Sue v Hill; Sharples v Hill

199 CLR 462
[1999] HCA 30

---

(Decision by: Gleeson CJ, Gummow and Hayne JJ)

Sue; Sharples v
Hill

Court:

Judges:
Gleeson CJ, Gummow, HayneGaudron
McHugh
Kirby
Callinan JJ

Judgment date: 23 June 1999

---

Decision by:
Gleeson CJ, Gummow and Hayne JJ

[1] In each of the cases stated, we agree that the relief should be formulated and answers given in the terms proposed by Gaudron J.

[2] The questions anterior to the determination of the relief are threefold. It is submitted for Mrs Hill that there has been no legislative conferral of jurisdiction on this Court, that, if the legislation has attempted such conferral, this would not involve the exercise of the judicial power of the Commonwealth and so would be ineffective, and that, within the meaning of s44(i) of the Constitution, the United Kingdom is not a "foreign power". We will deal with the issues raised by these submissions in that order. The text of a number of the constitutional and statutory provisions which fall for consideration is set out in the reasons of Gaudron J. However, for ease of comprehension, some of these are repeated in what follows. In addition to the Commonwealth Electoral Act 1918 (Cth) ("the Act") as it now stands, it will be necessary to refer to provisions of earlier legislation repealed by s3 of the Act, in particular the Commonwealth Electoral Act 1902 (Cth) ("the 1902 Act") and the Disputed Elections and Qualifications Act 1907 (Cth) ("the 1907 Act").

I JURISDICTION

[3] It is submitted for Mrs Hill that the present litigation is misconceived. The contention is that, on its proper construction, Div 1 (s352-s375A) of PtXXII of the Act ("Div 1") does not provide for the disputation by petition addressed to the Court of Disputed Returns of the validity of an election as Senator or Member of the House of Representatives ("the House") where the alleged invalidity arises by reason of a disqualification imposed by s44 of the Constitution. The contention is that such an issue may be tested in the Court only on a reference under Div 2 (s376-s381) of PtXXII ("Div 2") and this requires a resolution of the chamber concerned. S44 states that any person who answers any of the descriptions in para(i)-para(v) "shall be incapable of being chosen" as a Senator or a Member of the House or of sitting as a Senator or Member. We would reject this submission.

[4] The incapacity specified in s44 is imposed by the Constitution itself. However, that is not to deny that a dispute as to the engagement of the constitutional provision may be entertained by the Court of Disputed Returns on a petition contesting the validity of an election or return. Rather, for such a case, the Parliament has provided, to adapt the words of Barwick CJ, the means "of resolving the facts and their legal consequences" ^[1] by enacting Div 1. In this operation, the Division is a law for the judicial determination of a matter arising under the Constitution or involving its interpretation, within the meaning of s76(i) of the Constitution.

[5] Each of the petitions in respect of the election of Mrs Hill founds upon the proposition that she was incapable of being chosen as a Senator because, within the meaning of s44(i) of the Constitution, she was "a citizen of a foreign power". Any question respecting Mrs Hill's qualification as a Senator, a vacancy in the Senate and any question of her disputed election to the Senate would, if the Parliament had not otherwise provided, have been for the determination of the Senate. That would have followed from the operation of s47 of the Constitution. S47 states:

"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."

The question is whether the Parliament has "otherwise provided". It has done so in Div 1.

[6] The contrary submission fixes upon those provisions of Div 1 which empower the Court of Disputed Returns to act by reason of a contravention of the Act or the regulations made thereunder (defined as an "illegal practice"), or a contravention of s326 of the Act (defined as "bribery" or "corruption"), or a contravention of s327 of the Act or s28 of the Crimes Act 1914 (Cth) (together defined as "undue influence"). It is convenient to consider the provisions of the Constitution which support these elements in the scheme established by Div 1.

[7] The phrase "[u]ntil the Parliament otherwise provides" appears throughout Ch I (s1-s60) of the Constitution ^[2] . S10 and s31 provide, respectively, that, "[u]ntil the Parliament otherwise provides" but subject to the Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of Parliament of the State shall apply, as nearly as practicable, to elections of Senators or Members of the House. S10 and s31 attract the operation of s51(xxxvi) of the Constitution. This authorises the Parliament to make laws with respect to matters in respect of which the Constitution "makes provision until the Parliament otherwise provides". The power extends to the making of laws which regulate the conduct of persons in relation to elections ^[3] and thus to the making of laws proscribing bribery or corruption, illegal practices and undue influence.

[8] However, the terms of s10 and s31 of the Constitution stipulate that such provision by the Parliament is "subject to this Constitution". It follows that any question respecting an election which is disputed by reason of alleged contravention of these legislative provisions in the first instance is committed by s47 of the Constitution for determination by the chamber in which the question arises. As indicated earlier, that requirement of s47 itself is subject to other provision by the Parliament. With respect to the practices which it has proscribed by statute, the Parliament has legislated under s76(ii) of the Constitution to provide for the determination of matters that arise thereunder. The Parliament has made a law conferring original jurisdiction on this Court to determine matters arising under laws made by the Parliament which forbid certain electoral practices.

[9] In Hudson v Lee ^[4] , the petition which disputed the election of a Member of the House asserted engagement in a practice said to be illegal but which was not one of bribery or corruption, undue influence or illegal practice as defined in s352(1) of the Act. Gaudron J determined that s352(1) identified exhaustively the practices, alleged engagement in which might properly found a petition under Div 1 ^[5] . The effect of that decision is consistent with the position established by Chanter v Blackwood ^[6] with respect to the 1902 Act, namely that the legislation does not leave room for the validity of an election or return to be disputed for a practice outside those identified in s352. This is so even if, under the body of authority established by rulings of committees of the House of Commons before the passing of the Parliamentary Elections Act 1868 (UK) ("the 1868 Act"), the practice would have been recognised as bribery or undue influence. In the United Kingdom, this lex parliamentarii "still exists in certain circumstances despite the [1868] Act" ^[7] , and its continued operation was recognised by s3 of the 1868 Act ^[8] .

[10] In addition to proscribing certain practices which may be said to go to the democratic credentials of persons whose election or return is the subject of a petition under Div 1, the Act requires certain personal qualifications. In particular, no person is capable of being elected as a Senator or a Member of the House "unless duly nominated" (s162). Subs(2) of s163 provides that a person is not entitled to be nominated for election as a Senator or a Member of the House unless qualified under subs(1). A person will be so qualified under subs(1) if that person has reached the age of 18 years, is an Australian citizen and is either an elector entitled to vote at an election for the House or a person qualified to become such an elector. S8 in conjunction with s30 of the Constitution had specified criteria qualifying electors but those criteria were subject to other provision by the Parliament by a law supported by s51(xxxvi) ^[9] . PtVII (s93-s97), particularly s93, makes such provision for entitlement to vote and s163(1) is to be read with it. Contravention of s162 falls within the definition of "illegal practice" in s352(1), thereby attracting the operation of Div 1.

