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Sue v Hill; Sharples v Hill

199 CLR 462
[1999] HCA 30

(Decision by: McHugh J)

Sue; Sharples v
Hill

Court:
High Court of Australia

Judges: Gleeson CJ, Gummow, Hayne
Gaudron

McHughKirby
Callinan JJ

Judgment date: 23 June 1999

Decision by:
McHugh J

[182] Chief Justice Gleeson and Justice Callinan, sitting as judges of the Court of Disputed Returns, have each stated a case to the Full Court of this Court asking the Court to answer six questions arising out of petitions filed in the Court of Disputed Returns. Each petition challenges the declaration of the Australian Electoral Officer for Queensland, made on 23 October 1998 pursuant to s283 of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), that Mrs Heather Hill was duly elected as a Senator for the State of Queensland. The petitions claim that she was not capable of being chosen as a member of the Senate at the election held on 3 October 1998. They assert that at the time of nomination Mrs Hill was a British subject or citizen and was therefore a citizen of a foreign power within the meaning of s44(i) of the Constitution and constitutionally incapable of being chosen or sitting as a Senator of the Parliament of the Commonwealth.

[183] Mrs Hill concedes that she was a British citizen at the time of her nomination for election to the Senate but she denies that it follows that she was incapable of being chosen or sitting as a Senator. In addition, she contends that the Court of Disputed Returns had no jurisdiction to determine whether she was qualified to be chosen as a Senator. She contends that, upon the proper construction of the Electoral Act, the Parliament of the Commonwealth has not referred issues concerning the qualifications of members to the Court of Disputed Returns and that, if such issues have been referred, it is an invalid attempt to confer non-judicial power on the Court.

Jurisdiction

[184] In my opinion, the Electoral Act does not purport to give the Court of Disputed Returns jurisdiction to hear an election petition which raises the bare question whether a member of the federal Parliament was constitutionally qualified to stand for election. That question may arise on a referral by one of the Houses of Parliament to the Court of Disputed Returns after a person has been elected. It may also arise incidentally in determining whether an election should be set aside on the ground that the elected person has committed an "illegal practice" [225] by falsely declaring that he or she was "qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a member of the House of Representatives" [226] . But in my opinion the bare question of a member's constitutional qualification cannot arise on an election petition presented under Div 1 of PtXXII of the Electoral Act.

[185] The petition filed by Mr Sue does not allege that Mrs Hill had engaged in any illegal practice in connection with the election. Mr Sharples' petition did make such an allegation. But in this Court he withdrew it [227] . That being so, the Court of Disputed Returns had no jurisdiction to decide the question of Mrs Hill's qualification for election to the Senate.

The Court of Disputed Returns

[186] Under the Westminster system of government, the houses of parliament have inherent jurisdiction to determine whether their members are qualified to be or were duly elected as members of the parliament. That right was established as the result of the proceedings in Goodwin v Fortescue [228] after King James I had issued a proclamation which ordered, inter alia, that no bankrupt or outlaw should be elected to Parliament and that election returns should be sent to Chancery [229] . The King claimed that the "house ought not to meddle with Returns, being all made into the Chancery, and are to be corrected or reformed by that court only" [230] . Although the House agreed to a new election in that case, its privilege to decide the matter was thereafter not disputed [231] . Nor was any right in the Chancery further asserted [232] .

[187] The privileges of the Senate and the House of Representatives to decide the validity of disputed elections to or the qualification of members of those Houses are recognised in 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."

[188] Pursuant to the powers conferred by the opening words of s47 and by s51(xxxvi) and s51(xxxix) of the Constitution [233] , the Parliament has enacted the Electoral Act which regulates the holding of elections for the Senate and the House of Representatives and provides for a Court of Disputed Returns to determine challenges to the election of members of those Houses. It also provides for the Senate and the House of Representatives to refer any question respecting the qualification of a Senator or a member or respecting a vacancy to the Court of Disputed Returns.

Division 1 of PtXXII

[189] Relevantly, Div 1 of PtXXII of the Electoral Act provides:

" 353 Method of disputing elections

(1)
The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
...

354 The Court of Disputed Returns

(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 or to the Supreme Court of the State or Territory in which the election was held or return made.
...
(6)
The jurisdiction conferred by this section may be exercised by a single Justice or Judge.

355 Requisites of petition
Subject to s357, every petition disputing an election or return in this Part called the petition shall:

(a)
set out the facts relied on to invalidate the election or return;
(aa)
subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;
(b)
contain a prayer asking for the relief the petitioner claims to be entitled to;
(c)
be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under s15 of the Constitution or s44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment;
...

358 No proceedings unless requirements complied with

(1)
Subject to subs(2), no proceedings shall be had on the petition unless the requirements of s355, s356 and s357 are complied with.
...

360 Powers of Court

(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 duty elected;
(vi)
To declare any candidate duly elected who was not returned as elected;
(vii)
To declare any election absolutely void;
(viii)
To dismiss or uphold the petition in whole or in part;
(ix)
To award costs;
...

(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.
(4)
The power of the Court of Disputed Returns under para(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.

...
363A Court must make its decision quickly
The Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances.
364 Real justice to be observed
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.
...
368 Decisions to be final
All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.
...
370 Representation of parties before Court
A party to the petition may appear in person or be represented by counsel or solicitor.
371 Costs
The Court may award costs against an unsuccessful party to the petition.
...
374 Effect of decision
Effect shall be given to any decision of the Court 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."

Division 2 of PtXXII of the Electoral Act

[190] Division 2 of PtXXII of the Electoral Act relevantly declares:

" 376 Reference of question as to qualification or vacancy
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.
...
379 Powers of Court
On the hearing of any reference under this Part the Court of Disputed Returns shall sit as an open Court and shall have the powers conferred by s360 so far as they are applicable, and in addition thereto shall have power:

(a)
to declare that any person was not qualified to be a Senator or a Member of the House of Representatives;
(b)
to declare that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives; and
(c)
to declare that there is a vacancy in the Senate or in the House of Representatives.

