Sue v Hill; Sharples v Hill

199 CLR 462
[1999] HCA 30

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(Judgment by: Gaudron J)

Sue; Sharples v
Hill

Court:

Judges: Gleeson CJ, Gummow, Hayne
Gaudron
McHugh
Kirby
Callinan JJ

Judgment date: 23 June 1999

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Judgment by:
Gaudron J

[98] In each of these matters a case has been stated for the consideration of the Full Court pursuant to s18 of the Judiciary Act 1903 (Cth) ^[134] . Each matter arises out of the 1998 election for the return of six Senators for the State of Queensland to serve in the Parliament of the Commonwealth. The writ for the election was issued on 31 August 1998. Pursuant to the writ, nominations were made on or before 10 September and the election was held on 3 October 1998. Following the counting of votes, the Governor of Queensland certified, on 26 October 1998, that Mrs Heather Hill, the first respondent in each matter, was duly elected as the third Senator. Messrs Ludwig, Mason and Woodley were certified as duly elected as the fourth, fifth and sixth Senators respectively.

[99] The cases have been stated in separate proceedings commenced by the petitioners, Mr Sue and Mr Sharples. They invoke the jurisdiction purportedly conferred on this Court by s354 of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). I say "purportedly conferred" because question (a) in each of the cases stated asks:

"Does s354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?"

Necessarily, that question must be answered first. Before turning to that question, however, it is convenient to refer to the nature of the challenge made by the petitioners and the facts by reference to which each challenge is made.

Nature of the challenge

[100] Each petitioner challenges Mrs Hill's election on the basis that, at the time of her nomination, she did not satisfy the requirements of s44(i) of the Constitution. S44 relevantly provides:

" Any person who:

(i)

is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; ...

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

Facts relevant to the challenge

[101] It appears from each of the cases stated that Mrs Hill was born in the United Kingdom of Great Britain and Northern Ireland ("the United Kingdom") on 9 August 1960. By virtue of her birth she was a citizen of the United Kingdom and Colonies ^[135] . Presumably, she became a British citizen on the commencement of the British Nationality Act 1981 (UK) ^[136] . She migrated to Australia with her parents in 1971 and, except for four trips abroad, has lived and worked here ever since. She married an Australian citizen in 1981 and has two children from the marriage. Both children were born and reside in Australia ^[137] .

[102] Except for a return journey from New Zealand in February 1998, on the occasions that Mrs Hill travelled abroad she used a British passport. In January 1998, she applied for and was granted Australian citizenship. Mrs Hill then applied for an Australian passport. Before it was issued, however, she travelled to New Zealand. An Australian passport was issued while she was there and she used that passport for her return journey.

[103] At the time Mrs Hill was granted Australian citizenship, the Australian Citizenship Act 1948 (Cth) contained no requirement for the renunciation of foreign citizenship ^[138] . Nor, apparently, was there any practice whereby citizenship was renounced ^[139] , the recipient of Australian citizenship being required only to pledge his or her "loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey."

[104] It was not until 18 November 1998, nearly a month after her election was certified, that Mrs Hill became aware of steps that could be taken to renounce her British citizenship. The following day, she contacted the British High Commission, completed a declaration of renunciation, paid a fee of $135 and handed over her British passport. By s12 of the British Nationality Act 1981 (UK), British citizenship ceases upon registration of a declaration of renunciation. It does not appear from either stated case whether registration has yet occurred. However, it does appear that Mrs Hill understood that, at all relevant times from the grant of citizenship, her sole loyalty was to Australia.

Questions relevant to election

[105] It is in the context of s44(i) of the Constitution and the facts recounted above that the following questions are asked in each of the cases stated:

"(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s44(i) of the Constitution?

(c) Was the first respondent duly elected at the Election?"

Jurisdiction: meaning of "disputed election"

[106] As already indicated, it is necessary to consider the question of jurisdiction before turning to the other questions in the cases stated. That consideration must commence with s47 of the Constitution which provides:

" Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises."

[107] Other constitutional provisions which bear on jurisdiction are s51(xxxvi) and s76(ii). S51(xxxvi) confers legislative power on the Parliament with respect to "matters in respect of which this Constitution makes provision until the Parliament otherwise provides". And by s76(ii), the Parliament may make laws conferring original jurisdiction on this Court in any matter "arising under any laws made by the Parliament". It follows that, subject only to express or implied constitutional prohibitions, the Parliament may make laws with respect to the subjects specified in s47 - relevantly, questions as to disputed elections - and confer jurisdiction on this Court with respect to matters arising under those laws.

[108] In exercise of its powers under s51(xxxvi) of the Constitution, the Parliament enacted PtXXII of the Act. PtXXII, which is headed "Court of Disputed Returns", has two Divisions: Div 1, headed "Disputed Elections and Returns", and Div 2, headed "Qualifications and Vacancies". S353(1), which is in Div 1, provides:

" The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."

And s354(1), which is also in Div 1, provides:

" 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 or to the Supreme Court of the State or Territory in which the election was held or return made."