[11] s162 and related sections in PtXIV (s162-s181), which is headed "The nominations", do not go beyond the statement of qualifications by reproducing the constitutional imperative of disqualification or incapacity spelled out in s44 of the Constitution. To do so would have been a work of supererogation. Yet it hardly follows that there is excluded from the operation of Div 1 the provision of judicial process to resolve facts concerning the operation of the constitutional imperative and the provision of remedies to deal with the legal consequences.

[12] The oddity and inconvenience which would follow from acceptance of such a submission as to the construction of PtXXII will be readily apparent. The oddity would be that the Parliament would have provided for the determination on a petition of objections based upon lack of the necessary statutory qualification for election but not upon concomitant questions respecting constitutional ineligibility. The inconvenience would be that an issue of constitutional ineligibility would be left for determination by the chamber in question after the person in question had taken his or her place, with or without a reference under Div 2. In the interim, such a person might participate in the passage of laws and the transaction of other business of the chamber whilst disentitled by the Constitution from doing so. Further, the Senator or Member would be at hazard of proceedings in this Court for recovery of penalties under s3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ^[10] .

[13] In the state of affairs as it existed with respect to elections to the House of Commons before the 1868 Act, distinctions were drawn between ineligibility by reason of statutory prohibition and ineligibility by reason of what the 1868 Act called "the Common Law of Parliament". For example in Orme, A Practical Digest of the Election Laws, published in 1796, it was stated ^[11] :

"'Aliens' are incapable of being members by the law of parliament, and are expressly excluded from voting by a resolution of the house" ^[12] .

In the same work, the author referred to various statutory criteria for qualification. He also discussed ^[13] the procedural requirements imposed by a standing order of 21 November 1717 in respect of election petitions where objection was made for failure to satisfy the property qualifications for candidates which were then stipulated by statute ^[14] .

[14] Under the 1868 Act, the grounds upon which petitions were entertained by the judges included the disqualification of a candidate at the time of election on grounds, including alienage, now found in s44 of the Constitution ^[15] .

[15] In the Australian colonies, provision approximating that of the 1868 Act was made by the Electoral Act 1896 (Tas) and the Electoral Act 1899 (WA) ^[16] . The establishment of the Commonwealth involved the formation of an elected bicameral federal legislature with the imposition by the Constitution itself of certain disqualifications rendering persons incapable of being chosen as Senators or Members of the House. The consequences of that constitutional imperative necessarily differed from the situation in the United Kingdom in 1900. In that country there was no federal system, no rigid constitution and an upper chamber of the legislature composed of hereditary peers (including representative peers from Scotland and Ireland) and certain bishops and judges.

[16] The provisions for composition of the Australian Senate by popular election were, in 1900, unique in the federations in common law countries ^[17] . There is nothing to suggest that, in enacting the 1902 Act, the Parliament intended to keep to itself so much of the determination of disputed elections to the House or the Senate as turned not upon lack of statutory qualification from membership, but upon constitutional disqualification. Indeed, the indications of legislative intent are to the contrary.

[17] The Bill for what became the 1902 Act was introduced into the Senate by Senator R E O'Connor, the Vice-President of the Executive Council ^[18] . In the course of debate in committee, there was a motion to amend cl190 by omitting from it the words "a Justice of the High Court of Australia". This clause (which became s193(1) of the 1902 Act ^[19] ) read:

"There shall be a Court of Disputed Returns which shall be constituted by a Justice of the High Court of Australia, or a Judge of the Supreme Court of any State." ^[20]

Speaking of the matters which would be entertained by the courts referred to in cl190, Senator O'Connor observed ^[21] :

"It is quite true that generally speaking they will be very simple matters to determine, but very frequently and at any time the courts may be called upon to interpret the Electoral Act, or the Constitution, to administer the laws by which the Commonwealth is guided. Surely the interpretation of those laws ought to be left in the hands of the Commonwealth's court?"

When the Bill reached the House, the Minister having its carriage, Sir William Lyne, the Minister for Home Affairs, described as follows the intent of what became PtXVI of the 1902 Act ^[22] :

"It is proposed to remove the dealing with election petitions from the control of Committees of Elections and Qualifications, to which such matters are now referred, and have them tried by the Full High Court, but until the establishment of the High Court the Supreme Court of each State will be the court of disputed returns. The High Court is to have jurisdiction either to try the petition, or refer it for trial to the Supreme Court of the State for which the election was held or the return made, and the powers conferred by the clause - 198 - may be exercised by a single Justice or Judge."

[18] These provisions are now reflected in Div 1 of the present legislation, particularly in subs(1) and subs(2) of s354, but with additional provision in respect of the Federal Court and Territory Supreme Courts. Further, s192 of the 1902 Act still persists as s353(1) of the Act. This states:

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

The phrase "and not otherwise" implements the policy stated by Sir William Lyne in 1902 to remove the dealing with election petitions from the control of the Committees of Elections and Qualifications to which such matters were then referred, and to direct the petitions for trial in the Court of Disputed Returns.

[19] The constitutional incapacity of an individual to be chosen as a Senator or Member of the House is a matter going to the validity of the election of that person and may be a matter going to the validity of the election process in part or in whole. In declaring, in exercise of the power conferred by s360(1)(v) of the Act, that that person, although returned as elected, was not duly elected and in making consequential orders, the Court declares the legal consequences which flow from the operation of the Constitution. S374 implements such a decision by stating that the person "shall cease to be a Senator or Member of the House". In so providing, the legislation gives effect to the prohibition in s44 of the Constitution upon that person sitting as a Senator or Member of the House.

[20] In Blundell v Vardon ^[23] , Barton J declared absolutely void the election of the respondent as a Senator for the State of South Australia. The Parliament of that State, assuming to act under s15 of the Constitution, then chose a person as Senator to fill the vacancy, that person was duly certified and sat and voted as a Senator. The dispute which then arose turned upon the question whether a vacancy existing after the declaration by the Court of Disputed Returns was a vacancy arising in the place of a Senator before the expiration of that person's term of office, within the meaning of s15 of the Constitution. As the 1902 Act then stood, the dispute was not one as to the validity of an election or return within the meaning of s192. However, in the course of the Vardon controversy, the 1902 Act was amended by s5 of the 1907 Act. This added the following provision at the end of s192:

"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 provision is now found in s353(2) of the Act and is supplemented by subs(3) and subs(4) to deal with replacements of Senators for the Australian Capital Territory and the Northern Territory.

[21] Given the course of the Vardon dispute, part of the resolution of which involved the amendment of s192 of the 1907 Act, it is plain that when the present statute was enacted in 1918 the Parliament proceeded on the footing that the questions of validity entrusted by Div 1 to the Court of Disputed Returns included questions depending for their resolution upon the interpretation and application of provisions of the Constitution. Both the text of s192, and its present representative, s353(1), and the parliamentary history lend no support to the notion that each chamber kept to itself the determination of petitions which relied upon disqualification on constitutional grounds rather than purely legislative grounds.