380 Order to be sent to House affected
After the hearing and determination of any reference under this Part the Chief Executive and Principal Registrar of the High Court shall forthwith forward to the Clerk of the House by which the question has been referred a copy of the order or declaration of the Court of Disputed Returns.
381 Application of certain sections
The provisions of s364, s368, s370, s371, s373, s374 and s375 shall apply so far as applicable to proceedings on a reference to the Court of Disputed Returns under this Part."

[191] On its face, PtXXII appears to treat questions concerning disputed returns and the qualifications of Senators and members of the House of Representatives as separate issues. In theory, there is no reason why issues concerning the qualification of the person elected could not be raised on a petition challenging the return of that person as duly elected. Certainly, the House of Commons decided such issues in cases of disputed returns [234] . Nevertheless, disputed returns are more concerned with the effect of conduct on voting than the qualifications of candidates. Thus, disputed returns have tended to deal with conduct affecting the procedures of the election such as bribery, treating, undue influence, impersonation of voters and illegal practices. Issues of qualification, on the other hand, although they could be, and were, raised on petitions to the House of Commons to set aside an election, can arise after the election and during the life of the Parliament as well as at election time.

[192] S47 of the Constitution recognises the distinction between disputed returns and the qualifications of candidates by referring separately to "qualification", "vacancy" and "disputed election". Indeed, during the constitutional debates at the Adelaide Convention, Mr Wise said [235] :

"[T]here are two questions involved here, which ought to be kept distinct. There is the qualification of a member or the question as to vacancies on the one side, and the question of a disputed return, which is a matter of altogether a different character. I apprehend that only questions of disputed returns should be dealt with by the Supreme Court".

[193] Later, Mr Edmund Barton moved to insert a new clause to follow cl48 of the Commonwealth of Australia Bill [236] . The proposed new clause provided that "[u]ntil the Parliament otherwise provides all questions of disputed elections arising in the Senate or House of Representatives shall be determined by a Court exercising federal jurisdiction." [237] Eventually, however, s47 empowered the Parliament to legislate for some other body or court to determine questions concerning qualifications and vacancies as well as disputed returns.

[194] The question which then arises is whether, in enacting Div 1 and Div 2, Parliament intended Div 2 to be the only source of power for the Court of Disputed Returns to decide issues concerning the qualifications of members.

The history of the Electoral Act

[195] The history of the Electoral Act is not conclusive. But in my opinion it does point against Div 1 giving the Court jurisdiction to hear a petition alleging an election was void because the person elected was not constitutionally qualified.

[196] PtXVI of the Commonwealth Electoral Act 1902 (Cth) set up a Court of Disputed Returns [238] with power to declare that any person returned was not duly elected [239] or that any person duly elected who was not returned was in fact elected [240] . That Act made no reference at all to questions concerning qualifications or vacancies. The Commonwealth Electoral Act 1905 (Cth) also made no reference to qualifications or vacancies. But it did amend the 1902 Act by adding s198A which empowered the Court to set aside an election where "a candidate has committed or has attempted to commit bribery or undue influence". That tends to confirm that the 1902 Act gave the Court jurisdiction with respect to matters affecting voting rather than the constitutional qualifications of candidates.

[197] Questions concerning qualifications and vacancies were first specifically introduced into federal law by the Disputed Elections and Qualifications Act 1907 (Cth). PtXVI of the 1902 Act was amended inter alia by the adoption of a Div 1 entitled "Disputed Elections and Returns" and a Div 2 entitled "Qualifications and Vacancies". Like Div 2 of PtXXII of the Electoral Act, Div 2 of PtXVI of the 1902 Act provided that any question respecting the qualification of a Senator or member might be referred to the Court of Disputed Returns by a resolution of the relevant House.

[198] Senator Best moved the Second Reading of the 1907 Bill when it was in the Senate. After referring to the disqualifications contained in s44 of the Constitution, he said [241] :

"The spirit of this section is that a candidate for either House must be discharged of these qualifications at the time his election takes place, and in the case of any question arising with respect to any of these qualifications or disqualifications , we provide that the Senate or the House of Representatives shall have power, by resolution, to refer the matter to the High Court. Honorable senators may ask why such cases should not automatically be referred, and why we propose to reserve a discretion to the Houses of the Parliament to refer them. The reason is that there are many cases where, for instance, a man is an undischarged bankrupt, or has been guilty of a crime, or holds an office of profit - obvious cases involving no possible question of law - and it would be absurd to send such cases to the High Court for decision, as they would depend on facts easily ascertained." (emphasis added)

[199] This passage strongly suggests that the intention of the Parliament was that questions of constitutional qualification for the Parliament - including those existing at election time - were to be dealt with, and could only be dealt with, by the Court of Disputed Returns after a reference from the House concerned.

[200] This conclusion is further supported by the history of the litigation in this Court concerning Senator Vardon. In Blundell v Vardon [242] , Barton J, sitting as the Court of Disputed Returns, declared the election of Senator Vardon as a Senator for South Australia absolutely void. Purporting to act under the then s15 of the Constitution, the Parliament of South Australia nominated another person to fill the "vacancy". Mr Vardon then applied for a writ of mandamus directing the Governor of the State of South Australia to hold a new election for a Senator for that State. This Court held that mandamus would not lie to the Governor of a State to compel him to do an act in his capacity as Governor [243] . Mr Vardon then petitioned the Senate to declare that the person nominated had not been duly chosen or elected as a Senator. His petition was referred to this Court under the Disputed Elections and Qualifications Act 1907. The Court held in Vardon v O'Loghlin [244] that the appointment of the person nominated by the Parliament to fill the "vacancy" was null and void because the vacancy existing after the declaration of the Court in Blundell v Vardon [245] was not one which fell within the then s15 of the Constitution.