By s354(2), a court to which a petition is referred under s354(1) "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."

[109] S376, which is in Div 2 of PtXXII of the Act, provides:

" Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question."

[110] Two separate jurisdictional arguments were advanced on behalf of Mrs Hill. The first of the arguments advanced at the hearing was that s376 of the Act provides exclusively and exhaustively as to the Court's jurisdiction to determine questions relating to the qualification of a senator or member of the House of Representatives. And that section provides that such questions are to be determined on reference from the House concerned. There having been no reference, according to the argument, there is no jurisdiction to determine the issue.

[111] The argument as to the exhaustive nature of s376 was put on two distinct grounds. It was contended that, in s47 of the Constitution, the expressions "qualification of a senator", "vacancy in either House" and "disputed election" are mutually exclusive. And being mutually exclusive, it was argued, the expression "disputed election" in s47 refers to the process involving the casting and counting of votes but does not include any question as to the disqualification of a candidate. That being its constitutional meaning, it was said, similar expressions in the Act - for example, an "election ... may be disputed" in s353(1) - must be similarly construed.

[112] S47 must be construed in its constitutional setting. In particular, it must be construed in the context of s44 which stipulates, in its concluding words, that a person who is disqualified by reason of any matter specified in that section "shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives" (emphasis added). Once it is appreciated that disqualification is a matter affecting a candidate's capacity to be elected and not merely his or her capacity to sit in the Parliament, it follows that "disputed election" in s47 of the Constitution includes an election which is disputed on the basis of a candidate's ability to be chosen.

[113] Moreover, as a matter of ordinary language, the expressions "qualification of a senator", "vacancy in either House" and "disputed election" are not mutually exclusive. As Dawson J pointed out in Sykes v Cleary (No 1):

"Obviously a question of qualifications may arise in a context other than that of a disputed election. Conversely, a disputed election may involve a question of the qualification of a person to be chosen as a senator or member. Similarly, while in some circumstances the question of a vacancy may arise in connection with a disputed election, in other circumstances it may arise independently of such an election." ^[140]

[114] Given its constitutional setting and given the considerations referred to by Dawson J in Sykes v Cleary (No 1) ^[141] , it follows, as this Court held in In re Wood ^[142] , that "[t]he categories of questions mentioned in s47 of the Constitution ... are not mutually exclusive". That being so, s47 provides no basis for treating those questions as mutually exclusive in the Act.

[115] The second argument as to the exclusive and exhaustive nature of s376 of the Act was made by reference to the nature of the inquiry involved when an election is disputed and, also, by reference to the terms of the Act. It was put that, traditionally, questions as to the qualifications of members have been the exclusive province of the House of Parliament concerned. That being so, it was said, Parliament should not be taken to have surrendered its authority with respect to those matters unless it has made its intention in that regard clear either by express words or as a matter of necessary implication. Additionally, it was put that, not only had Parliament not made clear its intention to abrogate its power with respect to the qualifications of Senators and members of the House of Representatives, but it was clear from the terms of the Act, particularly s362 and s376, that it intended otherwise.

[116] It is not in doubt that, historically, the House of Commons did assert exclusive authority to determine questions with respect to the qualifications of its members and, also, with respect to disputed elections ^[143] . However, that position changed with the passage of the Parliamentary Elections Act 1868 (UK) ^[144] . That Act provided for petitions to be presented in "[o]ne of Her Majesty's Superior Courts of Common Law at Westminster or Dublin" ^[145] to "determine whether the Member whose Return or Election is complained of, or any and what other Person, was duly returned or elected, or whether the Election was void" ^[146] . And under that Act, petitions might be based on the disqualification of the candidate concerned ^[147] . Moreover, various statutory provisions dating from 1715 allowed that the question whether a member was disqualified on a ground specified in the relevant legislation was justiciable at the suit of any person who brought an action to recover the penalty provided by that legislation ^[148] .

[117] S46 of the Constitution seemingly has its origins in United Kingdom legislation of the kind to which reference was last made. That section provides:

"Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction." ^[149]

[118] It was put in the course of argument that s46 is to be construed as applying only to a person who sits after the relevant House has determined that he or she is not qualified so to do. However, constitutional provisions are to be read broadly and according to their terms: more significantly for present purposes, they are not to be read as subject to limitations which their terms do not require ^[150] . Accordingly, s46 is not to be construed as applying only in the event that it has been determined by the House of Parliament concerned that the person in question is not qualified to sit in that House ^[151] .

[119] In the light of the practice that had developed in England by the late 19th century and in light of the clear words of s46 of the Constitution, it is impossible to say that historical considerations require the Act to be construed on the basis that the Houses of Parliament are not to be taken to have surrendered their exclusive authority to determine questions as to the qualification of their members unless an intention to that effect is made clear either by express words or as a matter of necessary implication. Rather, given that, as a matter of ordinary usage, the expression "disputed election" includes an election disputed on the basis that a candidate is not capable of being chosen, the question is whether there is anything in the Act to indicate that it does not bear that meaning.

