Sue v Hill; Sharples v Hill
199 CLR 462[1999] HCA 30
(Judgment by: Kirby J)
Sue; Sharples v
Hill
Judges:
Gleeson CJ, Gummow, Hayne
Gaudron
McHugh
KirbyCallinan JJ
Judgment date: 23 June 1999
Judgment by:
Kirby J
[250] The Federal Parliament created by the Australian Constitution consists of the Queen, a Senate and a House of Representatives [325] . Each of the Chambers of the Parliament enjoys "powers, privileges, and immunities" (privileges) as do the members and committees of each House [326] . Because such privileges, including decisions on the disputed qualifications of members of the Parliament, derive from long-established tradition and because these remain essential to the effective performance by the Parliament of its constitutional functions, courts, including this Court, must approach any diminution of, or qualification upon such privileges, with considerable circumspection [327] .
[251] Although, under the Australian Constitution, the privileges of the Parliament must exist in a textual context which provides for the other branches of government, including the Judicature [328] , tradition, practicality and law require that a large measure of deference should be accorded to the exercise by the Parliament of its privileges. In ascertaining the Parliament's purpose in a matter connected with its privileges, no court should strain legislative language to claim a jurisdiction which has not been clearly vested in it. Restraint is the watch-word for courts in this context. If the Parliament wishes to confer jurisdiction in accordance with the legislative powers that it enjoys under the Constitution [329] , it may do so. But, subject to the Constitution, it is for the Parliament, and the Parliament alone, to surrender its privileges and to involve the courts in the resolution of controversies that concern those privileges.
Facts, legislation and issues
[252] The background facts are stated by Gaudron J. The legislation necessary to my opinion is set out in the reasons of McHugh J. Two petitioners have purportedly invoked the jurisdiction of the High Court as the Court of Disputed Returns [330] . They have done so by petitions filed in purported compliance with the Commonwealth Electoral Act 1918 (Cth) (the Act) [331] . Each petition challenges the qualifications of Mrs Heather Hill (the first respondent) to be chosen, or to sit, as a Senator. In the 1998 general election, she was returned following the counting of the ballots of electors of the State of Queensland [332] . In the ordinary course of events, Mrs Hill, whose name has been certified by the Governor of Queensland to the Governor-General as having been chosen for that State, would take her seat in the Senate after 1 July 1999. The petitioners contend that she is constitutionally disqualified from doing so [333] .
[253] The proceedings are now before this Court pursuant to cases stated in accordance with the Judiciary Act 1903 (Cth) [334] . Six questions are stated for our opinion. The questions are set out in the reasons of Gaudron J. Only one, the first, is relevant in the approach which I take. It asks: "Does s354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?" Because in my view it does not, it is inappropriate or unnecessary to answer any of the other questions save one as to the costs. In these proceedings, those other questions may not be determined. No jurisdiction having been conferred upon this Court as the Court of Disputed Returns (and no other jurisdiction of the Court having been invoked), the resolution of the qualifications of Mrs Hill to be chosen or to sit as a Senator is a matter reserved by the Constitution to the Senate.
Provisions for disputed elections
[254] In parliamentary law, long before the creation of the Federal Parliament, a distinction was drawn between disputed returns (in the sense of contests about the validity of an election and thus of the returns as to electoral results) on the one hand, and the qualifications and status of a person elected or offering for election, on the other [335] . The history of the distinction is explained by McHugh J. I will not repeat it. It was noticed in passing by Dawson J in Sykes v Cleary (No 1) [336] .
[255] There is no doubt that the framers of the Australian Constitution were aware of the distinction. In the debate at the Adelaide Convention in 1897 there was much discussion of the difference between what were described as "disputed returns" and "qualification of a member" [337] . In response to concerns expressed at the Convention that this distinction would be eroded, Mr Barton explained that the provision in the Constitution Bill of the phrase "until The Parliament otherwise provides" would leave it to "the Parliament of the Commonwealth to determine whether the Houses, after they are called together, shall determine this question, or whether the Judges should do it. It is a matter for the Federal Parliament to deal with. It increases the freedom of action of the Parliament of the Federation, and for that reason it is also desirable to leave it in the hands of the Parliament ... if the Parliament will not undertake the matter itself, it will delegate it to the High Court" [338] . Mr Wise observed that there were "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 ..." [339] . Other participants expressed like views.