[201] The 1907 Act had added a new paragraph to s192 of the 1902 Act which provided:

"The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or the appointment of a person to hold the place of a Senator by the Governor of a State under section fifteen of the Constitution shall be deemed to be an election within the meaning of this section."

That section is replicated in s353(2) of the Electoral Act. S353(3) and s353(4) deal with the replacement of Senators for the Australian Capital Territory and the Northern Territory.

[202] Thus in the case of appointments arising under s15 of the Constitution - which, of course, involve the issue of qualification to be a member of the Senate - the Parliament expressly decided in 1907 that an appointment under s15 is to be deemed to be an election and therefore the subject of a petition under Div 1 of PtXXII.

[203] Given the history of the Vardon litigation, the terms of s192 of the 1902 Act and its replication in s353(2) of the Electoral Act, and the terms of Div 2, it is hard to accept that sub silentio the Parliament intended Div 1 to deal with the issue of constitutional qualifications except in the case of appointments under s15 of the Constitution. If s44 qualifications can be made an issue on a Div 1 petition, why did the Parliament not specifically refer to them in Div 1? After all, it refers to them in Div 2 and inferentially to s15 qualifications in Div 1. To that formidable question, the petitioners and the Commonwealth intervening proferred no answer or, at all events, no persuasive answer.

[204] The history of the legislation, therefore, suggests that until 1907 the Parliament kept to itself the privilege of dealing with the qualification of members and that, when, in that year, it provided for the Court of Disputed Returns to have jurisdiction over qualifications, it was to be at the discretion and on the motion of the House concerned, except for appointments under s15 of the Constitution.

[205] The constitutional distinction between disputed returns and qualifications and vacancies was, as we have seen, continued in the Electoral Act. When examined, the terms of the Electoral Act confirm what the legislative history suggests - viz that the Court of Disputed Returns does not have jurisdiction under Div 1 to hear an election petition which raises the bare question whether a person elected to the federal Parliament was constitutionally qualified to be chosen by the electors.

The grounds of a petition

[206] Div 1 of PtXXII of the Electoral Act does not specify the grounds upon which an election can be set aside. S355(a) merely requires the petition to "set out the facts relied on to invalidate the election or return" without identifying what facts are sufficient to constitute invalidity. However, s362 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.
(2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.
(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."

[207] S352 defines the terms "bribery", "corruption", "illegal practice" and "undue influence" as follows:

"(1) In this Part:
bribery or corruption means a contravention of s326.
illegal practice means a contravention of this Act or the regulations.
undue influence means a contravention of s327 of this Act or s28 of the Crimes Act 1914.
(2) For the purposes of this Part, a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the contravention of a provision of this Act, the Crimes Act 1914 or the regulations under this Act shall be deemed to have contravened that provision."

[208] In general terms, s326 makes it an offence for a person to ask for or offer or obtain or receive any property or benefit on an understanding that it will influence or affect the voting or support or candidature of a person. S327 makes it an offence to hinder or interfere with the free exercise or performance of a person's political right or duty that is relevant to an election under the Electoral Act or to discriminate against a person in respect of various matters for donating to a political party or candidate.

[209] Given the terms of s362, it seems distinctly unlikely that a petition could rely on any ground other than breach of the Electoral Act or regulations or bribery, corruption or undue influence as defined by the Electoral Act. That was the view of Gaudron J in Hudson v Lee [246] where her Honour said [247] :

"Although there is no express statement in the Act to that effect, s362, in my view, provides exhaustively as to the general grounds on which an election may be invalidated or declared void. There are three matters which provide the basis for my view in that regard. First, the Act makes detailed and comprehensive provision as to the conduct of elections. Second, it allows for elections and returns to be disputed on the ground of 'illegal practice' which is defined to mean 'a contravention of [the] Act or the regulations' (which includes bribery or corruption as defined in the Act, and undue influence, to the extent that s327 of the Act rather than s28 of the Crimes Act is involved). The detail of the Act's provisions and the width of the definition of 'illegal practice', standing alone, are powerful indications of the exhaustive nature of s362. In that context, the third matter is, in my view, conclusive, that matter being that s362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding with respect to bribery or corruption, undue influence and illegal practice. It would be incongruous if the Court's powers were entirely at large with respect to matters extraneous to the Act."

[210] In Webster v Deahm [248] , which was decided four weeks after Hudson v Lee [249] , however, her Honour left open the question whether in some situations an election could be set aside on a ground that was not covered by the Act. After saying that the only matter that could invalidate an election or return was one raising a matter by which "the election was likely to be affected", her Honour said [250] :

"In general terms, and leaving aside the situation in which a person was prevented from voting or in which a candidate was not eligible to stand (neither of which is claimed in this case), that can only be satisfied by an assertion that goes to or bears upon the casting or counting of votes."

Constitutional disqualification as a ground for setting aside an election

[211] In Sykes v Cleary [251] , Dawson J had taken a different view of the Electoral Act. His Honour held that the Court of Disputed Returns had jurisdiction to hear a petition alleging that the election of Mr Cleary was void on the ground that he was disqualified from standing as a candidate by reason of s44 of the Constitution. His Honour said [252] :

"The jurisdiction conferred on this Court under Div 1, PtXXII of the Commonwealth Electoral Act is the equivalent of that conferred by the Parliamentary Elections Act and the jurisdiction retained by the House of Commons to consider questions concerning the qualifications of its own members corresponds with that which might be exercised by this Court upon a referral under Div 2, PtXXII of the Commonwealth Act."