[120] As already indicated, the argument that, in the Act, expressions relating to disputed elections are to be read as not including an election which is disputed on the basis of a candidate's qualification was put by reference to s362 and s376 of the Act. S362 relevantly provides:

"(1) If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.

...

(3)

The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void:

(a)

on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or

(b)

on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

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.

(4)

The Court of Disputed Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground that someone has contravened the Broadcasting Services Act 1992 or the Radiocommunications Act 1992."

"Illegal practice" is defined in s352(1) of the Act to mean "a contravention of [the] Act or the regulations."

[121] It was argued on behalf of Mrs Hill, by reference to Hudson v Lee ^[152] and Webster v Deahm ^[153] , that s362 is an exhaustive statement of the grounds on which an election may be declared void or a person declared not to have been duly elected. In Hudson v Lee the question was whether the Court could declare an election void or a person not to have been duly elected by reason of conduct which was said to be illegal but which was not dealt with by the Act. It was said in that case that "s362 ... provides exhaustively as to the general grounds on which an election may be invalidated or declared void." ^[154] In context, however, it is clear that what were being referred to were grounds relating to the casting and counting of votes, as distinct from the question whether a candidate was qualified to be chosen. The case is of no assistance in the present matter. Moreover, the argument for the first respondent is not supported by Webster v Deahm ^[155] . In that case, the possibility that an election might be invalidated or declared void by reason that the candidate was not qualified to be chosen was specifically acknowledged ^[156] .

[122] S362 of the Act is not to be construed in isolation. Rather, it is to be construed in the context of s360 which relevantly provides:

"(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:

...

(v)

To declare that any person who was returned as elected was not duly elected;

(vi)

To declare any candidate duly elected who was not returned as elected;

(vii)

To declare any election absolutely void;

...

(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election."

[123] As will later appear, s360(2) of the Act does not have the effect that the power to invalidate an election or declare it void is entirely at large. That aside, when s362 is read in the context of s360, it is clear that s362 governs the grant of relief when an election is challenged on the ground of bribery, corruption, undue influence or illegal practice. But neither its context nor its terms require it to be construed as confining a petition to the grounds with which s362 deals. That being so, s362 provides no basis for concluding that an election may not be challenged under Div 1 of PtXXII on grounds going to a candidate's qualifications.

[124] Further and contrary to the submission that s362 of the Act indicates that an election cannot be challenged under Div 1 of PtXXII on the ground that a candidate is not eligible to be chosen, that very issue may be raised by an allegation of "illegal practice", a matter with which s362 is directly concerned. As already indicated, "illegal practice" is defined in s352(1) of the Act to include "a contravention of [the] Act". That expression means failure to comply with a provision of the Act ^[157] . It does not mean the commission of an offence.

[125] The relevance of qualifications to "illegal practice" emerges from a consideration of s170 and s339(3) of the Act. S170 requires, amongst other things, that a candidate for election state in his or her nomination paper that he or she "is qualified under the Constitution ... to be elected as a Senator or a member of the House of Representatives, as the case may be". And s339(3) provides:

"A person must not:

(a)

make a statement in his or her nomination paper that is false or misleading in a material particular; or

(b)

omit from a statement in his or her nomination paper any matter or thing without which the statement is misleading in a material particular.

Penalty: Imprisonment for 6 months." ^[158]

[126] It is a basic rule of construction that statutory definitions are not to be read as subject to exceptions or limitations which their terms do not require ^[159] . That being so, a candidate's qualifications can be put in issue in a petition under Div 1 of PtXXII of the Act alleging a contravention of s339(3)(a) of the Act in relation to the statement required by s170 with respect to his or her qualifications. Accordingly, it is clear that s362 cannot be read as confining the jurisdiction conferred under Div 1 of PtXXII of the Act to elections which are challenged on a ground relating to the casting or counting of votes as distinct from the candidate's ability to be chosen. It remains to be considered whether s376, which is in Div 2 of PtXXII, has that effect.

[127] It was argued on behalf of Mrs Hill that s376 of the Act, which is concerned with the reference of questions with respect to the qualifications of senators and members of the House of Representatives, is to be construed as evincing an intention that, notwithstanding the apparent width of s360 and s362, questions as to qualifications are to be dealt with under s376 and not otherwise. The argument was put by reference to the rule of construction discussed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia ^[160] . In that case it was said:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." ^[161]

[128] The rule discussed in Anthony Hordern & Sons Ltd is that embodied in the Latin maxim generalia specialibus non derogant. The rule applies only when the general provision would otherwise encompass the matter dealt with by the special or more limited provision. However, s376 is not a provision dealing with a special matter that would otherwise fall within the general provisions of Div 1 of PtXXII of the Act. Divisions 1 and 2 each deal with separate topics: Div 1 with elections which are challenged by petition under s353(1) and Div 2 with questions as to qualifications or respecting a vacancy which are raised otherwise than by petition under Div 1. That being so, there is no basis for construing s376 in a manner which would restrict the ordinary and natural meaning of the provisions of Div 1 of PtXXII of the Act.