[22] The Vardon litigation was ultimately resolved in his favour by the decision in Vardon v O'Loghlin ^[24] . It was there declared that the election of his replacement, the respondent, by the Houses of Parliament of the State of South Australia was absolutely void. Vardon had petitioned the Senate for a declaration that the respondent had not been duly chosen or selected as a Senator. The petition had been referred to the High Court under the specific terms of s2(1) of the 1907 Act. That Act also amended the 1902 Act by introducing what is now Div 2 ^[25] . Division 2 includes s376, which states:

"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."

[23] It is submitted by Mrs Hill that Div 2 bears upon the construction of Div 1 by limiting what otherwise is the ordinary meaning of the terms of s353(1). The contention is that there is removed from the grounds which may found a petition disputing validity of an election or return any question respecting the qualification of a Senator or Member of the House or respecting a vacancy in either house of the Parliament, even if those questions arise in a disputed election.

[24] The expressions "qualification of a senator", "vacancy in either House" and "any question of a disputed election" appear in s47 of the Constitution. It was submitted first that the expressions are mutually exclusive and the expression "any question of a disputed election" does not include any question as to disqualification. From that it was said to follow that the expression in s353(1) "the validity of any election or return" did not include disputes by reason of constitutional ineligibility.

[25] However, in Sykes v Cleary [No 1] ^[26] , Dawson J determined that there is nothing in s47 to suggest that the three categories of questions there referred to are mutually exclusive. With Gaudron J, we would adopt what his Honour said on the point. This is fatal to the first of the sequential steps in Mrs Hill's argument.

[26] Something of an argument in terrorem also was presented. It was suggested that the situation might arise where, whilst there was pending a petition under Div 1 challenging an election by reason of constitutional ineligibility of the Senator or Member in question, that Senator or Member might take his or her seat and that, despite the pendency of the petition, the relevant chamber could proceed to determine the qualification itself without waiting for the determination of the petition and without making a reference under Div 2. However, questions respecting the exercise by the chambers of the Parliament of their constitutional authority bestowed by s47 of the Constitution are not to be approached by reference to some distorting possibility ^[27] .

[27] We would reject the attack on the competency of the petition made on the footing that the validity of an election or return may not be disputed by petition under s353(1) of the Act on the grounds of the constitutional ineligibility of the Member returned. It is necessary then to consider so much of the attack on competency as asserts that the jurisdiction under Div 1, which is invoked by these petitions, cannot be conferred upon a federal court or a court exercising federal jurisdiction consistently with Ch III of the Constitution.

II THE JUDICIAL POWER OF THE COMMONWEALTH

[28] S354(1) of the Act states that this Court "shall be the Court of Disputed Returns" and shall have jurisdiction (i) to try the petition itself or (ii) to refer the petition for trial to the Federal Court or to the Supreme Court of the State or Territory in which the election was held or the return made. Subs(2) confers jurisdiction upon the court to which the reference is made by this Court. In addition, subs(3) empowers the High Court to refer part of a petition consisting of a question or questions of fact and, subject to any directions by the High Court, jurisdiction is conferred by subs(4) upon the court to which reference is made by this Court to deal with that part of the petition.

[29] Counsel for Mrs Hill relied upon what was said to be involved in the reasoning in the judgments in Holmes v Angwin ^[28] . S354, like its predecessor, s193 in the 1902 Act, differs from the provisions of the Electoral Act 1904 (WA) which were considered in Holmes v Angwin. The Western Australian statute was construed as, in substance, creating a new and separate tribunal consisting of a judge of the Supreme Court of Western Australia as a persona designata. On the other hand, s354(1) fixes upon "the High Court" and specifies two matters in respect of the High Court. First, the High Court "shall be the Court of Disputed Returns" and secondly, it "shall have jurisdiction" to try or otherwise deal with the petition. Elsewhere in PtXXII there is reference to "the Court of Disputed Returns", "the court" and to "the High Court of Australia". To a significant degree, the rather confused drafting is a reflection of the circumstance that jurisdiction is conferred not only upon the High Court but, in the circumstances indicated above, upon the Federal Court and the Supreme Courts of the States and Territories. An example, as Gaudron J points out in her reasons for judgment, is the provision in s373 dealing with costs.

[30] In the oral argument, no submission for Mrs Hill to the effect that Div 1 selects the Justices of this Court as personae designatae was pressed. As already indicated, any such submission would not be well founded. It also is apparent from the first reading speeches upon the Bill for the 1902 Act, to which reference has been made in sI of these reasons, that the legislative intention was to confer jurisdiction upon the High Court and for it to be identified, in the exercise of that jurisdiction, as the Court of Disputed Returns. This was achieved without the creation of any new federal court under s71 and s72 of the Constitution, or the selection of Justices to exercise functions as personae designatae.

[31] However, it is submitted for Mrs Hill that the power invoked by the petitions in respect of her election is not the judicial power of the Commonwealth, with the result that the petitions are incompetent. The broad submission is made that the authority to determine questions of a disputed election to either chamber of the Parliament cannot be conferred upon this Court or any other court exercising the judicial power of the Commonwealth because such authority is unequivocally legislative in character. Reference was made to developments, concerning disputed elections to the House of Commons, leading to the enactment of the 1868 Act and to the discussion of the subject by Higgins J in Holmes v Angwin ^[29] . However, what emerges is that the passing of the 1868 Act was, to adapt an observation of Mason J in Berrill v Hughes ^[30] :

"the product of the controversial and unsatisfactory history of Parliamentary review of disputed elections".

[32] It is true that in Holmes v Angwin, Barton J said ^[31] :

"The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants."

Griffith CJ was of similar mind ^[32] . Their Honours were speaking at a time before it was recognised in this Court that, whilst some powers when entrusted to a repository other than a court may be characterised as legislative or administrative and non-judicial, when they are entrusted in an appropriate context to a court they may involve the exercise of judicial power ^[33] . This functional analysis appears to have been first recognised by Isaacs J in 1926.

[33] In Federal Commissioner of Taxation v Munro ^[34] , Isaacs J included "the determination of the validity of parliamentary elections" among matters which were subject to no a priori exclusive delimitation but were capable of assignment by Parliament to more than one branch of government. Such a matter, his Honour continued, was "capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances"; to deny that proposition would be to "seriously affect the recognized working of representative government" ^[35] .

[34] In this respect, it is important to appreciate that, in dealing with the validity of an election or a return on petition presented pursuant to Div 1 of the Act, the Court of Disputed Returns is not applying the amalgam of centuries of practice and piecemeal statutory provision which constituted "the Common Law of Parliament" referred to in the definition of "Corrupt Practices" in s3 of the 1868 Act. Rather, as indicated in sI of these reasons, what is involved in Australia, where the existence of illegal practices and the like are asserted, is contravention of the particular legislative provisions identified in s352(1) of the Act. That is what was decided by Gaudron J in Hudson v Lee ^[36] . In issue is not the application of "the Common Law of Parliament" but the contravention of norms which owe their existence to laws made by the Parliament itself, in exercise of the power conferred by s51(xxxvi) of the Constitution. Where the contravention is of qualification requirements imposed by s44 of the Constitution itself, the position is even plainer. The lex parliamentarii did not know of such things.

