Sue v Hill; Sharples v Hill
199 CLR 462[1999] HCA 30
(Decision by: Callinan J)
Sue; Sharples v
Hill
Judges:
Gleeson CJ, Gummow, Hayne
Gaudron
McHugh
Kirby
Callinan JJ
Judgment date: 23 June 1999
Decision by:
Callinan J
[287] I agree with McHugh J that, given the structure of the Commonwealth Electoral Act 1918 (Cth), the specific reference to bribery, corrupt practices, undue influence and illegal practices, the omission of any reference in Div 1 to the constitutional qualification of a member (except the special case of a s15 appointment) and the enactment of Div 2 which deals exclusively with the qualification of members, the best interpretation of the Commonwealth Electoral Act is that a petition on the bare ground of an allegation of a breach of s44 of the Constitution is not within the jurisdiction of the Court of Disputed Returns.
[288] There is only one other matter to which I wish to refer.
[289] The petitioners (and the Commonwealth which supports them) acknowledge that at the time of Federation the United Kingdom was unquestionably not a foreign power. One of their primary arguments on the central question whether the United Kingdom is a foreign power is that, as time has passed, circumstances have changed, and the United Kingdom, by a process of evolution has now become a power foreign to Australia (the "evolutionary theory"). It is upon that argument that I wish to comment.
[290] The evolutionary theory is, with respect, a theory to be regarded with great caution. In propounding it, neither the petitioners nor the Commonwealth identify a date upon which the evolution became complete, in the sense that, as and from it, the United Kingdom was a foreign power. Nor could they point to any statute, historical occurrence or event which necessarily concluded the process. There were, they asserted, a series of milestones, for example, Federation itself, the Statute of Westminster Adoption Act 1942 (Cth), the Royal Style and Titles Act 1973 (Cth) and the Australia Acts [386] but neither the last of these nor any other enactment was said to be the destination marker of the evolution.
[291] The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete, and here, as the petitioners and the Commonwealth accept, has been complete for some unascertained and unascertainable time in the past. In reality, a decision of this Court upon that basis would change the law by holding that, notwithstanding that the Constitution did not treat the United Kingdom as a foreign power at Federation and for some time thereafter, it may and should do so now.
[292] There was no evidence before the Court as to the consequences of the renunciation of British citizenship; whether, for example, entitlements to United Kingdom pensions or social services might be adversely affected; or whether any rights of children of a person renouncing citizenship to seek employment in the United Kingdom or Europe might be affected. However, plainly a person who renounces United Kingdom citizenship will be forgoing a right to hold a United Kingdom passport which confers at least some advantages in travel to the United Kingdom and in Europe. Any person should be entitled to know at what point in time the United Kingdom has come to be, if it is to be so regarded, a foreign power, so that that person may make an informed choice or election, to enjoy whatever benefits (including to stand for election to an Australian Parliament) renunciation of United Kingdom citizenship may confer, in exchange for the forgoing of such benefits as United Kingdom citizenship may bestow. The operation of an evolutionary theory in this context would deny a person such as the first respondent the opportunity of making an informed choice or election until such time as this Court or, if appropriate, Parliament, determine that the evolution is complete.
[293] The Court was not taken to any statutes in which the term "foreign power" is used. However there are statutes which do use that term and whose application might perhaps be different if this Court were to hold that the United Kingdom is a foreign power. One such statute is the Australian Security Intelligence Organization Act 1979 (Cth). S4 of that Act defines "foreign power" to mean a foreign government, an entity directed or controlled by a foreign government or a foreign political organization. S4 also defines "acts of foreign interference" to mean activities carried on by a "foreign power" that are "clandestine or deceptive", "carried on for intelligence purposes", "carried on for the purpose of affecting political or governmental processes", "otherwise detrimental to the interests of Australia" or "involve a threat to any person". S4 also defines "security" to include the protection of the people of Australia from, inter alia, "acts of foreign interference".
[294] A number of sections of the Australian Security Intelligence Organization Act define the powers and obligations of ASIO officers in terms of "security". One of the primary functions of ASIO is to provide "security assessments" to government agencies. Such assessments are statements by ASIO to the relevant organization whether it is consistent with "security" to take prescribed administrative action against a particular person (see PtIV of the Australian Security Intelligence Organization Act). Hence, the meaning of "foreign power" could well affect, for example, employment opportunities of people in the same position as the first respondent. Whilst the meaning of "foreign power" for the purposes of this, or indeed any other Act will ultimately depend upon the language of those Acts and the context in which the expression is used, the constitutional meaning of the same term could have a bearing upon its statutory meaning, particularly in a statute dealing with matters of national security.
[295] Another Act which uses the term "foreign power" is the Crimes Act 1914 (Cth). S78 of that Act makes it an indictable offence to make, obtain or possess any kind of document or article that could be useful to "an enemy or a foreign power". The penalty for this offence is seven years imprisonment. S80(c) of the same Act makes a place that would be useful to "an enemy or to a foreign power" a "prohibited place" for the purposes of the Crimes Act. "Foreign power" is not defined in this Act.
[296] The potential reach of s78 of the Crimes Act is very great. It is conceivable that until a decision of this Court that the United Kingdom is a foreign power, (assuming the expression should have the same meaning in the Crimes Act) people might unknowingly have been infringing that section for an indeterminate period of time.
[297] I would therefore be inclined to hold that the evolutionary theory which has been advanced in this case, having as it does the defect of uncertainty as to events and conclusion, should not be accepted or applied here. However on neither that nor the other arguments relied on by the parties and the Commonwealth is it necessary for me to express any concluded opinion in view of my agreement with McHugh J on the issue of jurisdiction.
[298] The following are the questions and the answers which I would give to them:
- (a)
- Does s354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition? No.
- (b)
- Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s44(i) of the Constitution? Inappropriate to answer.
- (c)
- Was the first respondent duly elected at the Election? Inappropriate to answer.
- (d)
- If no to (c), was the Election void absolutely? Does not arise.