[129] As neither Div 1 nor Div 2 of PtXXII of the Act is to be construed in a manner that would deny jurisdiction in these matters, it is necessary to turn to the second jurisdictional argument advanced on behalf of Mrs Hill.

Jurisdiction: judicial power

[130] As already indicated, the Parliament's power to confer jurisdiction on this Court with respect to disputed elections is subject to any express or implied constitutional prohibition in that regard. It is well settled that Ch III of the Constitution is the source of an implied prohibition which prevents the conferral of any power on this or any other federal court which is not judicial power or a power ancillary or incidental to the exercise of judicial power ^[162] . It was contended on behalf of Mrs Hill that the power purportedly conferred by PtXXII of the Act is not judicial power and, in consequence, the provisions of that Part are invalid.

[131] Before turning to the argument, it is convenient to say something as to the nature of judicial power. The difficulties associated with defining "judicial power" are well known ^[163] . However, it has two aspects: the first is concerned with the nature or purpose of the power, the second with the manner of its exercise. So far as is relevant to this case, the nature of the power may be described as that brought to bear for the purpose of "making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies" ^[164] . The second aspect of judicial power is that it must be exercised in accordance with the judicial process ^[165] . The provisions of PtXXII of the Act are challenged by reference to the nature of the power involved as well as the manner of its exercise.

[132] So far as concerns the first aspect of judicial power, there are some powers which are inherently judicial and which the Parliament can confer only on a court ^[166] . The power to determine guilt or innocence is one ^[167] . There are other powers which are inherently non-judicial and which cannot be conferred on a court. The power to determine what the future rights or liabilities of people in particular relationships should be is a power of that kind ^[168] . And some powers are such that they take their character from the body or tribunal in which they are reposed. It will later be necessary to deal in more detail with powers of the last-mentioned kind.

[133] It was put on behalf of Mrs Hill that the power to determine disputed elections is a power that is intractably legislative in character and, thus, one which Parliament cannot confer on a court. That contention must be rejected. The power is not a law-making power, that being the essence of legislative power. Rather, it is a power which s47 of the Constitution allows that the Houses of Parliament may exercise, presumably in recognition of the fact that the power had been traditionally so exercised. But if and when the power is so exercised, it is exercised as an incident of the status of the relevant House as one of the Houses of Parliament. If it is to be characterised, it is more properly characterised as a power which, when exercised by the Houses of Parliament, is incidental or ancillary to the exercise of legislative power. But that says nothing as to its character when exercised by some other body or tribunal.

[134] It is well settled that some powers bear a "double aspect" ^[169] so that they may be conferred on a court or on some other body and, when conferred, they take their character from the body in which they are reposed ^[170] . Thus, it was said in R v Hegarty; Ex parte City of Salisbury:

"It is ... recognized that there are functions which may be classified as either judicial or administrative, according to the way in which they are to be exercised. A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved." ^[171]

[135] In Federal Commissioner of Taxation v Munro, Isaacs J observed that "the determination of the validity of parliamentary elections" was an instance of a function "capable of assignment ... to more than one branch of government" because it was "capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances." ^[172] However, it may be that it is not a function that can validly be conferred on an administrative tribunal.

[136] What is put in issue when the validity of an election is challenged is the right of the person concerned to sit and vote in the Senate or in the House of Representatives. That is a legal right "arising from the operation of the law upon past events or conduct." ^[173] And, prima facie, the making of a binding determination with respect to that right involves the exercise of judicial power unless it is made by the relevant House of Parliament under s47 of the Constitution or some person or tribunal acting as its delegate. However, that issue need not be explored.

[137] If not an absolute criterion of judicial power ^[174] , the "giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct" is the essence of what is involved in its exercise. At least that is so if the decisions are binding. There are, however, two matters which suggest that determination of a reference under Div 2 of PtXXII of the Act may not involve a binding determination as to legal rights and, thus, may not involve the exercise of judicial power.

[138] The first matter that bears on the nature of the power conferred by Div 2 of PtXXII of the Act is that s376 allows for the reference of "[a]ny question respecting the qualifications of a Senator or of a Member of the House of Representatives". Were that section to be construed as permitting the reference of discrete questions isolated from the ultimate question whether the person concerned had the right to sit and vote in the relevant House of Parliament, the reference of a question of that kind would not require the determination of any legal right ^[175] . The second matter is that, although, by the combined force of s381 and s368, decisions are to be final and conclusive, there is no provision ensuring that a decision will be given effect except where the question referred relates to the election of a Senator or Member of the House of Representatives and, thus, s374 applies ^[176] . Again, this issue need not be explored as Div 2 of PtXXII of the Act is clearly severable.

[139] The matters which bear on the validity of Div 2 of PtXXII of the Act have no relevance to proceedings disputing the validity of an election under Div 1. A challenge to the validity of an election necessarily puts in issue the right of a person to sit and vote in one of the Houses of Parliament. And by s374 of the Act, effect is to be given to the decision as follows:

"(i) If any person returned is declared not to have been duly elected, the person shall cease to be a Senator or Member of the House of Representatives;

(ii) If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly;

(iii) If any election is declared absolutely void a new election shall be held."