[212] United Kingdom cases on electoral petitions give apparent support to the view that the constitutional disqualification of an elected member is a ground for setting aside the election of a member to the Senate or the House of Representatives. Since 1604, the House of Commons has claimed and exercised the privilege of determining whether a person was qualified to be elected to the House. The election of an ineligible person was void. Ordinarily, the House would order a new election unless the ineligibility of the person elected was known to the electorate in which case the person getting the next highest number of votes would be elected. Writing in 1820, Male [253] contended:

"If the election is made of a person or persons ineligible, such election is void either in toto, or of one only, according as the ineligibility applies to all, or one only. Where that ineligibility is clear, and pointed out to the electors at the poll, it has been held that the votes given to such ineligible candidate, after notice, are thrown away, and a competitor, though chosen by the smaller number of electors, has, in such case, been held duly elected."

[213] By the Parliamentary Elections Act 1868 (UK), however, the jurisdiction to decide disputed elections was taken from the House of Commons and given to a tribunal consisting of a judge of the "Superior Courts of Common Law at Westminster or Dublin" [254] . That legislation, like the Electoral Act, did not specify the grounds upon which a petition could be brought. Given the parliamentary precedents, it is unsurprising that, on a number of occasions, the judges of the English and Irish courts determined petitions under the Parliamentary Elections Act 1868 which were brought upon the ground that the elected candidate was not qualified to be elected. Thus, in County of Tipperary [255] the Irish Court of Common Pleas, on a case stated by Keogh J, upheld a petition which claimed that the elected member was disqualified as a candidate because he was an alien and a convicted felon who had not undergone his sentence [256] . In Borough of Cheltenham [257] , Mr Baron Pollock and Hawkins J heard but rejected a petition claiming that the elected member was an alien and disqualified from being elected [258] . Similarly, in The Western Division of the Borough of Belfast [259] , Mr Baron Dowse and O'Brien J heard but rejected a petition that the elected member was disqualified because he had already been elected and returned as a member for another Division. More recently, English and Irish tribunals, acting pursuant to the Representation of the People Act 1918 (UK), have upheld petitions claiming that the elected member was disqualified from standing [260] . The United Kingdom cases, therefore, appear to support the view that, because the Electoral Act does not specify the grounds of a petition, the constitutional qualification for election to the Parliament can be a ground for setting aside the election of a member. However, when the statutory context of the United Kingdom cases is examined, it is clear that these cases have no application to the Electoral Act.

The United Kingdom election cases are not authoritative in Australia

[214] S50 of the Parliamentary Elections Act 1868 declared that "after the next Dissolution of Parliament no Election or Return to Parliament shall be questioned except in accordance with the Provisions of this Act". However, as Keogh J held at first instance in County of Tipperary [261] , "the House of Commons has [not] parted with its inherent right to declare who are eligible and who are ineligible to sit in that House, to expel those from amongst them whom they do not think fit to be there, and to issue new writs to fill the vacancies so created." Nevertheless, s50 took away the jurisdiction of the House of Commons to determine disputed returns, a jurisdiction which it had exercised since 1604 [262] . In those circumstances, it is unsurprising that the tribunals set up under the United Kingdom legislation should entertain petitions seeking to set aside a person's election on the ground that he or she was disqualified from standing for election. The Parliamentary Elections Act 1868 substituted the tribunals for the Select Committees of the House of Commons which had exercised the House's jurisdiction since the enactment of the Grenville Act (UK) [263] in 1770. Those Committees had determined questions concerning the status or qualifications of members of the House of Commons. Dawson J was therefore right in Sykes v Cleary [264] when he said that "the jurisdiction retained by the House of Commons to consider questions concerning the qualifications of its own members corresponds with that which might be exercised by this Court upon a referral under Div 2, PtXXII of the Commonwealth Act." But it does not follow that the position under the Electoral Act can be equated with the position in the United Kingdom either before or after the enactment of the Parliamentary Elections Act 1868. The statutory context in Australia is different from that in the United Kingdom.

[215] The Parliamentary Elections Act 1868 did not specify the grounds upon which a petition could be brought although corrupt practices could found a petition. That term was defined to mean "Bribery, Treating, and undue Influence, or any of such Offences, as defined by Act of Parliament, or recognized by the Common Law of Parliament" [265] . Nor does the Electoral Act specify the grounds of a petition, although it recognises that a petition can be brought, and an election avoided, for breach of the Electoral Act or regulations or for bribery, corruption or undue influence as defined by the Electoral Act. Unlike the Electoral Act, the Parliamentary Elections Act 1868 did not provide for the House of Commons to refer questions concerning the qualifications of a member to the tribunal.

[216] In so far as the person returned as a member has breached the qualifications for nomination specified in s163 of the Electoral Act, that breach can ground a petition alleging an "illegal practice". However, compliance with the requirements of s44 of the Constitution is not one of the qualifications specified in s163. Instead, s170 states that a nomination is not valid unless in the nomination paper the person nominated declares inter alia that he or she "is qualified under the Constitution and the laws of the Commonwealth to be elected".

[217] Furthermore, s172 enacts that the returning officer can only reject a nomination if the provisions of s166, s167, s170 or s171 have not been substantially complied with in relation to the nomination. A nomination cannot be rejected on the ground that the person nominated is incapable of being chosen as a Senator or member of the House of Representatives by reason of s44 of the Constitution. If the nomination paper "is false or misleading in a material particular" the person commits an offence punishable by imprisonment for up to six months [266] . In a prosecution, however, it is a defence if the person proves that he or she did not know and could not reasonably be expected to have known that the statement was false or misleading [267] . Because the petitioners do not rely on an "illegal practice" to support their petitions, it is unnecessary to determine whether a nomination which complies with the Act, even though it contains a statement which renders the nominee liable to a penalty, constitutes "a contravention of this Act" and therefore an "illegal practice" within the meaning of s352(1) of the Electoral Act. Nor is it necessary to determine whether there is a contravention of the Act when the nomination contains a false or misleading statement but the nominee has a defence to a prosecution by reason of s339(4) of the Electoral Act [268] .