- (e)
- If no to (d), should the second respondent conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned? Does not arise.
- (f)
- Save for those otherwise dealt with by order, who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court? The Commonwealth should pay the petitioners' and the first respondent's costs.
In re Webster (1975) 132 CLR 270 at 279.
McGinty v Western Australia (1996) 186 CLR 140 at 281.
Smith v Oldham (1912) 15 CLR 355 at 358-359, 360-361, 362-365; McKenzie v The Commonwealth (1984) 59 ALJR 190 at 191; 57 ALR 747 at 749; Langer v The Commonwealth (1996) 186 CLR 302 at 348-349.
(1993) 177 CLR 627.
(1993) 177 CLR 627 at 631.
(1904) 1 CLR 39.
The Flinders Election Petition, Forde v Lonergan [1958] Qd R 324 at 331.
S3 of the 1868 statute defined "Corrupt Practices" or "Corrupt Practice" as meaning:
"Bribery, Treating, and undue Influence, or any of such Offences, as defined by Act of Parliament, or recognized by the Common Law of Parliament".
R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 260-261, 277-278.
The text of s3(1) is set out in fn 149 in the judgment of Gaudron J. Examples of United Kingdom statutes, enacted before the 1868 Act, which provided for similar judicial proceedings in respect of members of Parliament, are collected in Bradlaugh v Clarke (1883) 8 App Cas 354 at 363-368.
at 255.
Orme identified the Commons' resolutions of 10 March 1623 and 18 February 1625.
at 278.
For example, by s1 of 9 Anne c 5 (1711).
Royse v Birley (1869) LR 4 CP 296; County of Tipperary (1875) 3 O'M & H 19; Rogers on Elections, 16th ed (1892), PtII at 226.
See Schoff, "The Electoral Jurisdiction of the High Court as the Court of Disputed Returns", (1997) 25 Federal Law Review 317 at 326-328.
McGinty v Western Australia (1996) 186 CLR 140 at 271.
Australia, Senate, Parliamentary Debates (Hansard), 31 January 1902 at 9529. Senator O'Connor was the third of the first appointments made to this Court on 5 October 1903.
Subs(1) and subs(2) of s193 stated:
"(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Supreme Court of the State in which the election was held or return made.
(2) When a petition has been so referred for trial to the Supreme Court of a State, that Court shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns."
Australia, Senate, Parliamentary Debates (Hansard), 13 March 1902 at 10950.
Australia, Senate, Parliamentary Debates (Hansard), 14 March 1902 at 10953.
Australia, House of Representatives, Parliamentary Debates (Hansard), 5 June 1902 at 13359-13360.
(1907) 4 (Pt2) CLR 1463.
(1907) 5 CLR 201.
The provision in Div 2 for references had some counterpart in the United Kingdom. This is shown by In re Samuel [1913] AC 514. The Privy Council, upon a reference under s4 of the Judicial Committee Act 1833 (UK) made at the instance of a Select Committee of the House of Commons, considered whether, by reason of his interest in Crown contracts, a member was disabled from sitting and voting in the House. However, s4 had no operation with respect to "matters" falling within Ch III of the Constitution: The Commonwealth v Queensland (1975) 134 CLR 298 at 314-315, 328.
(1992) 66 ALJR 577 at 578; 107 ALR 577 at 579.
See Western Australia v The Commonwealth (1975) 134 CLR 201 at 271, 275; Queensland v The Commonwealth (1977) 139 CLR 585 at 604-605; Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 743; 152 ALR 540 at 569.
(1906) 4 (Pt1) CLR 297.
(1906) 4 (Pt1) CLR 297 at 310.
(1985) 59 ALJR 64 at 66.
(1906) 4 (Pt1) CLR 297 at 309.
(1906) 4 (Pt1) CLR 297 at 305-306.
Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360-361; Grollo v Palmer (1995) 184 CLR 348 at 388-389.
(1926) 38 CLR 153 at 178.
(1926) 38 CLR 153 at 179.
(1993) 177 CLR 627.
(1906) 4 (Pt1) CLR 297 at 309.
(1955) 92 CLR 157. This litigation occurred before the enactment of the Parliamentary Privileges Act 1987 (Cth). However, s5 thereof states:
"Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under s49 of the Constitution immediately before the commencement of this Act, continue in force."
(1955) 92 CLR 157 at 167.
(1955) 92 CLR 157.
(1926) 38 CLR 153 at 178-179.
(1992) 176 CLR 77.
(1957) 99 CLR 155 at 166. See also Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 216-217; Carson v John Fairfax & Sons Ltd (1991) 173 CLR 203 at 216; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 651.
British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 at 438-441; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 36, 46, 47.
(1960) 103 CLR 368.
(1960) 103 CLR 368 at 383.
(1976) 135 CLR 194 at 215-216.
(1972) 127 CLR 588.
cf Sykes v Cleary [No 2] (1992) 176 CLR 77 at 112-114, 135-136.
As to which see Hart, The Concept of Law, (1961) at 218 in which the author urges caution in any uncritical use of the idea of sovereignty.
(1969) 122 CLR 177 at 224.
(1969) 122 CLR 177 at 223.
(1969) 122 CLR 177 at 223.
A point made by McLelland J in McM v C [1980] 1 NSWLR 27 at 44.
(1969) 122 CLR 177 at 223.
Baxter v Commissioner of Taxation (NSW) (1907) 4 (Pt2) CLR 1087 at 1105. Inglis Clark wrote to similar effect in Studies in Australian Constitutional Law, (1901) at 19-22.
Martin v Hunter's Lessee 1 Wheat 304 at 326 [14 US 141 at 151] (1816).
Final Report of the Constitutional Commission, (1988), vol 1, para2.130.
63 & 64 Vict, c 12 (Imp).
[1967] 1 AC 691 at 712.
[1967] 1 AC 691 at 716.
[1967] 1 AC 691 at 716.
[1967] 1 AC 691 at 716.