[140] Provided that the power to determine the validity of an election is conferred in a way that involves the giving of a binding decision as to the right of a person to sit and vote in the House of Parliament to which he or she was returned, as is the case with the power conferred by Div 1 of PtXXII of the Act, there is no reason why that power cannot be conferred on a court, as it has been in this country for very many years ^[177] .

[141] It is necessary now to turn to the question whether the provisions of Div 1 of PtXXII have the effect that the power to determine the validity of a disputed election is one that is to be exercised other than in accordance with the judicial process. For present purposes it is sufficient to note that, in general terms, the judicial process is one that involves the independent and impartial application of the law to facts found on evidence which is probative of those facts ^[178] and the observance of procedures that enable the parties to put their case and to answer the case made against them ^[179] .

[142] The submission that Div 1 of PtXXII of the Act does not and was not intended to confer judicial power, in the sense of a power to be exercised in accordance with the judicial process, was made by reference to s354(1) and s354(6), s360(2), s361(1), s363, s363A, s364, s368, s369, s373 and s374. Additionally, it was pointed out that no provision of Div 1 of PtXXII confers power on the Court to enforce its decisions. So far as concerns s354(1), the argument concentrated on that sub-section's statement that "[t]he High Court shall be the Court of Disputed Returns" ^[180] . It was put that jurisdiction was not conferred on the High Court as such. Rather, it was contended that the High Court was conscripted to act as a special electoral tribunal. And according to the argument, that was confirmed by the unusual nature of the other provisions upon which the argument relied.

[143] It may be that s354(1) of the Act could have been better expressed. However, its terms are capable of explanation on the basis that Parliament, not surprisingly, perceived that it was conferring a special jurisdiction on the Court and, for the exercise of that jurisdiction, the Court should be granted special status as "the Court of Disputed Returns". Moreover, it is apparent from the terms of s360(1) that the jurisdiction was not intended to be reposed in a special tribunal whose functions the High Court was conscripted to perform but, instead, was conferred on the Court as an additional, special jurisdiction with powers considered appropriate to its exercise.

[144] Subs(1) of s360 of the Act provides that the powers of the "Court of Disputed Returns ... shall include" the powers thereafter specified. In context, the words "shall include" constitute legislative recognition that the Court is possessed of other powers, including those conferred by the Judiciary Act, and confirm, as earlier suggested, that Parliament intended to confer additional jurisdiction on the Court and not to conscript it as a special electoral tribunal.

[145] The various provisions by reference to which it was contended that the powers conferred by Div 1 of PtXXII of the Act are to be exercised otherwise than in accordance with the judicial process fall into three broad groups. In the first are those which, it is contended, confer broad, general discretions to be exercised without regard to legal standards; in the second are those which give directions of a kind not normally given to courts; and the third comprises provisions with respect to the effect of decisions.

[146] The first group of provisions comprises s360(2) and s364 of the Act. S360(2) provides:

" The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient."

The powers to which s360(2) refers include the power to declare a candidate who was returned not to have been duly elected ^[181] , to declare another candidate duly elected ^[182] and to declare an election absolutely void ^[183] , as well as ancillary powers with respect to the adjournment of proceedings, the attendance and examination of witnesses etc ^[184] .

[147] S364 provides:

" The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."

[148] Notwithstanding the terms of s360(2) of the Act, the power to invalidate an election is not at large. As has been seen, it is confined by s362 of the Act. It is also confined by s365 and s366 ^[185] . Even allowing that the power to invalidate an election is confined by s362, s365 and s366, s360(2) and s364 are, perhaps, more appropriate to an administrative tribunal than to a court. However, in a context in which power is conferred on a court, they are to be construed on the basis that the powers in question are to be exercised judicially ^[186] .

[149] When s360(2) of the Act is construed on the basis that the power to invalidate an election is to be exercised judicially, it follows that the power is to be exercised only on relevant legal grounds, specifically those recognised by the Constitution, the Act and, to the extent that it is not otherwise excluded, the common law. S364 is to be similarly construed. Indeed, a court would be acting neither in accordance with the substantial merits of the case nor in good conscience if it were to determine the issues raised otherwise than by application of the relevant law to the facts. Nor would it be acting in good conscience if it were to find facts other than on evidence probative of them, evidence which may or may not accord with the rules of evidence. Construed in this way, neither s360(2) nor s364 has the consequence that the power conferred by s360 of the Act is not judicial in character.

[150] Of that group of provisions which, it is said, contain directions of a kind not usually associated with the exercise of judicial power, it is convenient to deal first with s354(6) and s368. Subs(6) of s354 provides:

" The jurisdiction conferred by this section may be exercised by a single Justice or Judge."

And s368 states:

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

[151] The effect of s368 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 s354(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 s73 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" ^[187] . That being so, the absence of appellate review says nothing as to the character of the power conferred by s360 of the Act.