[256] It is against this background that the meaning of s47 of the Constitution (which preserves the distinction), already plain from its text, becomes still clearer. The section states relevantly:
"Until the Parliament otherwise provides, any question respecting the qualification of a senator ... 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."
[257] A question respecting the qualification of a Senator being now raised in advance of Mrs Hill's sitting as a Senator, the issue presented by s47 of the Constitution is whether the Parliament has relevantly "otherwise provide[d]". If it has not, subject to any other relevant provision of the Constitution, the determination of the question remains by s47, to be made by the House in which the question arises, namely the Senate, and nowhere else. The question may not be determined by any other person, body or court. An attempt to do so would be a breach of the Constitution and of the privileges constitutionally belonging, in this case, to the Senate.
[258] The distinction which was observed in the pre-1901 history of the Parliament of Westminster, recognised in the Convention debates and reflected in the terms of s47 of the Constitution was, unsurprisingly, carried over to the Commonwealth Electoral Act 1902 (Cth) as first enacted. PtXVI of that Act contained provisions, clearly modelled on pre-existing colonial statutes, which constituted the High Court as the Court of Disputed Returns [340] . The powers of the Court included "[t]o declare that any person who was returned as elected was not duly elected" [341] ; "[t]o declare any candidate duly elected who was not returned as elected" [342] ; and "[t]o declare any election absolutely void" [343] . No separate provision was made in respect of disputes concerning the qualification of candidates, an issue which logically arises at a time anterior to the return which was disputed. The omission was not through oversight.
[259] When the Commonwealth Electoral Act 1905 (Cth) was enacted, it too made no express reference to the qualification of a Senator or member of the House of Representatives as referred to in s47 of the Constitution. Its concern with the illegal and other practices involved in the actual conduct of elections was made still clearer by the amendment of the 1902 Act [344] . This inserted s198A obliging the Court of Disputed Returns, if it found that "a candidate has committed or has attempted to commit bribery or undue influence" to declare void that candidate's election "if he is a successful candidate" but subject to being satisfied that the result of the election was likely to be affected.
[260] That the omission of express reference in the Act to questions "respecting the qualification of a Senator" was not accidental, was made even more clear by amendments adopted in 1907. By the Disputed Elections and Qualifications Act 1907 (Cth), for the first time, the provisions of PtXVI dealing with the Court of Disputed Returns were amended and the distinction already reflected in the Constitution was carried into the federal election statutes. The Part was divided into two divisions. Division 1, titled "Disputed Elections and Returns", was inserted above the provisions from s192 [345] . Then, over a new s206AA was inserted the heading "Division 2 - Qualifications and Vacancies". S206AA (which is now s376 of the Act) provided for the first time, in accordance with s47 of the Constitution, with respect to "[a]ny question respecting the qualification of a Senator". It did so in a particular and highly specific way, namely by providing for a reference by resolution to the Court of Disputed Returns by the House in which the question arose. Only upon such a reference, according to the Act, would "the Court of Disputed Returns ... thereupon have jurisdiction to hear and determine the question" [346] . Machinery provisions were also enacted to provide for the presiding officer of the House in question to transmit a statement of the question "upon which the determination of the Court is desired" [347] ; for the parties to the reference [348] ; the powers of the Court "[o]n the hearing of any reference under this part of this Act" [349] ; for the order to be sent to the House affected [350] ; and for the incorporation into the Division of some, but by no means all, of the provisions previously enacted as part of Div 1 [351] .
[261] On the face of these amendments and additions to the predecessors to the Act, the purpose of the Parliament could not have been plainer. Whereas previously, it had not surrendered to any court, including the Court of Disputed Returns, the privilege preserved by s47 of the Constitution to determine in the House concerned any question which arose "respecting the qualification of" a Senator or Member of the House of Representatives, now it had done so. It is erroneous and misleading to read the sections in Div 2 of PtXXII of the Act (formerly PtXVI of the Acts of 1902-1907) without regard to the text of s47 of the Constitution, the Parliamentary history preceding its adoption and the deliberate way by which, after an interval and due debate, the decision was made to surrender to the Court of Disputed Returns the resolution of questions of qualification, but only upon terms and by procedures which the Parliament itself approved.