[35] It should be noted that, even with respect to "the Common Law of Parliament", the view that the character of the jurisdiction exercised to try election petitions was purely incidental to legislative power, as stated by Barton J in Holmes v Angwin ^[37] , has not gone without comment in this Court. In delivering the judgment of the Court in R v Richards; Ex parte Fitzpatrick and Browne ^[38] , Dixon CJ noted the tendency to regard the privileges and powers of the House of Commons as something essential or proper for its protection rather than as strictly judicial. His Honour added ^[39] :

"This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically - perhaps one might even say, scientifically - they belong to the judicial sphere."

[36] Dixon CJ was speaking in the course of considering the relationship between s49 and Ch III of the Constitution. Had specific provision with respect to disputed elections not been made by s47 of the Constitution, such matters may have fallen within the general provisions of s49. This states:

"The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth."

In that event, it may be that, consistently with R v Richards; Ex parte Fitzpatrick and Browne ^[40] , questions as to "the Common Law of Parliament" would have been drawn in by s49 and would fall outside Ch III. This would have had to have been so, even though a dispute concerning the operation of s49 would have otherwise been a matter arising under or involving the interpretation of the Constitution within the meaning of s76(i). But that is not the regime that the Constitution established.

[37] Given the terms of s47 of the Constitution, the provisions in s46 for the recovery in a court of competent jurisdiction of penalties at the suit of any person suing for them, and the existence since 1902 of comprehensive legislation regulating elections and dealing with disputed returns, no such questions arise. There is nothing in the nature of the resolution of disputed elections which places such controversies necessarily outside the exercise of the judicial power of the Commonwealth.

[38] There is a further point to be noted. As indicated in sI of these reasons, the complaint in each petition is that Mrs Hill, as a citizen of a foreign power, was rendered by s44(i) of the Constitution incapable of being chosen as a Senator. It is upon that footing that the validity of her election is challenged by the petitions under s353(1) of the Act. In this operation, s353(1), in conjunction with s354, constitutes a law conferring original jurisdiction on the High Court in a matter arising under the Constitution or involving its interpretation. The observations of Isaacs J in Federal Commissioner of Taxation v Munro ^[41] , applying a functional analysis to the determination of the validity of parliamentary elections, are directed to the determination of disputes as to legislatively proscribed practices in relation to elections rather than to questions of constitutional disqualification. To decide whether a person was incapable of being chosen as a Senator or Member of the House by reason of that person answering the description in one or more of the paragraphs of s44 of the Constitution may involve the determination of facts. But these facts will be constitutional facts and the determination of constitutional facts is a central concern of the exercise of the judicial power of the Commonwealth. No resort in the present case to "functional analysis" is necessary to uphold the jurisdiction of the Court to determine whether Mrs Hill was not duly elected. If the Court were to exercise its power under s360(1)(v) to declare that Mrs Hill was not duly elected, the Court thereby would recognise that which the operation of the Constitution itself brought about.

[39] A more focused attack was made upon the validity of Div 1 by directing attention to particular provisions. These, it was said, indicate that the powers conferred by the Division were to be exercised in a manner inconsistent with the exercise of the judicial power of the Commonwealth. Gaudron J indicates in her reasons for judgment that the provisions fall into three groups: those said to confer general discretions to be exercised without regard to legal standards; those giving directions of a kind not normally given to courts; and those relating to decisions of the Court of Disputed Returns. We agree with her Honour's analysis of these provisions.

[40] We would add four points. The first concerns s354(6). This is a law supported by s79 of the Constitution and states that the jurisdiction conferred by s354 "may be exercised by a single Justice or Judge". The provision is permissive rather than mandatory. It is consistent with the operation of s18 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") whereby, as in the present proceedings and in Sykes v Cleary [No 2] ^[42] , cases have been stated for the Full Court of this Court. The Full Court is, of course, exercising original jurisdiction.

[41] Secondly, the availability of procedures under s18 diminishes what otherwise would be the impact of s368. S18 provides:

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

As Gaudron J has pointed out, in its application to the appellate jurisdiction of this Court, s368 is to be supported as a prescription by the Parliament of an exception within the meaning of s73 of the Constitution. However, were it not for the availability of the procedures under s18 of the Judiciary Act, particularly with respect to questions arising under the Constitution or involving its interpretation, a question may have arisen as to the validity of s368. The joint judgment in Cockle v Isaksen ^[43] indicates that the power to prescribe exceptions does not extend to laws which "eat up or destroy" the general regime specified in s73 of the Constitution as to the appellate jurisdiction of the High Court.

[42] Thirdly, s364 should be noted. This states:

"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."

Provisions of this type are not inimical to the exercise of the judicial power of the Commonwealth. They do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness ^[44] .

[43] Finally, a reference should be made to s360(2) of the Act. This provides:

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

The powers in question are set out in para(i)-para(x) of s360(1). Para(i)-para(iv) deal with such matters as adjournments, the compulsory attendance of witnesses and production of documents and the taking of evidence. There is nothing hostile to the exercise of the judicial power of the Commonwealth in providing for the exercise of the discretion involved in such matters in accordance with what the Court thinks just and sufficient. So also with respect to the power to award costs conferred by para(ix) of s360(1), supplemented by s360(4).

[44] Para(v)-para(viii) of s360(1) confer powers to dispose of a petition by declaratory and other orders dismissing or upholding the petition in whole or in part. Where there has been a finding that a successful candidate has committed or has attempted to commit bribery or undue influence, s362(1) requires the Court to declare the election void. Provision is made by s362(3) which directs the Court as to what should be done where other malpractices have been found. Thus, s362 operates to limit what otherwise might have been thought to be the width of the discretion under s360(2) and the words "just and sufficient" therein. Where what is involved is ineligibility by reason of contravention of s44 of the Constitution, justice and sufficiency would, as in this case, at least require a declaration that the person who was returned as elected was not duly elected, within the meaning of s360(1)(v). The reasons of Gaudron J in the present case illustrate that what further or other relief should be given depends upon the circumstances disclosed by the particular case.

[45] In the context in which s360(2) appears in the Act, it does not confer some uncontrolled discretion exercisable by recourse to other than legal norms. Like that considered by Kitto J in R v Commonwealth Industrial Court; Ex parte the Amalgamated Engineering Union, Australian Section ^[45] , the discretion involved is "not so indefinite as to be insusceptible of strictly judicial application" ^[46] . Indeed, as Mason and Murphy JJ remarked in R v Joske; Ex parte Shop Distributive and Allied Employees' Association ^[47] :

"[T]here are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v Cominos ^[48] )."

[46] We turn now to consider the substantive question, respecting the construction and application of s44(i) of the Constitution.

III FOREIGN POWER

[47] At the material time, Mrs Hill was regarded as a British citizen by the statute law of the United Kingdom which is identified by Gaudron J in her reasons for judgment. In construing s44(i) of the Constitution, the Court should apply the classification given to Mrs Hill under United Kingdom law ^[49] . The question then is whether, at the material time, the United Kingdom answered the description of "a foreign power" in s44(i).