[152] Other provisions which, it was argued, contain directions not usually associated with the exercise of judicial power are s361(1), s363, s363A and s369. Subs(1) of s361 requires a court exercising jurisdiction under s354 of the Act to "inquire whether or not the petition is duly signed". And s363A requires that such a court "make its decision ... as quickly as is reasonable in the circumstances." Neither provision is inconsistent with the exercise of judicial power.

[153] S363 and s369 impose obligations on the Chief Executive and Principal Registrar of this Court. By s363, he is to report any finding of illegal practices to the relevant Minister; and by s369, he is required, forthwith after the filing of a petition, to send copies of the petition to the Clerk of the House of Parliament affected and either the Governor-General ^[188] or the Speaker of the House of Representatives ^[189] . The imposition of these duties on the Chief Executive and Principal Registrar in no way affects the independence of the Court or the manner in which it exercises jurisdiction under the Act. That being so, s363 and s369 do not have the consequence that the power to invalidate an election is not judicial in character.

[154] The final group of provisions to which reference should be made comprises s373 and s374 of the Act. S373 relevantly provides that "costs awarded by the Court ... shall be recoverable as if the order of the Court were a judgment of the High Court of Australia, and such order ... may be entered as a judgment of the High Court of Australia, and enforced accordingly." That section is to be read in the context of s354(2). By that sub-section:

" When a petition has been ... referred for trial to the Federal Court of Australia or to the Supreme Court of a State or Territory, that 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."

Doubtless, s373 of the Act could have been better drafted. In the context of s354(2), however, it is clear that its purpose is to deal with costs whether the petition is tried in this Court, the Federal Court or a State or Territory Supreme Court. That being so, it says nothing as to the nature of the power exercised under Div 1 of PtXXII of the Act.

[155] The terms of s374 have already been noted. In short, s374 operates to give a decision invalidating an election or return the force of law but does not give the Court power to enforce its own decisions. It is contended that, there being no power in the Court to enforce its own decisions, s374 indicates that the power involved in the hearing and determination of electoral petitions was not intended to be judicial power.

[156] It has long been accepted that the power to enforce decisions by execution is an important indicator of judicial power ^[190] . However, it was pointed out in Brandy v Human Rights and Equal Opportunity Commission that "it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision." ^[191] In that case, reference was made to the execution of the orders of courts of petty sessions "by means of a warrant granted by a justice of the peace as an independent administrative act." ^[192] The position is even plainer where, as here, the decision is given the force of law. In that situation, enforcement powers are quite unnecessary.

Jurisdiction: conclusion

[157] The arguments advanced in support of the contention that this Court lacks jurisdiction to hear and determine the petitions filed by Messrs Sue and Sharples are without substance. It follows that, in each of the stated cases, question (a) should be answered "Yes".

Citizenship of a foreign power

[158] It is not in issue that the requirements of s44 of the Constitution must be satisfied at the time of nomination ^[193] . Nor is it in issue that, at that time, Mrs Hill had taken no step to renounce her British citizenship. The issue presented for decision is whether she had to. In this regard, it was put that, by reason of the special relationship between Australia and the United Kingdom, the latter is not a "foreign power" for the purposes of s44(i) of the Constitution. Alternatively, it was put that having taken out Australian citizenship, nothing further was required of Mrs Hill to renounce her British citizenship.

[159] It may be accepted that, at federation, the United Kingdom was not a foreign power for the purposes of s44(i) of the Constitution ^[194] . In this regard, the Commonwealth of Australia was brought into being by an Act of the Parliament of the United Kingdom, namely, the Commonwealth of Australia Constitution Act 1900 (Imp) ("the Constitution Act"). And it was brought into being as "one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland" ^[195] (now the United Kingdom of Great Britain and Northern Ireland). Moreover, the Commonwealth remains under the Crown, as is readily seen from s1 of the Constitution. By that section, the legislative power of the Commonwealth is "vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives". Further, the Governor-General is appointed by the Queen ^[196] , proposed laws may be reserved by the Governor-General "for the Queen's pleasure" ^[197] and laws may be disallowed by the Queen ^[198] . And by s61 of the Constitution, "[t]he executive power of the Commonwealth is vested in the Queen".

[160] One other matter relevant to the position at federation should be noted. At federation and for some considerable time thereafter, the people of Australia were subjects of the Queen ^[199] . And they remain so described in various provisions of the Constitution, including in s34 which provided as to the qualifications of a member of the House of Representatives until the Parliament legislated to different effect ^[200] . By s34(ii), a candidate for election to the House of Representatives was required to be "a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State." ^[201]

[161] It is in the context of the constitutional provisions referred to above that the question arises whether the United Kingdom is a foreign power. As a matter of ordinary language, a foreign power is any sovereign state other than the state for whose purposes the question of the other's status is raised. That being so, the first question that arises is whether, in s44(i) of the Constitution, "foreign power" bears its ordinary meaning or is used in some special sense which forever excludes the United Kingdom. And if it bears its ordinary meaning, the further question arises whether the relationship between the United Kingdom and the Commonwealth has been so transformed that the United Kingdom is now a foreign power.