[218] If the person elected has not complied with the nomination provisions of the Electoral Act, he or she has contravened the Act. That being so, the Court of Disputed Returns would seem to have the power to declare that that person was not duly elected "on the ground that illegal practices were committed in connexion with the election." [269] But that is a different matter from alleging that the election should be set aside on the ground that the person returned as elected, although complying with the nomination provision, has falsely declared that he or she "is qualified under the Constitution and the laws of the Commonwealth" [270] . It is also a different matter from alleging that the person was "incapable of being chosen or of sitting as a senator or a member of the House of Representatives" by reason of s44 of the Constitution. As long as the nominee for election has declared that he or she "is qualified under the Constitution and the laws of the Commonwealth", the Australian Electoral Officer or Divisional Returning Officer cannot reject the nomination because of a belief or knowledge that the nominee is not so qualified [271] . So far as Div 1 of PtXXII is concerned, questions of qualification are subsumed under the label of "illegal practice"; Div 1 does not make constitutional qualifications a condition of nomination. Furthermore, qualifications are not of themselves a ground for a petition. The significance of the silence of that Division in respect of the issue of qualification stands in sharp contrast to the terms of Div 2 of PtXXII of the Electoral Act.

[219] Division 1 is headed "Disputed Elections and Returns". In contrast, Div 2 is headed "Qualifications and Vacancies". It empowers the Senate and the House of Representatives to refer to the Court of Disputed Returns "[a]ny question respecting the qualifications of a Senator or of a Member of the House of Representatives" [272] . In determining the reference, that Court is given [273] "the powers conferred by s360 so far as they are applicable, and in addition thereto shall have power ... to declare that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives" [274] . Thus, Div 2, but not Div 1, gives the Court express power to declare that a Senator or member was not capable of being chosen as a Senator or member. The fact that in Div 2 the Court is given an express power to make a declaration concerning capacity supports the view that the general powers conferred by s360 in Div 1 were not intended to deal with questions of capacity. That is to say, the powers conferred by s360 to declare that any person who was returned as elected was not duly elected, to declare any election absolutely void and to uphold a petition were not intended to reach cases where the member was not qualified by reason of matters external to the Electoral Act.

The general provisions of the Electoral Act - s353(1), s360(2) and s364

[220] The question then arises as to whether the very general provisions of s353(1), s360(2) and s364 of the Electoral Act, or the common law, allow a petitioner under Div 1 to raise the issue of constitutional disqualification. S353(1) enacts that the:

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

S360(2) declares that the Court may exercise its powers under s360 "on such grounds as the Court in its discretion thinks just and sufficient." The powers conferred by s360 include the power to declare that a person returned as elected was not duly elected or that the election was absolutely void. S364 declares that 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."

S353(1)

[221] Divorced from its context, s353(1) is expressed in terms which are wide enough to cover a challenge to an election on the ground that the return of a member was invalid by reason of his or her lack of capacity to be chosen as a member because of the terms of s44 of the Constitution. Standing alone, and without regard to history and context, s353(1) might be regarded as an exercise of the jurisdiction conferred by s76(i) of the Constitution which empowers the Parliament to make laws conferring original jurisdiction on this Court in any matter arising under the Constitution or involving its interpretation. But when s353(1) is read in the context of Divs 1 and 2 of PtXXII, and against the background history of the legislation, I do not think that Parliament can have intended the general provisions of that sub-section to be the vehicle for dealing with questions of constitutional qualification. It is true, as Barwick CJ pointed out in In re Webster [275] - a case referred under Div 2 - that disqualification by reason of s44 of the Constitution "is automatic and does not depend upon a decision of the House or of the Court of Disputed Returns, though means are there provided of resolving the facts and their legal consequences." But given the structure of Divs 1 and 2 and the terms of their various provisions, I do not think that in enacting s353(1) the Parliament could have been intending to exercise the power conferred by s76(i) of the Constitution. Rather s353(1), like the rest of Div 1, apart from the special case of s15 appointments, should be seen as an exercise of the power conferred by s76(ii) of the Constitution. That is to say, s353(1) purports to give this Court jurisdiction with respect to a matter arising under a law made by Parliament. In that respect, it differs from Div 2 which purports to vest matters in the Court pursuant to s76(i) of the Constitution.

S360(2) and s364

[222] The meaning of s360(2) and its counterparts in other electoral legislation has given rise to a division of opinion as to whether it confers substantive or merely procedural powers on a Court of Disputed Returns. In Chanter v Blackwood [276] , Griffith CJ expressed the view during the argument of counsel that a corresponding section referred only to procedure. His view was followed by Mitchell J, sitting as the Court of Disputed Returns, in Crafter v Webster [277] and by Blair CJ and seemingly by R J Douglas J as members of the Full Court of the Supreme Court of Queensland in The Ithaca Election Petition, Webb v Hanlon [278] . On the other hand, in Dunbier v Mallam [279] , Hardie J appears to have taken the view that such a provision confers substantive powers on the tribunal. In Webb v Hanlon [280] , Evatt J said that such a provision "gives emphasis to the administrative as distinct from the judicial character of the special tribunal." Earlier, in Holmes v Angwin [281] , Barton J had expressed a similar view, saying "that the character of the tribunal and the method of procedure are such as did not characterise the ordinary tribunals of justice." These statements suggest that Evatt J and Barton J saw provisions such as s360(2) as conferring substantive administrative powers.