A foreign power

[48] The expression "a foreign power" in s44 does not invite attention to the quality of the relationship between Australia and the power to which the person is said to be under an acknowledgment of allegiance, obedience or adherence or of which that person is a subject or a citizen or entitled to the rights and privileges of a subject or citizen. That is, the inquiry is not about whether Australia's relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty ^[50] .

[49] Further, because the question is whether, at the material time, the United Kingdom answered the description of "a foreign power" in s44(i), it is not useful to ask whether that question could have been easily answered at some earlier time, any more than it is useful to ask whether it is easily answered now. No doubt individuals will be directly affected by the answer that is given and, to that extent, their rights, duties and privileges may be affected. But any difficulty in deciding whether the United Kingdom did answer the description at the material time, or in deciding when it first answered that description, does not relieve this Court of the task of answering the question that now is presented.

Constitutional interpretation

[50] In Bonser v La Macchia, Windeyer J referred to Australia having become "by international recognition ... competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty" ^[51] . His Honour regarded this state of affairs as an instance where "[t]he law has followed the facts" ^[52] . It will be apparent that these facts, forming part of the "march of history" ^[53] , received judicial notice ^[54] . They include matters and circumstances external to Australia but in the light of which the Constitution continues to have its effect and, to repeat Windeyer J's words ^[55] , "[t]he words of the Constitution must be read with that in mind".

[51] There is nothing radical in doing as Windeyer J said; it is intrinsic to the Constitution. What has come about is an example of what Story J foresaw (and Griffith CJ repeated ^[56] ) with respect to the United States Constitution ^[57] :

"The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence."

[52] The changes to which Windeyer J referred did not require amendment to the text of the Constitution. Rather, they involved ^[58] :

"in part, the abolition of limitations on constitutional power that were imposed from outside the Constitution, such as the Colonial Laws Validity Act 1865 (Imp) and restricting what otherwise would have been the proper interpretation of the Constitution, by virtue of Australia's status as part of the Empire. When the Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope."

Changes in the United Kingdom

[53] So also with respect to changes in the constitutional arrangements in the United Kingdom itself. The condition of those arrangements at any one time may be difficult to perceive by reason of the lack of any single instrument answering the description of a written constitution. Nevertheless, it is readily apparent from judicial decisions in the United Kingdom that the constitutional arrangements of that country have changed since 1900 in at least two respects which are relevant to the issues debated in argument in the present litigation.

[54] The first concerns the identity of "the Crown of the United Kingdom of Great Britain and Ireland" which is identified in the preamble to The Commonwealth of Australia Constitution Act ("the Constitution Act") ^[59] and "the United Kingdom", the sovereignty of which determines, under covering cl2 thereof, the identity of the person identified throughout the Constitution itself as "the Queen".

[55] The United Kingdom of Great Britain and Ireland had come into existence in 1801. In Earl of Antrim's Petition, Lord Reid explained the position as follows ^[60] :

"Prior to 1707 the Kingdoms of England, Scotland and Ireland were separate kingdoms. In 1707 the Kingdoms of England and Scotland were united to form the Kingdom of Great Britain but Ireland remained a separate Kingdom. In 1801 the Kingdoms of Great Britain and of Ireland were united to form the United Kingdom of Great Britain and Ireland."

His Lordship went on to refer to the Irish Free State (Agreement) Act 1922 (UK) which established the Irish Free State with "Dominion Status" and to the Ireland Act 1949 (UK) which declared the Irish Free State to have ceased to be part of "[h]is Majesty's dominions" ^[61] . The result was twofold, that "Ireland as a whole no longer exist[ed] politically" ^[62] and the right of Irish peers to elect representatives from among their number no longer existed.

[56] The result cannot be that, because the present sovereign has never been Queen of Great Britain and Ireland, the Australian Constitution miscarries for the reason, in Lord Reid's language, that "the state of things on which its existence depended has ceased to exist" ^[63] . Rather, and consistently with the reasoning of Windeyer J in Bonser v La Macchia, at least since 1949 the text of the Constitution, in referring to "the Queen", has to be read so as to follow these changed constitutional circumstances in the United Kingdom. Those circumstances may change again ^[64] , and with similar consequences.

[57] The second matter is that in 1982 it was settled in the United Kingdom by the decision of the English Court of Appeal in R v Foreign Secretary; Ex parte Indian Association ^[65] as a "truism" that, whilst "there is only one person who is the Sovereign within the British Commonwealth ... in matters of law and government the Queen of the United Kingdom, for example, is entirely independent and distinct from the Queen of Canada" ^[66] . In addition to those remarks by May LJ, Kerr LJ observed ^[67] :

"It is settled law that, although Her Majesty is the personal sovereign of the peoples inhabiting many of the territories within the Commonwealth, all rights and obligations of the Crown - other than those concerning the Queen in her personal capacity - can only arise in relation to a particular government within those territories. The reason is that such rights and obligations can only be exercised and enforced, if at all, through some governmental emanation or representation of the Crown."

It is to be noted that these conclusions were expressed in the United Kingdom even before the enactment by its Parliament of the Canada Act 1982 (UK) and the Australia Act 1986 (UK) ("the 1986 UK Act").

[58] The construction of provisions of the Constitution is a matter for Australian courts, in particular this Court. However, the position of the United Kingdom as seen by its courts is a relevant matter to which regard has been had by this Court in construing legislative power with respect to "aliens" in s51(xix) ^[68] . So also with respect to the provisions of s44(i). In effect, the submissions for Mrs Hill seek to have this Court ascribe to the United Kingdom, for the purposes of Australian constitutional law, a character which the United Kingdom courts themselves deny to the United Kingdom for the purposes of its constitutional law.

United Kingdom institutions and the Constitution

[59] It may be accepted that the United Kingdom may not answer the description of "a foreign power" in s44(i) of the Constitution if Australian courts are, as a matter of the fundamental law of this country, immediately bound to recognise and give effect to the exercise of legislative, executive and judicial power by the institutions of government of the United Kingdom. However, whatever once may have been the situation with respect to the Commonwealth and to the States, since at least the commencement of the Australia Act 1986 (Cth) ("the Australia Act") this has not been the case. The provisions of that statute make it largely unnecessary to rehearse what are now the matters of history recounted in the judgments in New South Wales v The Commonwealth ^[69] , Kirmani v Captain Cook Cruises Pty Ltd [No 1] ^[70] and Nolan v Minister for Immigration and Ethnic Affairs ^[71] .

Legislative power

[60] As to the further exercise of legislative power by the Parliament of the United Kingdom, s1 of the Australia Act states:

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

[61] The recital to the Australia Act indicates that it was enacted in pursuance of s51(xxxviii) of the Constitution, the Parliaments of all the States having requested the Parliament of the Commonwealth to enact the statute. S51(xxxviii) empowers the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:

"[t]he exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia".

The Australia Act was enacted before s51(xxxviii) had been construed in Port MacDonnell Professional Fishermen's Assn Inc v South Australia ^[72] . Apparently out of a perceived need for abundant caution, legislation of the Westminster Parliament was sought and passed as the 1986 UK Act ^[73] .