[162] It would be surprising if "foreign power" is used in any special sense in s44(i) of the Constitution. After all, it appears in a foundational document which was clearly intended to serve the Australian people well into the future ^[202] . Moreover, and as the Solicitor-General for the Commonwealth who appeared in the interests of petitioners submitted, "foreign power" is an abstract concept apt to describe different nation states at different times according to their circumstances. For example, Papua Nuigini would not properly have been described as a "foreign power" prior to the grant of independence, although it now is.

[163] Given that the phrase "foreign power" may refer to different nation states at different times according to their circumstances, there would need to be some clear indication in the Constitution that, in s44(i), "foreign power" is used in a sense that permanently excludes the United Kingdom before that conclusion could be reached. The only matters which might indicate that the United Kingdom is permanently excluded are the constitutional references to "the Crown of the United Kingdom of Great Britain and Ireland", "the Queen" and "subjects of the Queen" to which reference has already been made. There are two considerations which tell against their constituting an indication of that kind.

[164] The first consideration which tells against the United Kingdom not being permanently excluded from the concept of "a foreign power" in s44(i) of the Constitution is that the Constitution, itself, acknowledges the possibility of change in the relationship between the United Kingdom, on the one hand, and the Commonwealth of Australia and the Australian States, on the other. Thus, for example, s34 acknowledges that Parliament may alter the qualifications for election so as to eliminate the requirement that candidates be subjects of the Queen. Of greater significance is that, by s51(xxxviii) of the Constitution, the Commonwealth has power to legislate with respect to "the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia". It was pursuant to s51(xxxviii) that the Parliament of the Commonwealth enacted the Australia Act 1986 (Cth), to which further reference will shortly be made.

[165] The second consideration is that, although the notion of "the divisibility of the Crown" may not have been fully developed at federation, that notion is implicit in the Constitution. It is implicit in the existence of the States as separate bodies politic with separate legal personality, distinct from the body politic of the Commonwealth with its own legal personality. The separate existence and the separate legal identity of the several States and of the Commonwealth is recognised throughout the Constitution, particularly in Ch III ^[203] .

[166] Once it is accepted that the divisibility of the Crown is implicit in the Constitution and that the Constitution acknowledges the possibility of change in the relationship between the United Kingdom and the Commonwealth, it is impossible to treat the United Kingdom as permanently excluded from the concept of "foreign power" in s44(i) of the Constitution. That being so, the phrase is to be construed as having its natural and ordinary meaning.

[167] As has already been made clear, the phrase "foreign power" is apt to describe different nation states at different times or, as was said in Nolan v Minister for Immigration and Ethnic Affairs ^[204] in relation to the word "aliens" in s51(xix) of the Constitution, "developments necessarily produce different reference points". To acknowledge that, in some constitutional provisions, some words and phrases are capable of applying to different persons or things at different times is not to change the meaning of those provisions. It is simply to give them their proper meaning and effect ^[205] .

[168] It is necessary, at this point, to consider whether there has been such a change in the relationship between the United Kingdom and Australia that the former is now a foreign power. In this regard, a change in that relationship has been noted by this Court on several occasions. Thus, for example, Barwick CJ observed in New South Wales v The Commonwealth that "[t]he progression [of the Commonwealth] from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs" and the Commonwealth "in due course matured [into independent nationhood] aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption." ^[206]

[169] The changed nature of the relationship between the United Kingdom and Australia was also noted in Nolan. It was said in that case:

"The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown." ^[207]

[170] For present purposes, it is necessary to mention only three developments in the transformation of the relationship between the United Kingdom and Australia. The first is the Statute of Westminster 1931 (Imp) and the Statute of Westminster Adoption Act 1942 (Cth). The effect of those Acts, as Gibbs J observed in Southern Centre of Theosophy Inc v South Australia, was that "the Commonwealth ... finally cast off its colonial status" ^[208] .

[171] The second development to which reference should be made is the process by which British subjects became citizens of the independent nation states into which the British Empire was transformed. Part of that process is to be seen in the steps whereby, in the United Kingdom, the status of a British subject was transformed, first, into that of a "citizen of the United Kingdom and Colonies" and later "British citizen" ^[209] . In this country, there was a similar process. The concept of citizenship was first introduced by the Nationality and Citizenship Act 1948 (Cth) ^[210] , later known as the Citizenship Act 1948 (Cth) ^[211] and currently called the Australian Citizenship Act 1948 (Cth) ^[212] . Initially, by s7(1) of that Act, however, an Australian citizen was also a British subject. In 1969, the Act was amended so that an Australian citizen was described as having the status of a British subject ^[213] . Finally, by amendment in 1984 (taking effect from 1 May 1987) all reference to the "status of British subject" was removed in favour of the status of Australian citizen ^[214] . That process, both in this country and the United Kingdom, renders the constitutional references to "a subject of the Queen" of little or no significance in determining whether the United Kingdom is now a foreign power.

[172] The final matter which should be mentioned is the enactment of the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) (together referred to as "the Australia Acts"), the long title of the former of which is:

"An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation".