[223] If it were not for the statutory context, I would hold that s360(2) and s364 purport to confer independent and additional powers on the Court of Disputed Returns to reach such decision as fair-minded persons, unfettered by legal rules, would reach in all the circumstances of the case. Not only may the Court exercise its powers on such grounds as it thinks just and sufficient, but it is to be guided by the substantial merits and good conscience of the case without regard to legal forms and technicalities and whether or not the evidence is in accord with the law of evidence. I would find it difficult to distinguish the powers conferred by these sections from those considered in Moses v Parker; Ex parte Moses [282] , a non-election case, where the Privy Council held that the similar powers there conferred left the Supreme Court of Tasmania "free and unfettered in each case."

[224] However, when Div 1 is considered as a whole, I think that the purpose of the Electoral Act is to allow an election to be set aside on the grounds of bribery, corrupt practices, undue influence and illegal practices and not otherwise. That being so, s360(2) and s364 are to be seen as ancillary to those specific powers. They do not authorise the bringing of a petition on the ground that the person returned as elected was constitutionally disqualified from standing for Parliament. But they are widely expressed. Subject to the directions in s362, the Court has an unfettered discretion to act according to what it regards as just and sufficient without regard to legal forms or technicalities or the laws of evidence. The fact that the decision of the Court is final and conclusive and that there is no right of appeal strongly suggests that the orders in each case are to be made on the basis of what the Court regards as the justice of that case and not by reference to a body of rules antecedently known to an appellate court.

[225] It follows that nothing in the Electoral Act gives the Court of Disputed Returns any jurisdiction to hear the present petitions. The common law of elections

[226] There is authority in this and other courts supporting the proposition that at common law an election for a legislature could be set aside if there was no real electing by the constituency or the election was not really conducted in accordance with the laws governing it. Thus, in Woodward v Sarsons [283] , where the Court of Common Pleas had to consider the powers of the election tribunal brought into existence by the Parliamentary Elections Act 1868, Lord Chief Justice Coleridge, speaking on behalf of the Court, said: "[A]n election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, ie that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred." (emphasis in original)

[227] However, nothing in this passage gives any support for the view that the Court of Disputed Returns has power to set aside the election of Mrs Hill on the ground of a constitutional disqualification. Moreover, as Philp J pointed out in The Flinders Election Petition, Forde v Lonergan [284] , misunderstanding concerning Woodward v Sarsons [285] has arisen because the report of the case does not indicate that the Court of Common Pleas was required by statute to apply the principles "being observed in the case of election petitions under the provisions of the Parliamentary Elections Act, 1868" [286] . It was not applying common law principles.

[228] Great care must be taken in using parliamentary election cases decided in England both before and after the enactment of the Parliamentary Elections Act 1868. S26 of that Act provided that "[u]ntil Rules of Court have been made in pursuance of this Act, and so far as such Rules do not extend, the Principles, Practice, and Rules on which Committees of the House of Commons have heretofore acted in dealing with Election Petitions shall be observed so far as may be by the Court and Judge". Issues concerning agency are a good illustration of the differences between the principles of the common law and the principles on which the committees of the House of Commons acted. As Grove J pointed out in Borough of Wakefield [287] , under the common law of agency a person is not responsible for acts which he has not authorised or for acts done beyond the scope of the agent's authority. Under the principles of parliamentary election law developed by the House of Commons, however, the candidate is responsible for all acts done in support of his candidacy of which the candidate or his agents have "reasonable knowledge". Furthermore the law of agency for election purposes was deliberately left flexible so as to apply to actions that the committees and later the tribunal thought should be sheeted home to the candidate.

[229] Pursuant to the Parliamentary Elections Act 1868, a petition could also be brought on the ground of a "Corrupt Practice" or "Corrupt Practices" in the election and those terms were defined, inter alia, to mean any offence "recognized by the Common Law of Parliament" [288] , an expression that Griffith CJ said in Chanter v Blackwood [289] he did "not quite understand". In the same case, his Honour said that "there are very weighty authorities to the effect that Parliamentary law is not introduced into the colonies, and therefore not into the Commonwealth." [290] Subsequently, the Full Court of Queensland rejected the proposition that the parliamentary law of elections is applicable in Australia [291] . However, Griffith CJ went on to say [292] that he "must not be supposed to suggest that there is not a Common Law applicable to elections." He said [293] that "the law is correctly laid down in [the above] passage in Woodward v Sarsons [294] ". In Bridge v Bowen [295] , Griffith CJ, dissenting, once again regarded Woodward v Sarsons [296] as laying down the common law as to elections. So too did Barton J who also dissented [297] . Isaacs J, who was in the majority, appears to have been of the same view [298] . Yet it seems likely that, in Woodward, Lord Chief Justice Coleridge was applying the very principles of law which in Chanter v Blackwood [299] Griffith CJ said he did "not quite understand" and which "weighty authorities" said were not part of the law of Australia.

[230] It is highly problematic whether there is a common law of elections in respect of Parliament other than that developed by the House of Commons and its Select Committees. In Ashby v White [300] , where the plaintiff claimed damages for being deprived of the right to vote at a parliamentary election, Powys J, sitting in the King's Bench, said: "Another reason against the action is, that the determination of this matter is particularly reserved to the Parliament, as a matter properly conusable by them, and to them it belongs to determine the fundamental rights of their House, and of the constituent parts of it, the members; and the Courts of Westminster shall not tell them who shall sit there. Besides, we are not acquainted with the learning of elections, and there is a particular cunning in it not known to us, nor do we go by the same rules, and they often determine contrary to our opinion without doors."

[231] The majority decision of the King's Bench was reversed by the House of Lords [301] which upheld the dissenting judgment of Lord Holt CJ who held that an action would lie because the plaintiff had a common law right to vote. However, the remarks of Powys J suggest that, even though in some cases the right to vote arises from the common law, there is no common law relating to parliamentary elections. Significantly, Lord Holt CJ said [302] : "This is a matter of property determinable before us. Was ever such a petition heard of in Parliament, as that a man was hindred [sic] of giving his vote, and praying them to give him remedy? The Parliament undoubtedly would say, take your remedy at law. It is not like the case of determining the right of election between the candidates."

