Hyams v Victorian Electoral Commissioner & Buchanan

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4233 of 2003

DAVID COLIN HYAMS	Petitioner
v
VICTORIAN ELECTORAL COMMISSION	First Respondent
- and -
ROSALYN BUCHANAN	Second Respondent

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8, 9 May 2003
DATE OF JUDGMENT:	21 May 2003
CASE MAY BE CITED AS:	Hyams v Victorian Electoral Commission and Buchanan
MEDIUM NEUTRAL CITATION:	[2003] VSC 156

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COURT OF DISPUTED RETURNS – Petition disputing validity of election of a member of the Legislative Assembly – Alleged disqualified by s.49 of the Constitution Act 1975 - Section 49 applied to employee of Crown in right of Commonwealth at date of nomination – Section 61 of the Constitution Act 1975 applied to employee of Commonwealth and excused the employee from the operation of s.49 – Joinder of parties – Electoral Commission not an essential party – Jurisdiction of the Court of Disputed Returns.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T. Hurley	Henty Jepson & Kelly
For the First Respondent	Miss S.G. MacDougall	Victorian Government Solicitor
For the Second Respondent	Mr C. Maxwell Q.C.	Holding Redlich

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Constitutional Question - Notice.................................................................................................... 6

Facts...................................................................................................................................................... 6

The Dispute......................................................................................................................................... 9

Office Under the Crown – Section 49........................................................................................... 11

The Crown Disqualification Rule – Section 49.......................................................................... 21

A. Application to the Crown?........................................................................................................ 22

B. Time the Disqualification Rule Operates.............................................................................. 25

The Excusing Provision – Section 61............................................................................................ 28

Jurisdiction of Court of Disputed Return................................................................................... 38

Conclusion......................................................................................................................................... 40

HIS HONOUR:

This is the return of a petition to the Supreme Court of Victoria sitting as the Court of Disputed Returns. This court is the Court of Disputed Returns for the purposes of the Electoral Act 2002 (“the Act”). See s.124(1). The Act does not create a new court but confers jurisdiction on this court, to be exercised by it as the Court of Disputed Returns. See Sue v Hill.[1] The observations of the High Court are based on wording of legislation similar to the Act. When this court sits as the Court of Disputed Returns, it may be constituted by a single judge. See s.124(2). The Chief Justice nominated me, in writing, to hear and determine the petition.
[1](1999) 199 CLR 462 at 481 and 519.

The petition disputes the validity of the election of a member of Parliament, who was elected in the election of all members of the Legislative Assembly held on Saturday 30 November 2002 (called a simultaneous election – s.3).

Parties

The petitioner, David Colin Hyams (“the petitioner”), has resided in Tyabb in this State since 1996 and was eligible on 30 November 2002 to vote in the election for the member of the Legislative Assembly seat of Hastings. By reason of s.134 of the Act, he is entitled to present the petition.

The petitioner filed his petition with the Prothonotary of the Supreme Court on 22 January 2003 within the period prescribed by the Act. See s.135(d).

The first respondent, the Victorian Electoral Commission (“the Commission”), was established by s.6(1) of the Act, is a body corporate, represents the Crown in the right of the State of Victoria, is capable of being sued, and consists of one member, being a person who is appointed as the Electoral Commissioner. See ss.6(2) and 7. The Commission has the responsibility for the administration of the enrolment process in this State and, importantly, the conduct of its parliamentary elections. See s.8.

Miss S. MacDougall of Counsel, who appeared for the Commission, submitted that it was not a necessary party to the proceeding, and sought orders that it be removed from the proceeding and the petitioner pay its costs.

When the proceeding was instituted, the only parties were the petitioner and the Commission. Ms Rosalyn Buchanan (“Ms Buchanan”) was the successful candidate for the Legislature Assembly seat of Hastings in the elections of 30 November 2002. She applied through counsel and was granted leave on 30 March 2003 to intervene in the proceeding. It became apparent that she should have been joined as a party and on application, I joined her as second respondent.

Ms Buchanan nominated as the Australian Labour Party candidate for the seat of Hastings in the Victorian State Election and was publicly declared the elected candidate on 11 December 2002 pursuant to s.121(2)..