[262] Any last lingering doubt that this was a deliberate distinction, appreciated by the Parliament and reflected in the amendments which it adopted, is dispelled by a glance at the Second Reading Speech of the Vice-President of the Executive Council (Senator Best) who introduced the 1907 amendments [352] . Referring to the clause which became s206AA (now s376) the Minister said [353] :
"The last part of the Bill is cl6, dealing with the contingency of questions of law arising with regard to qualifications and vacancies. I have already drawn special attention to s47 of the Constitution, which refers to the powers of the Parliament in regard to qualifications, vacancies, and disputed elections. We have already dealt with disputed elections by the Electoral Act. They are therefore outside this Bill, and beyond the power of Parliament, unless Parliament desires to amend the Electoral Act. ... [The new provision] does not take away from the Senate the power to deal with these questions [qualification of a Senator] itself. There is a reason for that, which I will explain. In the event of a question arising on the subject of qualifications or vacancies, the machinery is provided by this clause for the Senate simply to pass a resolution making the reference, and thereupon the question involved is referred to the Court. ... [W]e do not propose to compel the House or the Senate to refer the matter to the High Court, but leave it to their discretion to do so."
[263] The Minister pointed out that in some cases, as where a person apparently elected was disqualified as an undischarged bankrupt, for conviction of a relevant crime or for holding an office of profit forbidden by s44 of the Constitution, "it would be absurd to send such cases to the High Court for decision, as they would depend on facts easily ascertained" [354] . But the Houses of Parliament were reserving to themselves the decision on whether or not to refer the question to the High Court as the Court of Disputed Returns. In accordance with s47 of the Constitution the Parliament had indeed "otherwise provided"; but it had retained to its respective Houses the threshold determination of whether or not, by resolution, to refer "any question respecting the qualification of a senator ..." to the Court. Without such a reference, the Court would not have jurisdiction under the Act to decide any question respecting qualifications.
[264] Given this constitutional background and legislative history, it would be surprising indeed, within the language and structure of the Act, if such a careful scheme, designed to reserve the decision at the gateway of the jurisdiction of the Court of Disputed Returns on matters of qualification of parliamentarians, could so easily be circumvented by the bringing of a petition of an individual elector under Div 1 of PtXXII of the Act. In my view, this would completely destroy the arrangement adopted by the Parliament. Commonsense dictates that in any election where qualifications of a candidate are contested, an individual elector may readily be found to lodge a petition. What was the point of enacting Div 2, reserving the power to the House of Parliament if, under Div 1, a petition was available to raise the same questions without the slightest need of a prior resolution by the House of Parliament concerned?
[265] If the theory propounded by the petitioners in the present proceedings is correct, it was always open to an individual elector to contest the due election of a Senator or member of the House of Representatives upon the hypothesis that "due election" included the evaluation of the successful candidate's qualification to be chosen and to sit. This theory will not stand with the history of the legislation. More importantly, it is inconsistent with the distinction drawn by the terms of s47 of the Constitution and the proper approach to the ascertainment of whether, until 1907, the Parliament had surrendered to the Court the determination of questions respecting the qualification of Senators that otherwise belonged to it and, subject to the Constitution, to no court.
[266] Still further confirmation that this is the scheme of the Act is found by reference to the powers which the Parliament gave to the Court of Disputed Returns for the first time in 1907 when Div 2 was inserted in the Act. Those powers were to be in addition to the powers enjoyed by the Court of Disputed Returns under s197 of the 1902 Act (now s360 of the Act). The terms in which the powers were conferred are specific and peculiarly apt to the resolution by the Court of Disputed Returns of disputes as to qualification of a person to be chosen or to sit as a Senator or member of the House of Representatives. They are, relevantly [355] :
"(b) to declare that any person was not capable of being chosen or of sitting as a Senator ...;
(c) to declare that there is a vacancy in the Senate ...".
[267] Without knowledge of the history, constitutional text, controversies and ultimate amendment of the Act, the powers conferred in general terms by what was originally s197 (now s360) of the Act, referred to above, might perhaps be taken as extending to contests about qualification of candidates. But with these considerations in mind, such an approach would be wholly artificial. It would require the Court to don blinkers as to the past and to read the powers in s360 of the Act (as it now stands) without paying proper account to the considerations which I have listed. Indeed, even if the constitutional setting and the history of the legislation are totally ignored, it is surely completely unacceptable to ignore the scheme and structure of the Act and the plain division which the Parliament has made, signified by the titles of the divisional headings [356] between "Disputed Elections and Returns" (for which Div 1 provides) and "Qualifications and Vacancies" (for which Div 2 provides).
