts have followed, distinguished, or applied Edelman J’s reasoning. The judgment itself does cite earlier authorities, and their roles can be identified from the text: Re Jarman and Hoyts for the mandamus principle; Ruddick by analogy for the s 128 minimum-content implication; Re Young for the leave procedure and abuse-of-process threshold; and Citta Hobart for the manifestly hopeless application point ([5]-[7]).
The decision’s reliance on those authorities should not be mistaken for evidence of how later courts have treated this particular judgment. Its reasoning is a single-Justice determination of a leave application, and its stated conclusion is confined to Clampett’s proposed proceeding and the material before Edelman J. Any account of subsequent treatment would require sources beyond the judgment provided here.
Several issues were not decided. The judgment did not specify what information, in a particular referendum, would constitute the “minimum or baseline content” required by s 128. It did not assess the referendum pamphlet, campaign materials, ballot design, or the exact wording of the question, beyond recording the applicant’s complaints ([3]-[6]).
It also did not decide whether the asserted opportunity to study the proposed law was legally inadequate, whether any identified duty had been breached by the Commissioner, or whether a particular remedy could have been available on a properly particularised application. The judgment’s conclusion was that the proposed application did not provide the required specificity or factual foundation, not that every potential challenge to referendum administration would fail.
Finally, the judgment does not explain what evidentiary or other material would be sufficient to support a claim that s 128’s minimum-content implication had not been met. Its finding was limited: no material before the Court, and no matter available for judicial notice, supported that conclusion on this application ([6]). Those boundaries are important when using the decision in later analysis.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
EDELMAN J
IN THE MATTER OF AN APPLICATION BY LEONARD WILLIAM CLAMPETT FOR LEAVE TO ISSUE OR FILE
[2024] HCASJ 5
Date of Judgment: 7 February 2024
B70 of 2023
ORDER
Representation
The applicant is unrepresented
EDELMAN J. The applicant identifies as an Indigenous Australian Aboriginal of the Dalungbara people with the tribal name of Yarraman. He brings this application following the unsuccessful 14 October 2023 constitutional referendum proposing a law to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
The background to this application is an application for a constitutional writ of mandamus addressed to the Australian Electoral Commissioner ("the Commissioner") that the applicant sought to file in this Court. On 19 October 2023, Gleeson J directed the Registrar pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) to refuse to issue or file the application without the leave of a Justice of this Court. On 11 December 2023, the applicant subsequently filed an application for leave to issue or file the constitutional writ.
In his proposed constitutional writ, the applicant seeks to compel the Commissioner to "apply all the laws of the Commonwealth in all his duties as the Commissioner". The grounds upon which the applicant says that he bases this relief are his claims that the Commissioner: (i) failed prior to the holding of the referendum on 14 October 2023 to submit the proposed law for alteration of the Constitution to the electors; and (ii) failed to put a clear and concise question to the electors on the ballot paper for that referendum.
It seems from the content of the applicant's argument that his complaint about the failure to submit a proposed law for the alteration of the Constitution to the electors is a complaint about the inadequacy of the opportunity for electors, including himself, "to peruse [the] proposed law [and] study and understand its implications". The applicant argues that "the electors who voted in favour of the question may very well have not given their fully informed consent to the question asked". The applicant's affidavit in support of this application for leave to issue or file annexes a ballot paper for the referendum with "No" written as the answer to "Do you approve this proposed alteration?"
The proposed application for leave to issue or file is deficient in two respects. First, a writ of mandamus is a command to perform a public duty which an officer has wrongly refused to perform.1 In circumstances where the proposed relief is sought after the referendum, the applicant provides no detail about what duty the Commissioner has failed to perform nor any specificity as to what duty the Commissioner is required to perform beyond the applicant's assertion of a need for a constitutional writ of mandamus to compel the Commissioner to apply "all the laws of the Commonwealth in all his duties as the Commissioner".
Secondly, to the extent that the applicant impliedly asserts that the referendum was a nullity on the basis that it failed to comply with the requirements of s 128 of the Constitution, there is no legal or factual basis provided for that assertion. It can be accepted that there is an implication in s 128, in the nature of an explicature from words including that "the proposed law shall be submitted in each State and Territory to the electors". That implication is of a requirement that electors be provided with a minimum or baseline content to enable them to consider the proposed law that is submitted to them.2 But even if this could be taken to be the legal basis of an assertion by the applicant of invalidity, there is nothing in any material before this Court, or any matter about which this Court might take judicial notice, to support a conclusion that such a condition was not satisfied.
An application for leave to issue or file falls to be determined without an oral hearing.3 An application that is, on its face, an abuse of process should not be issued or filed.4 For the reasons above, the proposed application for a constitutional writ seeks to invoke the original jurisdiction of this Court on an application that is, on its face, manifestly hopeless and, therefore, an abuse of process.5
For these reasons, and in accordance with r 13.04 of the High Court Rules, the application for leave to issue or file is refused without an oral hearing.
See Re Jarman; ex parte Cook (No 1) (1997) 188 CLR 595 at 604. See also Re Media, Entertainment & Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 394. ↩
See by analogy Ruddick v The Commonwealth (2022) 275 CLR 333 at 388-391 [146]-[153]. ↩
Re Young (2020) 94 ALJR 448 at 451 [12]; 376 ALR 567 at 570. ↩
Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570. ↩
Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 487 [35], [37], 494 [72]-[73]; 400 ALR 1 at 10-11, 20. ↩
(1997) 188 CLR 595
(1993) 178 CLR 379
(2022) 275 CLR 333
(2020) 94 ALJR 448
(2022) 96 ALJR 476
Application for leave to issue or file refused without an oral hearing.