[62] The effect of s51(xxxviii) is to empower the Parliament "to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies" ^[74] . It represents an actual enhancement of the legislative powers of the States because "it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament" ^[75] . There is a potential enhancement of State legislative powers because the Parliaments of the States are the potential recipients of legislative power under a law made pursuant to the paragraph ^[76] . Any room for an inhibition against giving to the grant in s51(xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies ^[77] .

[63] s1 of the Australia Act does not purport to exclude, as a matter of the law of the United Kingdom, the effect of statutes thereafter enacted at Westminster. Rather, it denies their efficacy as part of the law of the Commonwealth, the States and the Territories. S51(xxxviii) extends to the actual execution within this country of a power of the sort described in that paragraph. The scope of the phrase "within the Commonwealth" in s51(xxxviii) includes the exercise of legislative power with effect upon the political structures with authority over the geographical area of the Commonwealth, the States and the Territories and the areas provided for in the Seas and Submerged Lands Act 1973 (Cth) ^[78] . It follows that s1 of the Australia Act was validly enacted under that paragraph.

[64] The expression in s1 of the 1986 UK Act "[n]o Act of the Parliament of the United Kingdom passed ... Shall extend, or be deemed to extend" was used in s4 of the Statute of Westminster 1931 (UK) ^[79] . Provisions such as s1 may present doctrinal questions for the constitutional law of the United Kingdom, in particular for the dogma associated with Dicey's views as to the sovereignty of the Parliament at Westminster. Professor Sir William Wade pointed out more than 40 years ago ^[80] that Dicey never explained how he reconciled his assertions that Westminster could destroy or transfer sovereignty ^[81] and the proposition that it could not bind future Parliaments. The effect in the United Kingdom of any amendment or repeal by the United Kingdom Parliament of s1 would be for those adjudicating upon the constitutional law of that country. But whatever effect the courts of the United Kingdom may give to an amendment or repeal of the 1986 UK Act, Australian courts would be obliged to give their obedience to s1 of the statute passed by the Parliament of the Commonwealth.

[65] It follows that, at least since 1986 with respect to the exercise of legislative power, the United Kingdom is to be classified as a foreign power.

Judicial power

[66] The Australia Act also provided, in s11, for the termination of appeals from or in respect of any decision of an Australian court brought to the Privy Council, whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise. When this legislation is taken with the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth), the result is to leave only that avenue for appeal to the Privy Council which is identified in s74 of the Constitution. With a certificate from this Court, s74 permits appeals from a decision of this Court upon any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States. The last in a series of unsuccessful applications for certificates appears to have been made in 1985 ^[82] . In refusing the certificate sought in Kirmani v Captain Cook Cruises Pty Ltd [No 2], the Court said in its joint judgment ^[83] :

"Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected - to say nothing of national sentiment - have made the jurisdiction obsolete."

In any event, before that date, it had become settled doctrine that the Privy Council was part of the judicial system of the country whence appeals came and that it was not an institution of the United Kingdom ^[84] . It follows that no institutions of government of the United Kingdom exercise any judicial powers with respect to this country.

The Crown and the executive power

[67] The submissions for Mrs Hill concentrated upon the consequences of the incorporation in the Constitution of principles both of constitutional monarchy and of federalism, a system of government first devised in the United States. In particular, attention was drawn to the vesting of the executive power of the Commonwealth by s61 in the Queen and the inclusion of the Queen, with the Senate and the House of Representatives, as constituting the Parliament of the Commonwealth in which the legislative power of the Commonwealth is vested by s1. Reference also was made to covering cl2 of the Constitution. This, as indicated above, identifies the provisions of the Constitution Act, including the Constitution set out in covering cl9 thereof, which refer to the Queen, as extending "to Her Majesty's heirs and successors in the sovereignty of the United Kingdom".

[68] The expression "the Queen" also is used in covering cl5 and in the Constitution in s2-s4, s44, s58-s60, s64, s66, s68, s74, s117, s122, s126 and s128, together with the Schedule. S42 of the Constitution obliges every Senator and every Member of the House before taking his or her seat to make and subscribe an oath or affirmation of allegiance in the form set out in that Schedule. The Schedule requires an oath or affirmation that the Senator or Member will be faithful and bear true allegiance to the person identified in the Schedule by "[t]he name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being ...".

[69] Given these provisions, it is submitted that the United Kingdom cannot answer the description of "a foreign power" in s44(i) so as to render a citizen of the United Kingdom incapable of being chosen as a Senator or Member of the House.

[70] The sovereign, being a constitutional monarch, acts, as the term indicates, in accordance with the limitations developed over time as part of what is identified as the British Constitution. In Australia, this involves, save in limited matters of personal choice ^[85] and in the exceptional circumstances associated with the contentious question of "reserved powers" (a subject which it is not necessary here to discuss), the sovereign acting upon the advice of Ministers, in particular the Prime Minister or Premier.

[71] Advice in relation to the exercise of all the regal powers and functions "in respect of a State shall be tendered by the Premier of the State". S7(5) of the Australia Act so provides. The effect of s10 thereof is that, since 1986, Her Majesty's Government in the United Kingdom has had no responsibility for the government of any State.

[72] That was not always so. Attempts in the 1890s to include, in what became the Constitution, a requirement that all references and communications between a State Governor and the Queen, or from the Queen to a State Governor, be through the Governor-General failed ^[86] . Until 1986, the monarch took advice from the United Kingdom Government on such matters as the appointment of State Governors or the making of orders or proclamations under Imperial legislation relating to the States ^[87] . Further, s1 of the Australian States Constitution Act 1907 (Imp) ("the States Constitution Act") required a reservation, for the signification of the sovereign's pleasure thereon, that is to say on advice of British Ministers, of certain Bills passed by the legislature of any State, and without prejudice to the reservation of Bills in accordance with instructions given to the Governor of the State. This statute may well have been impliedly repealed by s8 and s9 of the 1986 UK Act ^[88] , as well as by the general provision in s10 that the United Kingdom Government was to have no further responsibility for the government of any State. In any event, the States Constitution Act, in so far as it remained effective as a law of the United Kingdom, was repealed by the Statute Law (Repeals) Act 1989 (UK) ^[89] .

[73] The constitution of each State, as it stood at the establishment of the Commonwealth, continues until altered in accordance with that constitution. The Constitution so provides in s106. This state of affairs is, in the terms of s106 itself, "subject to this Constitution", and thus to the exercise of power under s51(xxxviii) to enact the provisions of the Australia Act to which we have referred ^[90] .

[74] We turn now to the position of the Crown in relation to the government of the Commonwealth. S2 of the Constitution states:

"A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution , such powers and functions of the Queen as Her Majesty may be pleased to assign to him." (emphasis added)

It has been accepted, at least since the time of the appointment of Sir Isaac Isaacs in 1931, that in making the appointment of a Governor-General the monarch acts on the advice of the Australian Prime Minister ^[91] . The same is true of the exercise of the power vested by s4 of the Constitution in the monarch to appoint a person to administer the government of the Commonwealth and the power given to the monarch by s126 to authorise the Governor-General to appoint deputies within any part of the Commonwealth.

