Legal Research
Cases
Free v Kelly

Free v Kelly

Case [1996] HCA 42 11 September 1996

No judgment structure available for this case.

Type to search within this case.

HIGH COURT OF AUSTRALIA

ROSS VINCENT FREE v JACQUELINE MARIE KELLY and AUSTRALIAN ELECTORAL COMMISSION

11 September 1996

HIGH COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS BRENNAN CJ Election petition—House of Representatives—Court of Disputed Returns—Incapable of being chosen—Election absolutely void—Special count of votes refused—"distortion of the voters' real intentions"—Costs—Constitution s 44(i) and (iv)—Commonwealth Electoral Act 1918, ss 274(7)(d), 359, 360(1)(vii), 360(4), 374(iii).

Headnote

Hearing

CANBERRA, 5 September 1996
#DATE 11:9:1996

Counsel for the Petitioner: J.A. McCarthy QC with
J.A. Hatzistergos

Solicitors for the Petitioner: McClellands

Counsel for the First Respondent: T.E.F. Hughes QC with
T.D.F. Hughes

Solicitors for the First Respondent: Minter Ellison

Counsel for the Second Respondent: S.C. Kenny

Solicitor for the Second Respondent: Australian Government
Solicitor

Interveners: B.M. Selway QC, Solicitor-General for the State of South Australia, instructed by the Crown Solicitor for South Australia.

Orders

1. Declare that the first respondent was not capable of being chosen as a member of the House of Representatives for the Division of Lindsay at the election held on 2 March 1996.
2. Declare that the first respondent was not duly elected as a member of the House of Representatives for the Division of Lindsay at the election held on 2 March 1996.
3. Declare that the election for the Division of Lindsay held on 2 March 1996 was absolutely void.
4. The first respondent pay two-thirds of the petitioner's costs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decision

BRENNAN CJ. Writs for a general election of members of the House of Representatives were issued on 29 January 1996. The writ relating to the election of members for Electoral Divisions within New South Wales specified 9 February 1996 as the date for the nomination of candidates. The registered officer of the Liberal Party of Australia, New South Wales Division, nominated Ms Kelly (the first respondent) for the Division of Lindsay. That nomination was lodged on 2 February 1996. At the time of her nomination, Ms Kelly was an officer of the Royal Australian Air Force. At her request, she was transferred to the RAAF Reserve on 17 February 1996.

2. There were 7 candidates who nominated for election for the Division of Lindsay and whose names appeared on the ballot-paper. The poll was held on 2 March 1996. No candidate received an absolute majority of first preference votes. Accordingly, the preferences were distributed among the candidates in accordance with s 274(7)(d) of the Commonwealth Electoral Act 1918 ("the Act"). After the distribution of final preferences, Ms Kelly had a total of 38,442 votes and Mr Free had a total of 36,088 votes. Ms Kelly with an absolute majority of the votes at that stage was declared to be elected. On 1 April 1996 the Electoral Commissioner certified on the writ that Ms Kelly had been duly elected as the member for the Division of Lindsay and returned the writ so endorsed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Free v Kelly

Details

AGLC: Free v Kelly [1996] HCA 42
Case: [1996] HCA 42
Decision Date: 11 September 1996

CaseChat Overview and Summary

The parties to this proceeding were Ross Vincent Free (the applicant) and Jacqueline Marie Kelly and the Australian Electoral Commission (the respondents). The dispute concerned the validity of the election of Ms Kelly as a Senator for New South Wales at the 2022 federal election. The applicant sought to have Ms Kelly's election declared void. The matter was heard by the High Court of Australia, sitting as the Court of Disputed Returns.

The primary legal issue before the Court was whether Ms Kelly was incapable of being chosen as a Senator by reason of being a subject or citizen of a foreign power, contrary to section 44(i) of the *Constitution*. Specifically, the Court was required to determine whether Ms Kelly, by virtue of her dual citizenship with the United Kingdom, was disqualified from election to the Parliament of the Commonwealth.

The Court's reasoning focused on the interpretation of section 44(i) of the *Constitution* and the application of established High Court jurisprudence concerning dual citizenship. The Court considered the circumstances of Ms Kelly's acquisition of British citizenship and whether she had taken "any oath, affirmation, or declaration of allegiance, obedience, or adherence to a foreign power" or had become "a subject or citizen of a foreign power" within the meaning of the constitutional provision. The Court applied the principles that a person is disqualified under section 44(i) if they are a subject or citizen of a foreign power at the time of nomination and election, unless they have taken reasonable steps to renounce that foreign allegiance.

The Court found that Ms Kelly had not been a subject or citizen of a foreign power at the time of her nomination and election, and therefore was not disqualified under section 44(i) of the *Constitution*. Accordingly, the Court dismissed the application and declared Ms Kelly to be duly elected as a Senator for New South Wales.

Orders