See as to the status of Northern Ireland, Ex parte Molyneaux [1986] 1 WLR 331.
[1982] QB 892. A petition to appeal against the decision of the Court of Appeal was refused by the House of Lords on the ground that the principal argument sought to be advanced by the applicant was "simply ... not arguable": [1982] QB 892 at 937.
[1982] QB 892 at 928.
[1982] QB 892 at 920-921.
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184.
(1975) 135 CLR 337 at 372-374, 469-470, 498.
(1985) 159 CLR 351 at 373-379, 398-419, 420-424, 433-434.
(1988) 165 CLR 178 at 183-186, 191-192.
(1989) 168 CLR 340.
See Zines, Constitutional Change and the Commonwealth, (1989) at 20-21.
Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 378.
Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 379.
Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 379.
Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 378.
See New South Wales v The Commonwealth (1975) 135 CLR 337; cf Oteri v The Queen [1976] 1 WLR 1272 at 1275-1276.
This stated:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."
Wade, "The Basis of Legal Sovereignty", [1955] Cambridge Law Journal 172 at 196.
A matter noted by Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 603-604.
Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461.
(1985) 159 CLR 461 at 465.
Ibralebbe v The Queen [1964] AC 900 at 921-922; Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 at 258-259.
Markesinis, "The Royal Prerogative Re-visited", [1973] Cambridge Law Journal 287 at 289-292.
Harrison Moore, The Constitution of the Commonwealth of Australia, (1902) at 287-288.
Zines, Constitutional Change and the Commonwealth, (1989) at 10.
S8 and s9 stated:
"8 An Act of the Parliament of a State that has been assented to by the Governor of the State shall not, after the commencement of this Act, be subject to disallowance by Her Majesty, nor shall its operation be suspended pending the signification of Her Majesty's pleasure thereon.
9 (1) No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State.
(2) No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty's pleasure thereon."
S1(1), Sched 1, PtVI.
No question arises with respect to the manner and form, or entrenchment, provision in s15 of the Australia Act: see Zines, The High Court and the Constitution, 4th ed (1997) at 312.
Cunneen, King's Men - Australia's Governors-General from Hopetoun to Isaacs, (1983) at 173-182.
Inglis Clark, Studies in Australian Constitutional Law, (1901) at 323.
Final Report of the Constitutional Commission, (1988), vol 1, para2, 122-2.123.
at 70.
(1979) 145 CLR 246 at 261.
Strachan v The Commonwealth (1906) 4 (Pt1) CLR 455 at 461-463, 464-465. See also the recitals to the Papua Act 1905 (Cth).
See the recitals to the Christmas Island Act 1958 (Cth) and the Cocos (Keeling) Islands Act 1955 (Cth).
Chitty, Prerogatives of the Crown, (1820), Ch XI, SIII.
Dixon v London Small Arms Company (1876) 1 App Cas 632 at 652.
"'The Crown' as Representing 'the State'", (1903) 1 Commonwealth Law Review 23 at 30. See also Hogg, Liability of the Crown, 2nd ed (1989) at 9-13; Law Reform Commission of Canada, The Legal Status of the Federal Administration, Working Paper 40, (1985) at 24-28.
"The Crown as Corporation", (1901) 17 Law Quarterly Review 131 at 144 (footnote omitted).
Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 477-478.
Inglis Clark, Studies in Australian Constitutional Law, (1901) at 65-66.
Instrument dated 1 December 1987, Commonwealth of Australia Gazette, S270, 9 September 1988; see Starke, "Another residual constitutional link with the United Kingdom terminated; diplomatic letters of credence now signed by Governor-General", (1989) 63 Australian Law Journal 149.
(1996) 189 CLR 253 at 289.
See, generally, Foreign States Immunities Act 1985 (Cth), ss 9-22.
(1988) 165 CLR 178 at 183-186.
(1876) 1 App Cas 632 at 651.
"The Crown as Representing the State", (1904) 1 Commonwealth Law Review 145 at 146-147.
Who, legally [represented] the King, but really [represented] the British 'State'.
As with regard to the reservation of Bills and the exercise of the power of pardon in matters affecting imperial interests.
Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 448.
(1975) 135 CLR 337 at 494.
Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 302-303.
"The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 357.
Words of limitation omitted in 1910, after a successful referendum: Constitution Alteration (State Debts) Act 1909 (Cth).
Evatt, The Royal Prerogative, (1987) at 63.
"The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 358. See also Harrison Moore, "Law and Government", (1906) 3 Commonwealth Law Review 205 at 207.
"The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 359.
(1948) 76 CLR 1 at 363.
(1985) 159 CLR 22 at 28-29, 39.
(1992) 174 CLR 219 at 230-231.
Minister for Works (WA) v Gulson (1944) 69 CLR 338 at 350-351.
"The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 362.
(1999) 73 ALJR 345 at 352-353, 359, 364-368, 387-390; 160 ALR 638 at 647-649, 656-657, 663-669, 695-700.
Zines, The High Court and the Constitution, 4th ed (1997) at 314.
(1606) 7 Co Rep 1a [77 ER 377]. Coke's report of the litigation was "a massive achievement of ponderous learning": Tanner, English Constitutional Conflicts in the Seventeenth Century 1603-1689, (1957) at 269.
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 192-193; In re The Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 at 59-60.
Viscount Birkenhead LC in Viscountess Rhondda's Claim [1922] 2 AC 339 at 353.
Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 at 261.
Commonwealth of Australia Gazette, S85, 2 March 1986 at 1.
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.
See European Communities Act 1972 (UK), European Communities (Amendment) Act 1986 (UK), European Communities (Amendment) Act 1993 (UK) and R v Secretary of State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85; R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Rees-Mogg [1994] QB 552; R v Employment Secretary; Ex parte Equal Opportunities Commission [1995] 1 AC 1.
In the first matter the case was stated by Gleeson CJ, in the second by Callinan J.
In 1960, s4 of the British Nationality Act 1948 (UK) provided, subject to exceptions which are not presently relevant, that: "... every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth".