[75] S58 makes provision for the Governor-General to reserve a "proposed law passed by both Houses of the Parliament" for the Queen's pleasure, in which event the law shall not have any force unless and until, in the manner prescribed by s60, the Governor-General makes known the receipt of the Queen's assent. Further, s59 provides for disallowance by the Queen of any law within one year of the Governor-General's assent. The text of the Constitution is silent as to the identity of the Ministers upon whose advice the monarch is to act in these respects.

[76] As indicated when dealing earlier in these reasons with the former position of the States, provisions in colonial constitutional arrangements for reservation and disallowance had been designed to ensure surveillance of colonial legislatures by the Imperial Government. The convention in 1900 was that the monarch, in relation to such matters, would act on the advice of a British Minister. That advice frequently was given after consultation between the Colonial Office and the Ministry in the colony in question ^[92] . With respect to the Commonwealth, the whole convention, like that respecting the appointment of Governors-General, changed after the Imperial Conference of 1926 ^[93] .

[77] As early as 1929, it was stated in the Report of the Royal Commission on the Constitution ^[94] with reference to the provisions of s58 and s59 of the Constitution that "in virtue of the equality of status which, from a constitutional as distinct from a legal point of view, now exists between Great Britain and the self-governing Dominions as members of the British Commonwealth of Nations, and on the principles which are set out in the Report submitted by the Inter-Imperial Relations Committee to the Imperial Conference in 1926", for "British Ministers to tender advice to the Crown against the views of Australian Ministers in any matter appertaining to the affairs of the Commonwealth" would "not be in accordance with constitutional practice".

[78] Whilst the text of the Constitution has not changed, its operation has. This reflects the changed identity of those upon whose advice the sovereign accepts that he or she is bound to act in Australian matters by reason, among other things, of the attitude taken since 1926 by the sovereign's advisers in the United Kingdom. The Constitution speaks to the present and its interpretation takes account of and moves with these developments. Hence the statement by Gibbs J in Southern Centre of Theosophy Inc v South Australia ^[95] , with reference to the Royal Style and Titles Act 1973 (Cth), that:

"[i]t is right to say that this alteration in Her Majesty's style and titles was a formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia".

[79] It remains to consider the provision in s122 of the Constitution whereby the Parliament may make laws, among other things, "for the government of any territory ... placed by the Queen under the authority of and accepted by the Commonwealth". The requirement of acceptance by the Commonwealth and, earlier in s122, the reference to the surrender of territory by a State and the acceptance thereof by the Commonwealth serve to confirm the placement "by the Queen" of a territory under the authority of the Commonwealth as being a dispositive act by the Crown acting on other than Australian advice.

[80] For example, what had been the Crown Colony of British New Guinea was by Imperial instruments placed under the authority of the Commonwealth after the Senate and the House had passed resolutions authorising the acceptance of British New Guinea as a territory of the Commonwealth ^[96] . The procedures adopted for the acquisition of Christmas Island and the Cocos (Keeling) Islands reflected the Statute of Westminster Adoption Act 1942 (Cth). They involved, as a first step, the passage of the Christmas Island (Request and Consent) Act 1957 (Cth) and the Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth). The Parliament of the Commonwealth thereby requested and consented to an enactment by the Parliament of the United Kingdom enabling the Queen to place the respective islands under the authority of the Commonwealth. There followed the passage of the Cocos Islands Act 1955 (UK) and the Christmas Island Act 1958 (UK) ^[97] .

[81] The point is that the reference to "the Queen" in s122 to distinguish the sovereign from "the Commonwealth" indicates within the structure of the Constitution itself a recognition of the involvement of the Crown in distinct bodies politic.

[82] Nevertheless, it is submitted for Mrs Hill that the reference in the preamble to the Constitution Act to unification "in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established" and the identification in covering cl2 to the heirs and successors of Queen Victoria in the sovereignty of the United Kingdom have a special and immutable significance for the construction of s44(i) of the Constitution. This is said to be so notwithstanding, as we have indicated, that in the regal capacities for which provision is made by the constitutions of the Commonwealth and the States, the sovereign acts on Australian ministerial advice.

The meaning of "the Crown" in constitutional theory

[83] Accordingly, it is necessary to say a little as to the senses in which the expression "the Crown" is used in constitutional theory derived from the United Kingdom. In its oldest and most specific meaning, "the Crown" is part of the regalia which is "necessary to support the splendour and dignity of the Sovereign for the time being", is not devisable and descends from one sovereign to the next ^[98] . The writings of constitutional lawyers at the time show that it was well understood in 1900, at the time of the adoption of the Constitution, that the term "the Crown" was used in several metaphorical senses. "We all know", Lord Penzance had said in 1876, "that the Crown is an abstraction" ^[99] , and Maitland, Harrison Moore, Inglis Clark and Pitt Cobbett, amongst many distinguished constitutional lawyers, took up the point.

[84] The first use of the expression "the Crown" was to identify the body politic. Writing in 1903, Professor Pitt Cobbett ^[100] identified this as involving a "defective conception" which was "the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead". The Constitution, in identifying the new body politic which it established, did not use the term "the Crown" in this way. After considering earlier usages of the term in England and in the former American colonies, Maitland rejoiced in the return of the term "the Commonwealth" to the statute book. He wrote in 1901 ^[101] :

"There is no cause for despair when 'the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland'. We may miss the old words that were used of Connecticut and Rhode Island: 'one body corporate and politic in fact and name'; but 'united in a Federal Commonwealth under the name of the Commonwealth of Australia' seems amply to fill their place. And a body politic may be a member of another body politic."

[85] The second usage of "the Crown" is related to the first and identifies that office, the holder of which for the time being is the incarnation of the international personality of a body politic, by whom and to whom diplomatic representatives are accredited and by whom and with whom treaties are concluded. The Commonwealth of Australia, as such, had assumed international personality at some date well before the enactment of the Australia Act. Differing views have been expressed as to the identification of that date ^[102] but nothing turns upon the question for present purposes. Since 1987, the Executive branch of the Australian Government has applied s61 of the Constitution (which extends to the maintenance of the Constitution) consistently with the views of Inglis Clark expressed over 80 years before ^[103] and the Governor-General has exercised the prerogative powers of the Queen in regard to the appointment and acceptance, or recall, of diplomatic representatives and the execution of all instruments relating thereto ^[104] .

[86] In State Authorities Superannuation Board v Commissioner of State Taxation (WA), McHugh and Gummow JJ said ^[105] :

"Questions of foreign state immunity and of whether an Australian law, upon its true construction, purports to bind a foreign state now should be approached no differently as regards those foreign states which share the same head of state than it is for those foreign states which do not ^[106] . This is consistent with the reasoning and outcome in Nolan v Minister for Immigration and Ethnic Affairs ^[107] ."

[87] Thirdly, the term "the Crown" identifies what Lord Penzance in Dixon called "the Government" ^[108] , being the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business. As has been indicated, under the Constitution the executive functions bestowed upon "the Queen" are exercised upon Australian advice.