[268] Because it is common ground that no question respecting the qualification of any person has been referred to the Court of Disputed Returns by resolution of the Senate (assuming that to be constitutionally permissible and available in this case where Mrs Hill is yet to be sworn as a Senator) no jurisdiction of the Court of Disputed Returns respecting the qualification of Mrs Hill to sit as a Senator has properly been invoked. By reason of the considerations which I have mentioned, it is not possible for an individual elector to invoke the jurisdiction of the Court of Disputed Returns by petition addressed to the Court under s353 of the Act within Div 1. No jurisdiction is conferred on that Court by s354 of the Act, also within Div 1, to determine the issues raised in the petition filed in each of the proceedings. The first question reserved for the opinion of this Court must therefore be answered in the negative.
[269] Given that the view which I hold is that, in questions respecting the qualifications of a Senator (or a member of the House of Representatives) the privileges of the Parliament have not been released to any court, such questions remain, subject to any other provisions of the Constitution, to be determined by the Houses of Parliament. The only exception arises where s15 of the Constitution expressly governs the matter or in the limited and qualified circumstances by which, in Div 2 of PtXXII of the Act, the Parliament has purported to provide for a reference to the Court of Disputed Returns. I say "purported" because, despite the exercise by this Court in the past of jurisdiction under Div 2 [357] , a question clearly exists as to whether, compatibly with the Court's elaboration of Ch III of the Constitution and its requirements, this Court or any other federal court, could be vested with jurisdiction of the kind contemplated by Div 2 [358] . No such jurisdiction having been invoked in this case, it is inappropriate to resolve that question.
[270] The possibility that the provisions within Div 2, or some of them, might be invalid, as incompatible with Ch III of the Constitution does not affect in the slightest the foregoing reasoning. The Parliament has certainly attempted to provide, relevantly, with respect to questions regarding the qualification of a Senator. If this attempt be found to have miscarried so far as it purports to confer jurisdiction to hear and determine a question referred by resolution of either House of the Parliament, this does not alter either the juxtaposition drawn between the divisions of PtXXII of the Act or the manifest purpose thereby demonstrated that Div 1 should deal, and deal only, with disputed elections and returns on grounds otherwise than the qualifications of candidates or a vacancy in either House and Div 2 with questions as to qualifications and vacancies.
Remaining objections
[271] There is no holding of a Full Court of this Court which requires a conclusion contrary to the foregoing. It is true that in Sykes (No 1) [359] Dawson J, ruling on a preliminary objection as to the jurisdiction of the Court of Disputed Returns, in a petition brought in accordance with Div 1, concluded that the Court had jurisdiction to decide whether a candidate was disqualified under s44 of the Constitution. It follows from what I have said that, in this regard, Sykes was wrongly decided. It should be overruled.
[272] Dawson J considered that support for his conclusion was to be found in the decision of the Full Court in In re Wood [360] . That case involved a reference to the Court of Disputed Returns by resolution of the Senate pursuant to s377 of the Act which appears in Div 2. Whatever other problems might have arisen for the jurisdiction of the Court of Disputed Returns, the one which has been argued in these proceedings, was not presented for decision in Wood. Any discussion of that question was therefore obiter. Furthermore, the Full Court concluded that it was not necessary to determine whether Senator Wood was incapable of being chosen or of sitting as a Senator by reason of the provisions of s44(i) of the Constitution [361] . The Court, accordingly, did not address the question of whether, if s44(i) had been the only ground of disqualification, it would have been capable of being agitated pursuant to Div 1. Nor did the Full Court, when Sykes v Cleary (No 2) [362] came before it, review the holding of Dawson J on the jurisdictional question. It simply answered the two questions reserved to it [363] . The Full Court (which included Dawson J) did not address the matter of jurisdiction based on a petition within Div 1.
[273] Accordingly, no authority of this Court binds us now to a particular conclusion. Dicta exist in other cases which suggest that an assumption has been made that jurisdiction on a petition exists with respect to qualifications of candidates364. But in this case, that question has been fully argued. It is inappropriate to explore and to attempt to distinguish dicta of individual justices which, in other cases, are said to support or dispute [365] the existence of jurisdiction. In these proceedings, the Court should decide the matter as a point of principle. So approached, the conclusion that there is no jurisdiction is plain.
[274] To the argument that this produces an odd result in which the Court of Disputed Returns, on a petition, is confined to machinery questions and incapable of deciding without reference from a House an issue fundamental to the due election of a candidate, viz that candidate's qualification or disqualification under the Constitution, there are several answers. They go beyond the clear language and structure of the Act, its constitutional setting and the history that preceded and followed its original enactment.