[232] Prior to the passing of the Parliamentary Elections Act 1868, elections to Parliament were governed by a large number of statutes concerning the franchise and the qualifications and disqualifications of members, by statutes dealing with bribery and corrupt practices, by conventions for the conduct of elections which do not seem to have been justiciable in the ordinary courts of justice and by the principles and practices developed and applied by the House of Commons between 1604 and 1868. Sir William Holdsworth has pointed out [303] that even at the end of the 17th century: "[T]here seems to have been very little law as to how the sheriff should conduct an election. But in the latter part of the seventeenth century conventional rules were growing up. Sheriffs and candidates would agree on rules to be observed at a forthcoming election; candidates were appointing agents; and as early as 1701 'inspectors were established at county polls in the interest of candidates.'" (footnotes omitted)

[233] The now important practice of the returning officer granting a scrutiny [304] , for example, did not exist in the time of Lord Coke. Indeed, for the sheriff to grant a scrutiny may have exceeded his implied authority in respect of the election although there was no statute or resolution of the House on the subject and over the years the House heard a number of petitions complaining of a refusal to grant a scrutiny [305] . The House, and later the Select Committees, appear to have left the grant or refusal of a scrutiny to the discretion of the returning officer. There appears to be no case at common law where the courts have ruled that there was any common law right or power to have the votes scrutinised before the return of the writ declaring the member or members elected. At all events, there was none before the Parliamentary Elections Act 1868. Moreover, in one action in the Common Pleas, Charles James Fox recovered substantial damages from the high bailiff who had not returned Fox on the day appointed because the scrutiny had not proceeded as expeditiously as it could have [306] .

[234] It is true that many actions in relation to elections could be the subject of proceedings in the civil and criminal courts. Thus, in R v Pitt [307] , Lord Mansfield CJ is reported as saying that bribery at elections for members of Parliament "must undoubtedly ... have always been a crime at common law; and, consequently, punishable by indictment or information." The lesser offence of treating would also seem to have been an offence at common law [308] . In Borough of Bradford [309] , a case decided under the Parliamentary Elections Act 1868, Mr Baron Martin went so far as to say: "[I]f it could be proved that there was treating in all directions on purpose to influence voters, that houses were thrown open where people could get drink without paying for it, - by the common law such election would be void". Unless his Lordship was referring to the common law of Parliament, however, this dictum should be regarded as erroneous.

[235] However, the fact that conduct occurring in the course of election may give rise to civil or criminal liability throws no light on whether there is a common law relating to elections to Parliament. In any event, whether or not there is a common law of parliamentary elections in addition to the so-called common law of Parliament, the terms of the Electoral Act by necessary implication exclude its application. Under the Electoral Act, as under the election governed by the Sydney Corporation Act 1902 (NSW) considered in Bridge v Bowen [310] , the "election [is] entirely a statutory proceeding, with statutory directions and statutory consequences" [311] .

[236] Furthermore, as Philp J also pointed out in The Flinders Election Petition, Forde v Lonergan [312] , the effect of legislation such as s360(2) and s364 of the Electoral Act is that electoral cases in this country have always been decided against a very different statutory background from that applicable in the United Kingdom. In this country, the requirement that an election tribunal be guided by real justice and good conscience was introduced into our law by the enactment of s42 of the Electoral Districts Act 1843 (NSW). A provision to similar effect seems to have been inserted in all subsequent Australian legislation dealing with parliamentary elections. In The Flinders Election Petition, Forde v Lonergan [313] , Philp J applied the principles expounded by Lord Chief Justice Coleridge in Woodward v Sarsons [314] because his Honour thought that they comported with "what is real justice in the present circumstances" and not because the common law of elections was applicable. In my opinion, this is the correct approach. Election cases in the United Kingdom may give some assistance in determining whether a particular practice in an Australian election is or is not contrary to the real justice of the case. But they contain no principles that are authoritative under the Electoral Act. Nor do they support the view that there is a common law of parliamentary elections in addition to that developed by the House of Commons in the exercise of its privileges.

[237] Furthermore, even if the principles laid down in Woodward v Sarsons [315] represent the common law relating to elections and are applicable in cases heard by the Court of Disputed Returns, they do not assist the petitioners in the present case. Woodward v Sarsons does no more than declare that any matter which goes to or bears upon the casting or counting of votes [316] in consequence of which a defeated candidate may have been prevented from being elected is a sufficient ground at common law for setting aside the election of a person. Questions of constitutional disqualification, however, are matters antecedent to the casting or counting of votes.

[238] Given the structure of the Electoral Act, the specific reference to bribery, corrupt practices, undue influence and illegal practices, the omission of any reference in Div 1 to the constitutional qualification of a member except the special case of a s15 appointment and the enactment of Div 2 which deals exclusively with the qualification of members, the best interpretation of the Electoral Act is that a petition on the bare ground of an allegation of a breach of s44 of the Constitution is not within the jurisdiction of the Court of Disputed Returns.