S11(1) provides:
" Subject to subs(2), a person who immediately before commencement -
(a) was a citizen of the United Kingdom and Colonies; and
(b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen."
By s2(1)(a) of the Immigration Act 1971 (UK) a citizen of the United Kingdom and Colonies whose birth was registered in the United Kingdom has the right of abode in the United Kingdom.
Presumably, both are Australian citizens by force of s10(2) of the Australian Citizenship Act 1948 (Cth). Subject to exceptions which do not appear to be material, that section provides that:
"... a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if: (a) a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident".
Compare the position of Mr Kardamitsis, considered in Sykes v Cleary (No 2) (1992) 176 CLR 77 at 128 per Deane J, 133 per Gaudron J. On becoming an Australian citizen in 1975, he was required by the Australian Citizenship Act as it then stood to formally renounce all other allegiance.
Compare the position of Mr Delacretaz, also considered in Sykes v Cleary (No 2) (1992) 176 CLR 77 at 103 per Mason CJ, Toohey and McHugh JJ, 139-140 per Gaudron J. On becoming an Australian citizen in 1960, he renounced all other allegiance although this was not required by the Australian Citizenship Act as it then stood.
(1992) 66 ALJR 577 at 578; 107 ALR 577 at 579.
(1992) 66 ALJR 577; 107 ALR 577.
(1988) 167 CLR 145 at 160.
See Rogers on Elections, 16th ed (1892), vol 2 at 223; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 496; May, The Law, Privileges, Proceedings and Usage of Parliament (May's Parliamentary Practice) 22nd ed (1997) at 35; Schoff, "The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-judicial Power and Incompatible Function?", (1997) 25 Federal Law Review 317 at 324; Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?", (1997) 20 University of New South Wales Law Journal 257 at 263.
31 & 32 Vict c 125.
S11(1). S11(2) required a rota to be formed from judges of "each of the Courts of Queen's Bench, Common Pleas and Exchequer in England and Ireland" for the purpose of hearing election petition cases.
S11(13).
See, for example, County of Tipperary (1875) 3 O'M & H 19 (disqualification on the grounds of status as an alien and conviction for treason-felony); Borough of Cheltenham (1880) 3 O'M & H 86 (disqualification on the ground of status as an alien); Western Division of the Borough of Belfast (1886) 4 O'M & H 105 (disqualification on the ground that candidate had already been elected and returned as member for another constituency).
See, for example, s2 of the Crown Pensioners Disqualification Act 1715 (1 Geo I c 56) (persons disqualified for receiving Crown pensions); s2 of the House of Commons Disqualification Act 1742 (15 Geo II c 22) (persons disqualified for holding a particular office, including the office of lord high treasurer, the commissioners of the exchequer, etc); s9 of the House of Commons (Disqualification) Act 1782 (22 Geo III c 45) (persons disqualified for having any direct or indirect pecuniary interest in any contract or agreement with the Crown); s2 of House of Commons (Clergy Disqualification) Act 1801 (41 Geo III c 63) (persons disqualified for being a member of the clergy); s2 of the House of Commons Disqualifications Act 1821 (1 & 2 Geo IV c 44) (persons disqualified for holding certain judicial offices in Ireland); s33(5) of the Corrupt and Illegal Practices Prevention Act 1883 (46 & 47 Vict c 51) (persons disqualified for failing to submit certain required declarations and returns in respect of their election expenses).
Since the commencement of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), on 23 April 1975, no suit may now be instituted under s46 of the Constitution; s4. Instead, s3(1) of that Act provides that:
"Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of:
- (a)
- $200 in respect of his having so sat on or before the day on which the originating process in the suit is served on him; and
- (b)
- $200 for every day, subsequent to that day, on which he is proved in the suit to have so sat." A suit under that Act must be brought within 12 months after the sitting of the senator or member to which the suit relates, s3(2). S5 confers original jurisdiction on the High Court in suits brought under the Act, and stipulates that no other court has jurisdiction.
R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225. See also Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 207 per Mason J (with whom Aickin J agreed); Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 223-224 per Mason J; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 127-128 per Mason J; Street v Queensland Bar Association (1989) 168 CLR 461 at 527-528 per Deane J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 695 per Gaudron J, 713 per McHugh J; Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 424.
Note also that in proceedings under the legislation referred to in fn (148) (See, for example, s2 of the Crown Pensioners Disqualification Act 1715 (1 Geo I St 2, c 56 etc) the Courts themselves determined whether the person concerned was disqualified, not merely whether he had voted when disqualified. See, for example, Thompson v Pearce (1819) 1 Brod & B 26 [129 ER 632]; Forbes v Samuel [1913] 3 KB 706; Burnett v Samuel (1913) 29 TLR 583; Bird v Samuel (1914) 30 TLR 323; Tranton v Astor (1917) 33 TLR 383.
(1993) 177 CLR 627.
(1993) 67 ALJR 781; 116 ALR 223.
(1993) 177 CLR 627 at 631 per Gaudron J.
(1993) 67 ALJR 781; 116 ALR 223.
See (1993) 67 ALJR 781 at 782; 116 ALR 223 at 225 where it was said:
"In general terms, and leaving aside the situation in which a person was prevented from voting or in which a candidate was not eligible to stand (neither of which is claimed in this case), [the requirement of s355(a) of the Act] can only be satisfied by an assertion that goes to or bears upon the casting or counting of votes."
See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian S(1953) 89 CLR 636 at 649 per Dixon CJ, Webb, Fullagar and Kitto JJ; Marriott v Coleman (1963) 109 CLR 129 at 137 per McTiernan, Menzies and Owen JJ.
Note, by s339(4) there is a defence to a prosecution under s339(3), if the person concerned proves that he or she did not know and could not reasonably have been expected to know that the statement was false or misleading.
See Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 420. See also Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission (1981) 148 CLR 121 at 130 per Mason J; Slonim v Fellows (1984) 154 CLR 505 at 513 per Wilson J; PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 310 per Brennan CJ, Gaudron and McHugh JJ; Police v Thompson [1966] NZLR 813 at 818 per North P.