The Court of Disputed Returns was established in this State by the Electoral Act 1934 – s.8. The legislation establishing the Court has been repealed but the Court has continued to exist under subsequent legislation. See, for example, The Constitution Act Amendment Act 1958 – s.280. The provisions in the latter Act have been repealed and the Supreme Court is the Court of Disputed Returns by reason of the Electoral Act 2002 – s.124. Its powers, express and implied, are to be found in the Act and in particular Part 8. Some of the powers of the Court are set out in s.125. Section 126 requires the court to “act fairly and according to the substantial merits of the petition in the proceedings”. Section 127 deals with general procedure. Whilst the court is bound by the rules of natural justice, it is not bound by any rules of evidence or any other practices or procedures applicable to courts of record ”except to the extent that it adopts those rules, practices or procedure”. The Court must conduct each proceeding with as little formality and technicality as the requirements of the Act permit.

In my opinion, it is clear that Ms Buchanan should have been a party to the proceeding. I did not understand the petitioner’s counsel, Mr T. Hurley, disagreeing with that conclusion. The petitioner swore an affidavit in which he stated that he was advised by the Prothonotary of the Supreme Court to join the Commission as being the necessary party. He evidently relied on the assumption that he did not have to join Ms Buchanan as a party. He was wrong. It appears that at that stage, the petitioner had not engaged a legal practitioner.

The Supreme Court has exercised its jurisdiction as a Court of Disputed Returns on occasions in the past and where the attack was on the validity of the election process, the parties were invariably the losing candidate, the candidate and the Chief Electoral Officer. Under s.284 of The Constitution Act Amendment Act, the latter could, by leave, enter an appearance and be represented and heard, and thereby was deemed a party. See Fell v Vale (No. 1) and (No. 2);[2] and Varty v Ives.[3] The position is the same under the new Act – see s.136 – that is, the Commission may seek leave to appear and be heard and if granted, becomes a respondent to the petition.
[2][1974] VR 129 and 134.
[3][1986] VR 1.

The petition alleges that Ms Buchanan, at the relevant time, was a person who held an office or a place of profit under the Crown and accordingly, was not eligible to sit in Parliament by reason of s.49 of the Constitution Act 1975 (“Constitution Act”) and her election was null and void. Leading up to the election, Ms Buchanan was employed under the Public Service Act 1999 (Cth) by Centrelink, which is an agency established under the Commonwealth Services Delivery Agency Act 1997 (Cth). The petition does not allege any fault on behalf of the Commission concerning the election of Ms Buchanan and there is no suggestion that the Commission was guilty of any negligence or misconduct in relation to the election or the return of the election writ. In those circumstances, it is submitted that since there was no attack made upon it or any of the officers, it was not a necessary party to the proceeding and should be removed.

Section 134 of the Act sets out who may dispute the result of an election and one of the persons who may dispute it is in fact the Commission. Whilst the Act is silent as to who should be a party to the petition, there is reference in various sections to other parties. For example, under s.130, the Court of Disputed Returns may award costs against an unsuccessful party to the petition. As already stated, the Commission may seek leave to be heard and if granted, becomes a party.

Miss MacDougall informed the Court that the Commission would only enter an appearance where the dispute relates to the conduct of the election and raises the question as to the Commission’s conduct of it. She pointed out it is not part of the Commission’s responsibility to check the credentials of every candidate in an election. Section 70 does permit the Commission or an election manager to reject a nomination on certain grounds but none of the specified bases deals with the situation that the candidate is precluded from election by reason of the person’s office under the Crown. In my opinion, the Commission could not have rejected Ms Buchanan’s nomination because she was employed by the Crown at the nomination stage of the election process, even assuming it knew.

In my opinion, a necessary party to the petition is any party whose interests could be affected by any order made in the proceeding. Interest should be broadly interpreted and cover any interest, including one’s reputation. If any attack was made upon the Commission as to the conduct of the election or there was the possibility of adverse findings being made against the Commission or its officers, in the absence of any other party, the Commission should be a party. But it is difficult to imagine any petition which did not put in question the election of the successful candidate. There is no doubt, in those circumstances, the candidate must be a party. The court is bound by the rules of natural justice and could not make any order which adversely affected the interests of a person without giving that person an opportunity to be heard – see s.127(a).