By s1 of each of the Australia Acts, it is provided that:

"No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory."

By other provisions of the Australia Acts, the States are authorised to legislate repugnantly to the laws of the United Kingdom ^[215] and the responsibility of the United Kingdom government in relation to the States was terminated ^[216] , as were appeals to the Privy Council ^[217] .

[173] At the very latest, the Commonwealth of Australia was transformed into a sovereign, independent nation with the enactment of the Australia Acts. The consequence of that transformation is that the United Kingdom is now a foreign power for the purposes of s44(i) of the Constitution.

[174] The remaining issue to be considered in relation to Mrs Hill's ability to be chosen as a Senator is whether, as was contended on her behalf, her acquisition of Australian citizenship was sufficient to bring her British citizenship to an end. It is not in doubt that it did not have that effect under the law of the United Kingdom. However, it was contended that that was its effect in Australian law.

[175] It is clear that an Australian court may, in some circumstances, refuse to apply the law of another country in determining whether a person is or is not a citizen of that country. Thus, as was pointed out in Sykes v Cleary (No 2) ^[218] , it may refuse to "apply a foreign citizenship law which does not conform with established international norms or which involves gross violation of human rights." However, the question whether a person is a citizen of a foreign country is, as a general rule, answered by reference to the law of that country. Moreover, the question whether a person has or has not renounced foreign citizenship is to be determined in a context in which the possibility of dual citizenship is recognised by the common law ^[219] , and, as a matter of necessary implication, is recognised by the Australian Citizenship Act 1948 (Cth) in the case of naturalised Australians ^[220] .

[176] Given that a naturalised Australian may have dual citizenship, it is necessary that he or she take some step to renounce his or her former citizenship before he or she can be treated under Australian law as having renounced it. At least that is so if foreign citizenship is not automatically brought to an end by the law of the country concerned. Once it is accepted that a person must take some step to renounce his or her foreign citizenship, it follows, as was held in Sykes v Cleary (No 2) ^[221] , that it is necessary that he or she take reasonable steps to do so. Mrs Hill took no such steps prior to her nomination for election to the Senate. It follows that, at that time, she was still a British citizen. Accordingly, question (b) in each of the cases stated for the consideration of the Full Court should be answered "Yes" and question (c) in each of the cases stated should be answered "No".

Relief

[177] Three questions are asked with respect to relief in the cases stated. They are:

"(d) If no to (c), was the Election void absolutely?

(e) If no to (d), should the [Australian Electoral Commission] conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned?

(f) Save for those otherwise dealt with by order, who should pay the costs of the Stated Case[s] and of the hearing of the Stated Case[s] before the Full High Court?"

[178] In In re Wood ^[222] , this Court considered whether, in the case of the return of a candidate who lacked the qualifications to be elected, the Senate election in question should be declared absolutely void and a new election ordered, on the one hand, or a recount ordered on the other. In that case it was held that, "no effect [could] be given for the purpose of the poll to the placing of a figure against the name of a candidate who [was] not qualified to be chosen", but nonetheless, "[t]hat [was] no reason for disregarding the other indications of the voter's preference as invalid." ^[223] In the result, a recount was ordered, the recount to be conducted in the same manner as required by s273(27) of the Act where a vote is cast for a deceased candidate. That was because, "the true legal intent of the voters ... [could thereby] be ascertained" ^[224] . So it is in this case. That being so, there is no basis for declaring the election absolutely void. Accordingly question (d) in each of the cases stated should be answered "No".

[179] Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount, it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted. As formulated, question (e) posits that a recount should be conducted only for the third Senate position. However, it is possible that a recount of all votes might have consequences for the persons returned as the fourth, fifth and sixth Senators. Those persons were not represented at the hearing. It may be that that was because, having regard to the terms of question (e), they were of the view that their positions would not be affected by a recount. In the circumstances, the appropriate course is to answer question (e) in each of the cases stated "Inappropriate to answer", leaving the issue to be determined by a single Justice after hearing such submissions, if any, as the persons returned as the fourth, fifth and sixth Senators wish to make.

[180] So far as concerns the question of costs, the argument before the Full Court was directed, in the main, to the provisions of the Act and the constitutional issues thereby raised. In the circumstances, the costs of the petitioner and the first respondent in each of the cases stated should be paid by the Commonwealth. The Australian Electoral Commission, the second respondent in each matter, should bear its own costs.

Answers to questions

[181] The questions in each stated case should be answered as follows:

Question (a): Does s354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?

Answer: Yes.

Question (b): Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s44(i) of the Constitution?

Answer: Yes.

Question (c): Was the first respondent duly elected at the Election?

Answer: No.

Question (d): If no to (c), was the Election void absolutely?

Answer: No.

Question (e): If no to (d), should the second respondent conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned?

Answer: Inappropriate to answer.

Question (f): Save for those otherwise dealt with by order, who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?

Answer: The Commonwealth should pay the costs of the petitioner and the first respondent. The second respondent should bear its own costs.