(1932) 47 CLR 1.
(1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J. See also R v Wallis (1949) 78 CLR 529 at 550 per Dixon J.
See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 289 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. See also In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 586-587 per Dixon and Evatt JJ; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-607 per Deane J, 703 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ; Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J; Gould v Brown (1998) 193 CLR 346 at 385-386 per Brennan CJ and Toohey J, 400-401 per Gaudron J, 419 per McHugh J, 440 per Gummow J, 499-500 per Kirby J.
See, for example, R v Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394 per Windeyer J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497 per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532 per Mason CJ; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Leeth v The Commonwealth (1992) 174 CLR 455 at 501 per Gaudron J; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257 per Mason CJ, Brennan and Toohey JJ, 267 per Deane, Dawson, Gaudron and McHugh JJ; Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J, 273 per Hayne J; Gould v Brown (1998) 193 CLR 346 at 403 per Gaudron J.
Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J. See also Huddart, Parker & Co Proprietary Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ; Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ; R v Davison (1954) 90 CLR 353 at 369 per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666; Harris v Caladine (1991) 172 CLR 84 at 147 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497 per Gaudron J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Gould v Brown (1998) 193 CLR 346 at 404 per Gaudron J.
See Nicholas v The Queen (1998) 193 CLR 173 at 207 per Gaudron J. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; Harris v Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 502 per Gaudron J.
See R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 466 per Starke J; R v Cox; Ex parte Smith (1945) 71 CLR 1 at 23 per Dixon J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 537 per Mason CJ, 607 per Deane J. These include the power to compel the appearance of persons (Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442 per Griffith CJ), the power to determine questions of excess of legislative and executive power (Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580 per Deane J) and the power to adjudicate on existing legal rights and liabilities between persons (Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442 per Griffith CJ, 464-465 per Isaacs and Rich JJ; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580 per Deane J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 607 per Deane J).
See R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 466 per Starke J; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580 per Deane J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 607-608 per Deane J, 685 per Toohey J, 705-706 per Gaudron J; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98-99 per Toohey J, 107 per Gaudron J, 122 per McHugh J, 131-132 per Gummow J; Liyanage v The Queen [1967] 1 AC 259 at 289.
See R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 per Kitto J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.
See R v Davison (1954) 90 CLR 353 at 368-369 per Dixon CJ and McTiernan J. See also Gould v Brown (1998) 193 CLR 346 at 403 per Gaudron J.
See Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 177 per Isaacs J; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 278-279, per Dixon CJ, McTiernan, Fullagar and Kitto JJ; R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628 per Mason J, 631-632 per Murphy J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665; Harris v Caladine (1991) 172 CLR 84 at 122 per Dawson J, 147-148 per Gaudron J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.
(1981) 147 CLR 617 at 628 per Mason J referring to R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305 per Kitto J.
(1926) 38 CLR 153 at 178-179.
R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 per Kitto J.
See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268 per Deane, Dawson, Gaudron and McHugh JJ referring to Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ.
See, with respect to advisory opinions, In re Judiciary and Navigation Acts (1921) 29 CLR 257; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522; 161 ALR 399.
S381 relevantly provides that s374 applies "so far as applicable" to proceedings on a reference under PtXXII. S374 provides for the giving of effect to decisions with respect to disputed elections.
At a federal level, since the enactment of the Commonwealth Electoral Act 1902 (Cth), PtXVI of which contained provisions in substantially similar terms to Div 1 of PtXXII of the Act.
See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; Harris v Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704 per Gaudron J.
See, for example, Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J (procedures include open public inquiry and the application of the rules of natural justice) and Nicholas v The Queen (1998) 193 CLR 173 at 207-208 per Gaudron J (procedures include granting an adjournment, making procedural rulings or ruling on the admissibility of evidence).
cf the situation considered in Holmes v Angwin (1906) 4 CLR 297 where the power to determine disputed elections was conferred on a single Judge of the Supreme Court of Western Australia, but not on that Court.
S360(1)(v).
S360(1)(vi).
S360(1)(vii).
S360(1)(i), s360(1)(ii), s360(1)(iii), s360(1)(iv).
S365 provides that certain immaterial errors, relating to the pre-election process and the conduct of the poll, shall not vitiate an election if they did not affect the result of that election. S366 provides that the Court of Disputed Returns shall not invalidate an election by reason only that an error was made relating to the printing of party affiliations on the ballot papers.
See R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628 per Mason J.
See Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 210, 213. See also Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 372; Cockle v Isaksen (1957) 99 CLR 155 at 165 per Dixon CJ, McTiernan and Kitto JJ, 167-168 per Williams J, 173 per Webb J, 175 per Taylor J.
In the case of a general election or an election for the House of Representatives the writ for which was issued by the Governor-General, s369(b).
In the case of an election for the House of Representatives the writ for which was not issued by the Governor-General, s369(c).
See, for example, Huddart, Parker & Co Proprietary Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ; Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 451 per Barton J; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 176 per Isaacs J; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 198-199 per Latham CJ.
(1995) 183 CLR 245 at 269 per Deane, Dawson, Gaudron and McHugh JJ.
(1995) 183 CLR 245 at 269 per Deane, Dawson, Gaudron and McHugh JJ referring to the Local Courts (Civil Claims) Act 1970 (NSW), s58.
See Sykes v Cleary (No 2) (1992) 176 CLR 77 at 100 per Mason CJ, Toohey and McHugh JJ (with whom Brennan J at 108, Dawson J at 130 and Gaudron J at 132, agreed). See also Free v Kelly (1996) 185 CLR 296 at 301 per Brennan CJ.
See Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351 at 437 per Deane J, 458 per Dawson J; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183-184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.
Preamble to the Constitution Act.
S2 of the Constitution. See also s3 and s4 and s3 of the Constitution Act.
S58 of the Constitution.
S59 of the Constitution.