The Commission could then apply for leave to be heard under s.136 if it thought it appropriate to take part in the proceeding.

However, I cannot see any basis for the joinder of the Commission in this proceeding. Mr Hurley, on behalf of the petitioner, was unable to advance any argument as to why the Commission should remain as a party. Accordingly, I propose to make an order that the Commission be removed as a party to this proceeding.

My ruling should not deter the Commission from applying for leave pursuant to s.136 in future proceedings. Its presence will usually provide assistance to the Court.

Constitutional Question - Notice

The petitioner formed the view that the petition involved a matter under the Commonwealth Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903, and as required by that Act, gave notification to the Attorneys‑General for the Commonwealth and the various States and Territories. Each Attorney‑General responded to the notice, and each stated that he would not be seeking to intervene in the proceeding, nor in the case of the Australian Government Solicitor would application be made to remove the cause to the High Court.

Facts

The Supreme Court made rules concerning the practice and procedure for the Court which was established by The Constitution Act Amendment Act 1958. See Order 20 of Chapter 2 of the Rules of Court. Those rules no longer apply. Rules under the new Act have not been made.

The Court is the master of its own practice and procedure (s.127(b)) and I informed the parties I proposed to conduct the proceeding as if it was commenced by writ, which was the position under the old rules. The general rule, when a proceeding is commenced by writ, is that evidence will be adduced viva voce but the Court may admit evidence adduced by affidavit. The petitioner sought leave to adduce his evidence in affidavit form and the application was not opposed by the other parties. . Accordingly, I granted leave. Ms Buchanan had sworn an affidavit in opposition to the petition on 28 February 2003. The petitioner adduced in his case, her affidavit and also an affidavit sworn by him on 8 May 2003. The petitioner called no further evidence.

Save for tendering a number of letters passing between the petitioner and the Commission, by consent, Ms Buchanan did not call any additional evidence.

The Commission did not call any evidence.

Neither deponent was cross-examined and none of the facts were disputed.

The petitioner, at all relevant times, resided in Tyabb.

Prior to 30 November 2002, the Governor of Victoria, pursuant to s.61, issued writs for an election of all seats in the House of Assembly. The election was fixed for Saturday 30 November 2002. The petitioner was eligible to vote in the election for the electoral district of Hastings.

Ms Buchanan was a candidate in the election for the Legislative Assembly seat for Hastings.

On 15 November 2002, Ms Buchanan, who resided in Hastings, nominated as the Australian Labour Party candidate for the Legislative Assembly seat of Hastings. At that time, she was an employee of the Commonwealth. She was employed under the Public Service Act 1999 (Cth) by Centrelink, which is an agency established under the Commonwealth Services Delivery Agency Act 1997. Her classification was that of Senior Officer Grade C. She had been employed with Centrelink since May 1986.

Prior to nominating, on 6 November 2002, Ms Buchanan sent a letter to her personnel manager at Centrelink which was a conditional notice of resignation. Her notice was expressed in the following terms –

“As a candidate in the State election to be held on 30 November 2002, I hereby advise that I submit a resignation request to be automatically actioned if, prior to the declaration of a poll on the evening of 30/11/02, it becomes apparent that I will become the duly successful candidate.”

She requested and was granted annual leave for a period 9 November 2002 to 6 December 2002.

At the close of the counting on the evening of 30 November 2002, the results were extremely close and it was not apparent that she would be the successful candidate. It was not until Thursday 5 December 2002 that it became apparent she would be elected and on that day, she rang her personnel manager and told her that she would be elected and to give effect to her resignation.

On Friday 6 December 2002, the Returning Officer for the Koo Wee Rup division of the Victorian Electoral Commission advised her that he was ready to declare the poll with her as the successful candidate, by a margin of 582 votes.

Election Managers are appointed for districts to conduct an election. See s.18. According to s.121(2) of the Act, as soon as practicable after election day, the Election Manager must publicly declare the result and announce the name of the candidate elected. On 11 December 2002, at 4.30 p.m., Ms Buchanan was declared the elected candidate. By reason of s.121(4), the Commission was bound to publicly advertise the result, and by reason of s.121(5), endorse on the writ for the election the name of the successful candidate and return the writ to the person who issued it. The writ was returned to the Governor.