[88] The fourth use of the term "the Crown" arose during the course of colonial development in the nineteenth century. It identified the paramount powers of the United Kingdom, the parent state, in relation to its dependencies. At the time of the establishment of the Commonwealth, the matter was explained as follows by Professor Pitt Cobbett in a passage which, given the arguments presented in the present matters, merits full repetition ^[109] :

"In England the prerogative powers of the Crown were at one time personal powers of the Sovereign; and it was only by slow degrees that they were converted to the use of the real executive body, and so brought under control of Parliament. In Australia, however, these powers were never personal powers of the King; they were even imported at a time when they had already to a great extent passed out of the hands of the King; and yet they loom here larger than in the country of their origin. The explanation would seem to be that, in the scheme of colonial government, the powers of the Crown and the Prerogative really represent, - not any personal powers on the part of the Sovereign, - but those paramount powers which would naturally belong to a parent State in relation to the government of its dependencies; although owing to the failure of the common law to recognise the personality of the British 'State' these powers had to be asserted in the name and through the medium of the Crown. This, too, may serve to explain the distinction, subsequently referred to, between the 'general' prerogative of the Crown, which is still wielded by Ministers who represent the British State, and who are responsible to the British Parliament, - and what we may call the 'colonial' prerogative of the Crown, which, although consisting originally of powers reserved to the parent State, has with the evolution of responsible government, been gradually converted to the use of the local executive, and so brought under the control of the local Legislature, except on some few points where the Governor ^[110] is still required to act not as a local constitutional Sovereign but as an imperial officer and subject to an immediate responsibility to his imperial masters. ^[111] "

[89] What Isaacs J called the "Home Government" ceased before 1850 to contribute to the expenses of the colonial government of New South Wales ^[112] . On the grant of responsible government, certain prerogatives of the Crown in the colony, even those of a proprietary nature, became vested "in the Crown in right of the colony", as Jacobs J put it in New South Wales v The Commonwealth ^[113] . Debts might be payable to the exchequer of one government but not to that of another and questions of disputed priority could arise ^[114] . Harrison Moore, writing in 1904, observed ^[115] :

"So far as concerns the public debts of the several parts of the King's dominions, they are incurred in a manner which indicates the revenues out of which alone they are payable, generally the Consolidated Revenue of the borrowing government; and the several Colonial Statutes dealing with suits against the government generally limit the jurisdiction of the Court to 'claims against the Colonial Government,' or to such claims as are payable out of the revenue of the colony concerned ..."

s105 of the Constitution provided for the Parliament to take over from the States their public debts "as existing at the establishment of the Commonwealth" ^[116] .

[90] The expression "the Crown in right of ..." the government in question was used to identify these newly created and evolving political units ^[117] . With the formation of federations in Canada and Australia it became more difficult to continue to press "the Crown" into service to describe complex political structures. Harrison Moore identified "the doctrine of unity and indivisibility of the Crown" as something "not persisted in to the extent of ignoring that the several parts of the Empire are distinct entities" ^[118] . He pointed to the "inconvenience and mischief" which would follow from rigid adherence to any such doctrine where there were federal structures and continued ^[119] :

"The Constitutions themselves speak plainly enough on the subject. Both the British North America Act and the Commonwealth of Australia Constitution Act recognize that 'Canada' and the 'Provinces' in the first case, the 'Commonwealth' and the 'States' in the second, are capable of the ownership of property, of enjoying rights and incurring obligations, of suing and being sued; and this not merely as between the government and private persons, but by each government as distinguished from and as against the other - this in fact is the phase of their personality with which the Constitutions are principally concerned. Parliament has unquestionably treated these entities as distinct persons, and it is only by going behind the Constitution that any confusion of personalities arises."

[91] It may be thought that in this passage lies the seed of the doctrine later propounded by Dixon J in Bank of New South Wales v The Commonwealth ^[120] , and applied in authorities including Crouch v Commissioner for Railways (Q) ^[121] and Deputy Commissioner of Taxation v State Bank (NSW) ^[122] , that the Constitution treats the Commonwealth and the States as organisations or institutions of government possessing distinct individuality. Whilst formally they may not be juristic persons, they are conceived as politically organised bodies having mutual legal relations and are amenable to the jurisdiction of courts exercising federal jurisdiction. The employment of the term "the Crown" to describe the relationships inter se between the United Kingdom, the Commonwealth and the States was described by Latham CJ in 1944 ^[123] as involving "verbally impressive mysticism". It is of no assistance in determining today whether, for the purposes of the present litigation, the United Kingdom is a "foreign power" within the meaning of s44(i) of the Constitution.

[92] Nearly a century ago, Harrison Moore said that it was likely that Australian draftsmen would be likely to avoid use of the term "Crown" and use instead the terms "Commonwealth" and "State" ^[124] . Such optimism has proved misplaced. That difficulties can arise from continued use of the term "the Crown" in State legislation is illustrated by The Commonwealth v Western Australia ^[125] . However, no such difficulties need arise in the construction of the Constitution.

[93] The phrases "under the Crown" in the preamble to the Constitution Act and "heirs and successors in the sovereignty of the United Kingdom" in covering cl2 involve the use of the expression "the Crown" and cognate terms in what is the fifth sense. This identifies the term "the Queen" used in the provisions of the Constitution itself, to which we have referred, as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom. The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

[94] There is no precise analogy between this state of affairs and the earlier development of the law respecting the monarchy in England, Scotland and Great Britain. It has been suggested ^[126] :

"The Queen as monarch of the United Kingdom, Canada, Australia and New Zealand is in a position resembling that of the King of Scotland and of England between 1603 and 1707 when two independent countries had a common sovereign."

But it was established that a person born in Scotland after the accession of King James I to the English throne in 1603 was not an alien and thus was not disqualified from holding lands in England. That was the outcome of Calvin's Case ^[127] . Nor does the relationship between Britain and Hanover between 1714 and 1837 present a precise analogy, if only because there was lacking the link of a common law of succession ^[128] .

IV CONCLUSIONS

[95] Almost a century has passed since the enactment of the Constitution Act in the last year of the reign of Queen Victoria. In 1922, the Lord Chancellor ^[129] observed that doctrines respecting the Crown often represented the results of a constitutional struggle in past centuries, rather than statements of a legal doctrine. The state of affairs identified in Section III of these reasons is to the contrary. It is, as Gibbs J put it ^[130] , "the result of an orderly development - not ... the result of a revolution". Further, the development culminating in the enactment of the Australia Act (the operation of which commenced on 3 March 1986 ^[131] ) has followed paths understood by constitutional scholars writing at the time of the establishment of the Commonwealth.

[96] The point of immediate significance is that the circumstance that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s44(i) of the Constitution. Australia and the United Kingdom have their own laws as to nationality ^[132] so that their citizens owe different allegiances. The United Kingdom has a distinct legal personality and its exercises of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome ^[133] , themselves have no legal consequences for this country. Nor, as we have sought to demonstrate in sIII, does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States.

[97] As indicated earlier in these reasons, we would give an affirmative answer to the question in each stated case which asks whether Mrs Hill, at the date of her nomination, was a subject or citizen of a foreign power within the meaning of s44(i) of the Constitution.