See, for example, s1(1)(a) of the British Nationality and Status of Aliens Act 1914 (UK) which provided that "[a]ny person born within His Majesty's dominions and allegiance" was deemed to be a "natural-born British subject". The Commonwealth of Australia was listed as a "dominion" in the First Schedule to that Act.
See also s117 of the Constitution, which prohibits discrimination against a "subject of the Queen, resident in any State", in any other State.
Note that it is provided in s16 of the Constitution that "[t]he qualifications of a senator shall be the same as those of a member of the House of Representatives."
See The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413 per Isaacs J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196-197 per McHugh J.
See especially s75(iii), s75(iv) and s78.
(1988) 165 CLR 178 at 186 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.
See, for example, Cheatle v The Queen (1993) 177 CLR 541 at 560-561, where the Court accepted that "jury" in the phrase "trial by jury" in s80 of the Constitution could no longer be read as excluding women and unpropertied persons; McGinty v Western Australia (1996) 186 CLR 140 at 200-201 per Toohey J, 221-222 per Gaudron J and Langer v The Commonwealth (1996) 186 CLR 302 at 342 per McHugh J, suggesting that the expression "chosen by the people" in s7 and s24 of the Constitution should be read as guaranteeing the right to vote to all adults, not only men.
(1975) 135 CLR 337 at 373.
(1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ. See also China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 195 per Gibbs J, 208-213 per Stephen J; Joosse v Australian Securities & Investment Commission (1998) 73 ALJR 232 at 235-236 per Hayne J; 159 ALR 260 at 264-265.
(1979) 145 CLR 246 at 257.
At common law, and pursuant to s1(1)(a) of the British Nationality and Status of Aliens Act 1914 (UK), any person born within the dominions (including Australia) of the Crown of the United Kingdom had the status of a "natural-born British subject". S1 of the British Nationality Act 1948 (UK) created two categories of British subject: those who were "citizen[s] of the United Kingdom and Colonies" and those who were citizens of any country mentioned in s1(3), including, relevantly, Australia. The status of British subject was, for the purposes of British law, withdrawn from Australian citizens by the British Nationality Act 1981 (UK), s11(1) of which provided that only persons who were "citizen[s] of the United Kingdom and Colonies" with a right of abode in the United Kingdom would be granted the status of "British citizen".
The Nationality and Citizenship Act 1948 (Cth) provided for the acquisition of Australian citizenship after the commencement of the Act by birth (s10), by descent (s11), by registration upon application by a person who was a citizen of certain specified Commonwealth countries, including the United Kingdom (ss 12-13), or by naturalisation (ss 14-16). It also contained transitional provisions, which provided for the acquisition of Australian citizenship by certain persons born prior to the commencement of the Act (s25).
Citizenship Act 1969 (Cth), s1(3).
Australian Citizenship Act 1973 (Cth), s1(3).
Citizenship Act 1969 (Cth), s6.
Australian Citizenship Amendment Act 1984 (Cth), ss 7-12.
S3 of the Australia Act 1986 (Cth), s3 of the Australia Act 1986 (UK).
S10 of the Australia Act 1986 (Cth), s10 of the Australia Act 1986 (UK).
S11 of the Australia Act 1986 (Cth), s11 of the Australia Act 1986 (UK).
(1992) 176 CLR 77 at 135-136 per Gaudron J referring to Oppenheimer v Cattermole [1976] AC 249 at 277-278 per Lord Cross of Chelsea, 282-283 per Lord Salmon; R v Home Secretary; Ex parte L [1945] KB 7 at 10 per Viscount Caldecote CJ (with whom Humphreys and Wrottesley JJ agreed); Lowenthal v Attorney-General [1948] 1 All ER 295 at 299 per Romer J.
See with respect to the common law of England, Oppenheimer v Cattermole [1976] AC 249 at 263-264 per Lord Hailsham of St Marylebone, 278-279 per Lord Cross of Chelsea; Kramer v Attorney-General [1923] AC 528 at 537 per Viscount Cave LC (with whom Lord Shaw of Dunfermline agreed).
The Act, however, provides for the loss of citizenship if an Australian citizen takes out foreign citizenship, s17(1).
(1992) 176 CLR 77 at 107 per Mason CJ, Toohey and McHugh JJ, 113 per Brennan J, 128 per Deane J, 131 per Dawson J, 139 per Gaudron J.
(1988) 167 CLR 145.
(1988) 167 CLR 145 at 165-166.
(1988) 167 CLR 145 at 166.
Electoral Act, s352(1).
Electoral Act, s170(1)(b)(i).
He said: (Transcript of proceedings, 13 May 1999 at 285)
"Probably, to be fair, I do not suggest at all that the respondent - and I say it publicly - did anything illegal. I do not suggest that she attempted to misrepresent deliberately, and I retract those words out of my petition but, nevertheless, her nomination form which was tendered to the Australian Electoral Commission, the Queensland electoral officer, which is in the stated case - it is p20. Clearly, she signed that and ticked the appropriate boxes and made those declarations."
(1604) 2 St Tri 91.
The basis of the King's claim was well founded. Sir William Anson (The Law and Custom of the Constitution, 4th ed (1909), vol 1 at 168) has pointed out that: "[o]riginally the writ addressed to the sheriff was returnable to Parliament: an Act of the 7th Henry IV provided that it should be returned to Chancery; if the return was disputed the matter was decided by the King, assisted by the Lords, though an Act of 1410 gave jurisdiction in the matter to the Judges of Assize." (footnote omitted)
Goodwin v Fortescue (1604) 2 St Tri 91 at 98.
Holdsworth, A History of English Law, 2nd ed (1937), vol 6 at 96.
Anson, The Law and Custom of the Constitution, 4th ed (1909), vol 1 at 170.
Which provide:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;
...
(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth."
Orme, A Practical Digest of the Election Laws, (1796) at 278.
Official Report of the National Australasian Convention Debates, (Adelaide), 15 April 1897 at 681.
As the document which was to become the Constitution was then known.