[239] Moreover, there are practical reasons why the Parliament may have wished to keep the issue of constitutional disqualification out of the Court of Disputed Returns except by specific reference. If that Court could determine a question of constitutional qualification, although no breach of the Electoral Act has occurred, conflicting decisions on a member's constitutional qualifications might be given by the Court of Disputed Returns and one of the Houses of Parliament, a situation that Div 2 is designed to prevent. As that Division makes clear, the Houses of Parliament retain the right to rule on the qualification of a member. If the Court of Disputed Returns can determine the question of constitutional qualification on a petition, it is possible that, upon a member taking his or her seat in Parliament, the relevant House could decide that the member was or was not qualified before the Court determined the petition and held to the contrary [317] . Further, although a decision of the Court that a person has not "been duly elected" is binding on that person and perhaps the House [318] , the dismissal of a petition or the making of a declaration by the Court that a person returned as a member was duly elected appears to bind no one, except perhaps the petitioner. At all events, there is nothing in the Electoral Act that suggests that it binds. Because that is so, a House would be entitled to disregard a decision of the Court dismissing a petition which had alleged that the person returned as elected was disqualified from being chosen by reason of s44 of the Constitution. It is true that s368 declares that "[a]ll decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way." But this is no more than a privative clause, designed to prevent appeals against or collateral legal challenges to decisions of the Court of Disputed Returns.

[240] Furthermore, I do not think that the existence of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ("the Common Informers Act") [319] gives any assistance in determining the construction of Div 1 of PtXXII of the Electoral Act. S3 of the Common Informers Act provides for the recovery of penalties against a person who sits in Parliament when disqualified from doing so. That Act was passed long after the enactment of the Electoral Act and cannot be taken to have amended the latter Act in any way.

[241] It is true that, because of the existence of the Common Informers Act, a person elected to Parliament but constitutionally disqualified might be better off if the issue of disqualification could be dealt with by petition. There is a real question, however, whether a person can be sued under the Common Informers Act until either the relevant House of Parliament has declared that that person is disqualified or this Court has done so on a reference under Div 2 of PtXXII of the Electoral Act.

[242] On one view, the effect of s3 of the Common Informers Act is that the Parliament has otherwise provided within the meaning of s47 of the Constitution so that, notwithstanding the restrictive terms of Div 2 of PtXXII of the Electoral Act, the High Court can determine at any time the eligibility of a member of Parliament.

[243] The other view of s3 is that it does not otherwise provide for the determination of a "question respecting the qualification of a senator or of a member of the House of Representatives" [320] . On that basis, the determination is made by the relevant House of Parliament or by this Court on a Div 2 reference, and the function of s3 is to authorise a suit for the recovery of a penalty once a declaration of incapacity has been made. Favouring this construction is the fact that it avoids potential and unseemly conflicts between the Court and a House of Parliament over the qualifications of a member of that House. It might also seem surprising that Parliament, in enacting the Common Informers Act, had intended, so to speak, to allow a person to bypass the restrictively worded provisions of Div 2 of PtXXII of the Electoral Act.

[244] The debates on the Common Informers Act in both Houses of federal Parliament favour the first of these two constructions. The Second Reading Speeches in the Senate and the House of Representatives both assumed that this Court could deal with the issue of constitutional disqualification by a suit under s3 even if the matter was not referred to the Court of Disputed Returns. However, the Second Reading Speeches also assumed that the Bill was otherwise providing for the purpose of s46 [321] of the Constitution, not s47. Furthermore, the Bill seems to have been drafted and debated hastily because of concern that actions for penalties could be brought against Senator Webster, pursuant to s46 of the Constitution. For that reason, the debates may be regarded as less persuasive than usual on the construction of legislation.

[245] However, it is unnecessary to choose between the competing interpretations. Whichever view is the correct one, it throws no light on whether Div 1 of PtXXII of the Electoral Act authorises a petition claiming that an election is void because the person elected was constitutionally disqualified. Furthermore, in almost all disputed House of Representatives elections the person elected will have sat in the House before the Court of Disputed Returns determines the petition. That will also be the case with Senators who are re-elected. If the first construction of the Common Informers Act is correct, these persons will be liable to a suit under that Act whether or not the validity of their elections can be challenged under Div 1 of PtXXII. Similarly, when the disqualification arises after an election, the Senator or member will be liable to be sued notwithstanding that the relevant House has or has not referred the issue to the Court of Disputed Returns. That being so, only Senators elect, such as Mrs Hill, will probably avoid the consequences of the Common Informers Act if Div 1 of PtXXII authorises petitions based on constitutional disqualifications. While that is a matter of importance to at least this group of persons, it cannot affect the construction of Div 1 of PtXXII of the Electoral Act, an Act which was passed more than 50 years before the Common Informers Act.

[246] Nothing in the Electoral Act expressly authorises the bringing of a petition on the ground relied on in the present cases. Moreover, the inferences to be drawn from the general structure of the Act and the special provisions of Div 2 of PtXXII tell strongly against the Court of Disputed Returns having jurisdiction to hear a petition alleging such a ground.

[247] In my opinion, therefore, the Court of Disputed Returns has no jurisdiction to hear a petition alleging that an elected person was incapable of being chosen as a member of the Parliament by reason of the provisions of s44 of the Constitution. Hearing and determining such a petition is an exercise of one of the privileges of the Parliament. Sir William Holdsworth thought that it was one of the four most important of those privileges [322] . In the absence of clear statutory language, we should not construe the Electoral Act as impliedly transferring that privilege to this Court to exercise, particularly having regard to the restrictive and carefully worded provisions of Div 2 of PtXXII. It follows that the decision of Dawson J in Sykes v Cleary [323] was wrong and should be overruled.

[248] The question as to whether Mrs Hill was capable of being chosen as a Senator is one for the Senate to determine unless and until the Senate resolves to refer the question to the Court of Disputed Returns. There is no need for me to determine, therefore, whether PtXXII attempts to confer non-judicial power on this Court or whether, at this stage of Australia's constitutional development, the United Kingdom is a "foreign power" within the meaning of s44 of the Constitution.

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

Question (a): No.
Question (b): Inappropriate to answer.
Question (c): Inappropriate to answer.
Question (d): Does not arise.
Question (e): Does not arise.
Question (f): The Commonwealth should pay the costs of the petititioner and of the first respondent in this Court. The second respondent should bear its own costs. [324]


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