[275] Where a person is apparently the successful candidate, disputes about the counting of ballot papers and illegal practices [366] having been resolved, that person is on the face of things entitled to take his or her place in the Parliament without undue distraction of the kind which further disputes as to qualification or as to the election might occasion. Although the person might be "incapable of being chosen or of sitting" [367] , subject to the Constitution, parliamentary privilege, tradition and courtesy reserve the decision on that question to the House concerned. It is, after all, dealing with a person who is, or shortly will be, one of its own. Although it might be said to be theoretically desirable that any elector should be able to challenge before the Court of Disputed Returns the apparently successful candidate's constitutional qualifications, the withholding of jurisdiction in that regard from the Court of Disputed Returns, in the case of a person elected and returned, is by no means without precedent, as this Court noted in In re Wood [368] .
[276] The same justification for the distinction as existed in history underpins that now found as between Div 1 and Div 2 of PtXXII of the Act. It is, in my view, a serious defiance of the distinction there drawn to acknowledge suggested defects in the drafting of provisions of particular sections in Div 1 to engage in the surgery of constitutional severance and then to stretch words expressed in general terms to perform functions which the language, history and scheme of the Act show, with clarity, were not those which the Parliament had in mind. Whereas the Parliament accepted that questions going to the democratic integrity of a disputed election might be resolved by the Court of Disputed Returns on an elector's petition, issues respecting the qualifications of a person elected by that process, it retained to itself. The involvement of the Court of Disputed Returns under Div 2 was to be confined to a jurisdiction initiated by the relevant House of Parliament, and that House alone. It is pointless otherwise to dispute the justifiability or merits of the distinction. History, long-standing parliamentary practice and the Constitution itself confirm the existence of the distinction which the Act has merely preserved. The duty of any court, in the absence of some other constitutional constraint or requirement, is to give effect to this constitutional and legislative purpose and to observe the distinction.
[277] To the complaint that this might result in a person, although disqualified, being chosen and sitting as a Senator or member of the House of Representatives (or for that matter being held disqualified from doing so for purely political reasons) there are several answers. First, the reservation of the determination of qualifications to the respective Houses of the Parliament was recognised in s47 of the Constitution. It might have been maintained indefinitely, if the Parliament did not otherwise provide. It should not be assumed that in matters of this kind the Federal Parliament would act otherwise than with propriety and lawfulness as the Constitution presumes. Secondly, whilst observing considerable restraint against intruding into the evaluation of the occasion for the exercise of a privilege belonging to a House of the Parliament [369] and ordinarily permitting parliamentary procedures to be completed before they intervene [370] , the ordinary courts of the land, including this Court, exist to uphold the law and the Constitution in relation to the Parliament as to the Executive Government and the courts themselves [371] . Where it could clearly be demonstrated that a person was incapable of being chosen or of sitting as a Senator or a member of the House of Representatives [372] , and particularly where, having been allowed to sit, no steps were taken to invoke the Act to resolve the disputed qualification, a person with standing would be entitled to secure relief of an appropriate kind under s75(v) of the Constitution directed to a relevant officer of the Commonwealth.
[278] Although in several places the Act purports to limit disputes as to the validity of any election or return [373] to proceedings by way of petition addressed to the Court of Disputed Returns "and not otherwise" and purports to make all decisions of that Court, whether in such disputes [374] or in proceedings on a reference under Div 2 by either House of the Parliament [375] "final and conclusive and without appeal, and ... not [to] be questioned in any way" [376] , such provisions appearing in the Act could have no operation to defeat the availability of relief otherwise provided by the Constitution. No such relief was sought in this case. It is therefore unnecessary and inappropriate to explore the questions that would be raised [377] . But it should not be assumed that the Constitution would provide no relief where the relevant House of the Parliament failed or refused to "determine" a question respecting the qualification of a Senator or of a member of the House of Representatives. Neither a lack of provision in Div 1 nor even an invalid provision for reference in Div 2 would necessarily leave a meritorious complainant without constitutional remedy.
Conclusions
[279] It follows that the Court of Disputed Returns has no jurisdiction to hear and determine the petition of either of the petitioners challenging the election of Mrs Hill as a Senator for the State of Queensland. Question (a) in each of the cases stated for the opinion of the Full Court should therefore be answered "No".