Official Report of the National Australasian Convention Debates, (Adelaide), 22 April 1897 at 1150.
S193.
S197(iv).
S197(v).
Australia, Senate, Parliamentary Debates (Hansard), 1 November 1907 at 5471.
(1907) 4 CLR (Pt 2) 1463.
R v The Governor of the State of South Australia (1907) 4 CLR (Pt2) 1497.
(1907) 5 CLR 201.
(1907) 4 CLR (Pt 2) 1463.
(1993) 177 CLR 627.
(1993) 177 CLR 627 at 631. In Robertson v Australian Electoral Commission (1993) 67 ALJR 818 at 819; 116 ALR 407 at 409, Toohey J said that the view expressed by Gaudron J was persuasive but found it unnecessary "to express a concluded view on the matter".
(1993) 67 ALJR 781; 116 ALR 223.
(1993) 177 CLR 627.
(1993) 67 ALJR 781 at 782; 116 ALR 223 at 225.
(1992) 66 ALJR 577; 107 ALR 577.
(1992) 66 ALJR 577 at 579; 107 ALR 577 at 580.
Male, A Treatise on the Law and Practice of Elections, 2nd ed (1820) at 336.
Parliamentary Elections Act 1868, s11.
(1875) 3 O'M & H 19.
(1875) 3 O'M & H 19 at 43-44.
(1880) 3 O'M & H 86.
The petitioner contended that an Act of Parliament, which recited that the elected member had all the rights of a natural born British subject but that of being a member of the Privy Council or Parliament, and then enacted that the member should have all the rights which he would have enjoyed if born in the United Kingdom, did not expressly enact that he could be a member of Parliament. Accordingly, the petitioner claimed that the legislation in question did not overcome the effect of 12 & 13 Will III, c 2, s3 which prohibited a person born out of the United Kingdom of non-English parents being a member of Parliament although he or she was naturalised.
(1886) 4 O'M & H 105.
In re Mid-Ulster Election Petition: Beattie v Mitchell [1958] NI 143; In re Fermanagh and South Tyrone Election Petition: Grosvenor v Clarke [1958] NI 151; In re Parliamentary Election for Bristol South East [1964] 2 QB 257.
(1875) 3 O'M & H 19 at 36.
Goodwin v Fortescue (1604) 2 St Tr 91.
10 Geo III, c 16.
(1992) 66 ALJR 577 at 579; 107 ALR 577 at 580.
Parliamentary Elections Act 1868, s3.
Electoral Act, s339(3).
Electoral Act, s339(4).
In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, a majority of this Court held that the existence of a defence provided by s27(5) of the Factories, Shops and Industries Act 1962 (NSW) "[i]n any prosecution for a breach of the obligation imposed" did not mean that there was no breach of the duty imposed under the Act by the relevant obligation.
Electoral Act, s360(3).
Electoral Act, s170(1)(b)(i).
Electoral Act, s172(1).
Electoral Act, s376.
Electoral Act, s379 (emphasis added).
S360 is contained in Div 1 of PtXXII of the Electoral Act.
(1975) 132 CLR 270 at 279.
(1904) 1 CLR 39 at 43.
(1980) 23 SASR 321 at 329.
[1939] St R Qd 90 at 131-132, 145-146.
[1971] 2 NSWLR 169 at 172.
(1939) 61 CLR 313 at 330.
(1906) 4 CLR 297 at 309.
[1896] AC 245 at 248.
(1875) LR 10 CP 733 at 743-744.
[1958] Qd R 324 at 330.
(1875) LR 10 CP 733.
Corrupt Practices (Municipal Elections) Act 1872 (UK), s21(2).
(1874) 2 O'M & H 100 at 103.
S3.
(1904) 1 CLR 39 at 56.
(1904) 1 CLR 39 at 57.
The Ithaca Election Petition, Webb v Hanlon [1939] St R Qd 90 at 139, 147.
(1904) 1 CLR 39 at 58.
(1904) 1 CLR 39 at 58.
(1875) LR 10 CP 733 at 743-744.
(1916) 21 CLR 582 at 591-592.
(1875) LR 10 CP 733.
Bridge v Bowen (1916) 21 CLR 582 at 605.
Bridge v Bowen (1916) 21 CLR 582 at 616-619.
(1904) 1 CLR 39 at 56-57.
(1703) 2 Ld Raym 938 at 944 [92 ER 126 at 130].
(1703) 2 Ld Raym 938 at 958 [92 ER 126 at 138].
(1703) 2 Ld Raym 938 at 956 [92 ER 126 at 138].
A History of English Law, (1938), vol 10 at 570-571.
In A Treatise on the Law and Practice of Elections, 2nd ed (1820) at 213-214, Male defined the scrutiny "to mean, a general reconsideration, by the returning officer, or others by him appointed, either of the poll altogether, or the scrutinizing and maturely examining the validity of particular votes so taken; or the grounds of certain claims which have been respectively received or rejected at the poll, and amending the same, by correcting or establishing the decisions so made, as they may prove to have been erroneous or right."
Male, A Treatise on the Law and Practice of Elections, 2nd ed (1820) at 214-216.
Male, A Treatise on the Law and Practice of Elections, 2nd ed (1820) at 220 (note).
(1762) 3 Burr 1335 at 1338 [97 ER 861 at 863].
Hughes v Marshall (1831) 2 C & J 118 [149 ER 49].
(1869) 1 O'M & H 35 at 41.
(1916) 21 CLR 582.
(1916) 21 CLR 582 at 613.
[1958] Qd R 324 at 331-332.
[1958] Qd R 324 at 333.
(1875) LR 10 CP 733 at 743-744.
(1875) LR 10 CP 733 at 743-744.
cf Webster v Deahm (1993) 67 ALJR 781 at 782; 116 ALR 223 at 225.
Campbell, Parliamentary Privilege in Australia, (1966) at 97-98; Schoff, "The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-judicial Power and Incompatible Function?", (1997) 25 Federal Law Review 317 at 342.
Electoral Act, s374(i).