[280] In these circumstances, it is unnecessary for me to decide whether an additional reason exists for reaching this conclusion by virtue of the impermissibility, under Ch III of the Constitution, of conferring jurisdiction on the High Court as the Court of Disputed Returns, including the jurisdiction purportedly conferred in Div 1 of PtXXII of the Act. Before considering constitutional questions, it is ordinarily appropriate and usually necessary to ascertain the meaning of the Act, the constitutional validity of which is disputed. Where, as in this case, the provisions of the Act, properly understood, afford no jurisdiction to the Court of Disputed Returns, invoked on the petition of an elector, no question arises as to whether jurisdiction, if it were conferred, would be beyond the power of the Parliament because contrary to Ch III. Because it is unnecessary to answer that question, I will refrain from doing so. However, perhaps I can be permitted to contrast the willingness of the majority in this case to countenance the conferral of a peculiar and purportedly exclusive statutory jurisdiction on this Court (in effect reconstituting and even renaming it as a kind of special creature of the Parliament to perform a multitude of functions, many of them quasi-political and semi-advisory, according to extremely broad criteria and sometimes peremptory, and even apparently arbitrary, procedures) with the very strict approach taken in other recent decisions where the negative implications of Ch III of the Constitution, unstated in the text, have been given a most generous rein [378] .
[281] Each of the questions raised in the cases stated was fully argued. Of course, I have formed views about them. But it is inappropriate to express those views because, at the heart of my approach to these proceedings is the conviction that the Parliament, so far as the Act is concerned, has kept to itself, in the first instance, consideration of disputes as to the qualification of persons otherwise lawfully elected as a Senator or as a member of the House of Representatives. At least in these proceedings, it should therefore be left to the parliamentary process, and not to a court, to determine what should be done in relation to the suggested disqualification of Mrs Hill.
[282] This is not a case where the alleged disqualification might be decided simply, as by a certificate of conviction of a relevant offence [379] , proof that the person is an undischarged bankrupt [380] , holds an office of profit under the Crown [381] or has a direct and impermissible pecuniary interest in an agreement with the Public Service of the Commonwealth [382] . Very many Australian citizens, whose allegiance to Australia could not be questioned, have dual citizenship with other countries. Estimates were given during the hearing, running perhaps into millions, of Australian citizens who would be affected. Their status for s44(i) of the Constitution could not, in my opinion, depend upon (or be surrendered to) the laws of other countries which are many and varied. The defects of s44(i) of the Constitution in a country whose citizens are drawn from so many other lands and nationalities has frequently been called to notice [383] . The consideration of whether Mrs Hill was incapable of being chosen or of sitting as a Senator raises issues which may have considerable political significance upon which, in the first instance at least, it is completely appropriate to leave it to the Senate, rather than a court, to make a determination.
[283] If, pursuant to s376 in Div 2, the Senate, by resolution, were to refer to the Court of Disputed Returns any question respecting the qualifications of Mrs Hill to be a Senator, that would be the appropriate time for such a Court to consider the reference and, if its validity were upheld, to give its response. This Court may not do so on a petition addressed to it under s353 in Div 1 for it has no jurisdiction to try that petition under s354 in the same Division. The scheme of the Act should be followed at this stage. Not least is this necessary because the scheme of the Act reflects that of the Constitution itself [384] .
Costs
[284] A question arises as to the costs of the proceedings in this Court. Those proceedings are before the Court pursuant to the two references made to the Court under the Judiciary Act. By s26 of that Act, the Court has jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction. It is pursuant to that provision and not s360 of the Act that costs must be provided [385] . The special provisions of s360(4) by which the Court of Disputed Returns may "order costs to be paid by the Commonwealth where the Court considers it appropriate to do so" are unavailing in the view which I take of the nature of this Court's jurisdiction and the lack of jurisdiction of the Court of Disputed Returns. Ordinarily, because the petitioners have invoked a jurisdiction which does not belong to the Court of Disputed Returns, they would be ordered to pay the costs occasioned by their error.
[285] However, before this Court the Attorney-General for the Commonwealth intervened in support of the interests of the petitioners. The ambiguities and uncertainties of the Act have been drawn to attention in the past. The issues litigated involve constitutional and statutory questions of general application and of fundamental importance to the operation of federal electoral law. In such circumstances, I consider that it is just that the costs of the petitioners in each case stated in this Court and of the first respondent should be borne by the Commonwealth. The second respondent should bear its own costs.
[286] The questions in the case stated should be answered, and the orders for costs made, as McHugh J has provided.