S3, s4 and s5 of the Common Informers Act provide:
"3. (1) Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of -
(a) $200 in respect of his having so sat on or before the day on which the originating process in the suit is served on him; and
(b) $200 for every day, subsequent to that day, on which he is proved in the suit to have so sat.
(2) A suit under this section shall not relate to any sitting of a person as a senator or as a member of the House of Representatives at a time earlier than 12 months before the day on which the suit is instituted.
(3) The High Court shall refuse to make an order in a suit under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.
4. On and after the date of commencement of this Act, a person is not liable to pay any sum under s46 of the Constitution and no suit shall be instituted, continued, heard or determined in pursuance of that section.
5. Original jurisdiction is conferred on the High Court in suits under this Act and no other court has jurisdiction in such a suit."
Constitution, s47.
"46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction."
Holdsworth, A History of English Law, 2nd ed (1937), Vol 6 at 95.
(1992) 66 ALJR 577; 107 ALR 577.
Electoral Act, s360(1)(ix)
Constitution, s1.
Constitution, s49.
Egan v Willis (1998) 73 ALJR 75; 158 ALR 527.
Constitution, Ch III.
For example under s51(xxxvi).
Commonwealth Electoral Act 1918 (Cth) (the Act), s354(1).
The Act, s353.
On 26 October 1998, pursuant to the Constitution, s7.
Constitution, s44(i).
The Judiciary Act 1903 (Cth), s18.
The Judiciary Act, s18 provides that "[a]ny Justice of the High Court ... may state any case or reserve any question for the consideration of a Full Court ... and a Full Court shall thereupon have power to hear and determine the case or question". No mention is made therein to the Court as a Court of Disputed Returns. It is assumed that the fact that cases have been stated by the Chief Justice and a Justice of the Court, purportedly as constituting the Court of Disputed Returns, does not call into question the validity of the reference under s18, should the constitution of the High Court as the Court of Disputed Returns be constitutionally invalid. No party contested the validity of the references to the Full Court or the jurisdiction of the Court, pursuant to the reference, to determine the questions referred.
(1992) 66 ALJR 577 at 579; 107 ALR 577 at 580. See also In re Wood (1988) 167 CLR 145 at 157-158.
Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 15 April 1897 at 680-681.
Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 15 April 1897 at 681.
Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 15 April 1897 at 681.
The 1902 Act, s193.
The 1902 Act, s197(iv).
The 1902 Act, s197(v).
The 1902 Act, s197(vi).
By the 1905 Act, s56.
By the 1907 Act, s5.
The 1907 Act, s206AA (now s376 of the Act).
The 1907 Act, s206BB (now s377 of the Act).
The 1907 Act, s206CC (now s378 of the Act).
The 1907 Act, s206DD (now s379 of the Act).
The 1907 Act, s206E (now s380 of the Act).
The 1902 Act, s199, s201, s202A, s202B, s204, s205 and s206, now s364 (real justice to be observed), s368 (decisions to be final), s370 (representation), s373 (costs) and s375 (power to make rules of Court).
Australia, Senate, Parliamentary Debates (Hansard), 1 November 1907 at 5467.
Australia, Senate, Parliamentary Debates (Hansard), 1 November 1907 at 5470-5471.
Australia, Senate, Parliamentary Debates (Hansard), 1 November 1907 at 5471.
The 1907 Act, s206DD.
These are part of the Act: Acts Interpretation Act 1901 (Cth), s13(1).
In re Webster (1975) 132 CLR 270; In re Wood (1988) 167 CLR 145.
cf Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?" (1997) 20 University of New South Wales Law Journal 257 at 263; Schoff, "The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-judicial Power and Incompatible Function?" (1997) 25 Federal Law Review 317 at 324, 326-328.
(1992) 66 ALJR 577 at 579; 107 ALR 577 at 580.
(1988) 167 CLR 145 at 157.
(1988) 167 CLR 145 at 169.
(1992) 176 CLR 77.
"Question (a): Was [Mr Cleary] duly elected at the election?" ["No"]. "Question (b): If no to (a), was the election absolutely void?" ["Yes"]. See Sykes v Cleary (No 2) (1992) 176 CLR 77 at 93, 101, 140.
See eg Free v Kelly (1996) 185 CLR 296.
Hudson v Lee (1993) 177 CLR 627; Webster v Deahm (1993) 67 ALJR 781 at 782; 116 ALR 223 at 225; Robertson v Australian Electoral Commission (1993) 67 ALJR 818 at 819; 116 ALR 407 at 409.
s360(3)and s362.
Constitution, s44.
(1988) 167 CLR 145 at 157.
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162; Egan v Willis (1998) 73 ALJR 75 at 81, 91, 106-110; 158 ALR 527 at 535, 549, 568-573.
Cormack v Cope (1974) 131 CLR 432; cf Trethowan v Peden (1930) 31 SR (NSW) 183; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; Attorney-General (NSW) v Trethowan (1932) 47 CLR 97; [1932] AC 526; Egan v Willis (1998) 73 ALJR 75 at 109; 158 ALR 527 at 573.
Egan v Willis (1998) 73 ALJR 75 at 109; 158 ALR 527 at 573.
Constitution, s44.
The Act, s353(1).
The Act, s368.
The Act, s381.
The Act, s368.
They include the extent to which s47 of the Constitution, appearing in PtIV of Ch I, would be read as subject to all of the requirements of Ch III; cf R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166-168.
Re Wakim; Ex Parte McNally [1999] HCA 27.
Constitution, s44(ii).
Constitution, s44(iii).
Constitution, s44(iv).
Constitution, s44(v).
Australia, Constitutional Commission, Final Report, (1988) at 288-289. See also Australian Parliament, Senate Standing Committee on Constitutional and Legal Affairs, The Constitutional Qualifications of Members of Parliament, (1981) No 6 at 9-12, 14.
Constitution, s47.
The Act, s360(1)(ix).
Australia Act 1986 (Cth); Australia Act 1986 (UK).
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