In accordance with the letter of resignation and the advice to Centrelink, on 5 December 2002, Centrelink gave effect to her resignation as at 30 November 2002. She subsequently received documentation from Centrelink confirming that and informing her of her final entitlements. Her Employment Separation Certificate stated that her employment ceased on 30 November 2002 and her entitlements were calculated on that basis.

Although the letter of resignation was conditional and was to be effective as at 30 November 2002, in my view, the employment was not brought to an end until 5 December 2002. This was some six days prior to the declaration of the result. Although there is no evidence as to when the Commission returned the writ to the Governor, I infer that the Commission carried out its statutory function pursuant to s.121(5) within the time specified in it.

The Dispute

The petitioner asserts that at all relevant times, Ms Buchanan held an office or place of profit under the Crown and accordingly, was ineligible to sit in the Legislative Assembly of Victoria by reason of s.49 of the Constitution Act 1975. It followed that her election was null and void and the petitioner sought a declaration to that effect pursuant to s.125(g) of the Act.

The law relating to the ineligibility of a member of Parliament to hold an office or place of profit under the Crown goes back to the reign of Queen Anne at the beginning of the 18^th Century in England.

The State of Victoria’s version of the statutory disqualification is now found in s.49 of the Constitution Act 1975, although the rule was first enacted as long ago as 1855.

It provides –

“Except where express provision is made to the contrary by any Act or enactment no person who holds any office or place of profit under the Crown, or who is in any manner employed in the public service of Victoria for solely wages fees or emolument, shall sit or vote in the Council or the Assembly; and the election of any such person to be a member of the Council or the Assembly shall be null and void.”

The petitioner submits that the reference to “the Crown” in s.49 is a reference to the Crown in the right of the Commonwealth and the States and Territories. It is submitted that the section applies to Ms Buchanan who, on election day, was a Commonwealth public servant.

The disqualification rule has in the past been, and is, subject to exceptions and for many years, has been subject to an excusing provision. It is now in s.61 of the Act.

Section 61 provides that holders of an office or place of profit under the Crown and others are not disqualified from election to the Council or Assembly but that on their election, that person shall cease to hold that office or place of profit.

Section 61 provides –

“Notwithstanding anything in this Act or the Public Sector Management and Employment Act 1998, the Teaching Service Act 1981, the Transport Act 1983, the Police Regulation Act 1958 or any other Act a person shall not be disqualified or disabled from or be ineligible to be a candidate of any election whether for the Council or for the Assembly or being elected or returned a member of the Council or of the Assembly by reason only of his being the holder of any office or place of profit under the Crown or in any manner employed in the public service of Victoria for salary wages fees or emolument and the election and return of any such person shall not be or be declared void by reason only of his holding such an office or place of profit under the Crown or being so employed; and on the election of any such person to be a member of the Council or the Assembly he shall cease to hold that office or place of profit under the Crown or to be so employed.”

(Emphases added).

The petitioner submits that s.61 does not excuse Ms Buchanan from the effect of s.49, because the reference to “the Crown” in s.61 only relates to the Crown in the right of Victoria for a number of reasons, one of which was that the concluding words of s.61 were beyond the legislative competence of the Victorian Parliament.

Mr Maxwell QC, on behalf of Ms Buchanan, answered those contentions by submitting –

(i)that the Court of Disputed Returns did not have the jurisdiction to deal with the complaint made against her under s.49 of the Constitution Act 1975;
(ii)that “the Crown” in s.49 means the Crown in the right of Victoria;
(iii)that if s.49 applied to the Commonwealth Crown and its employees, she had ceased to be a Commonwealth employee before the relevant date for the purposes of s.49, that date being not earlier than the declaration of the election;
(iv)that s.49 is subject to “express provision to the contrary” and s.61 applies to a Commonwealth employee;
(v)that s.61, if it does apply to a Commonwealth employee, is within the legislative competence of the Victorian Parliament even though the section may have the effect of bringing to an end a contract of employment between the Commonwealth and its employee in this State; alternatively, if the State does not have that power and it is inconsistent with Commonwealth legislation pursuant to s.109 of the Constitution, then the invalidity is limited to the last part of the section.

Before considering these rival contentions, it is necessary to trace the history of the disqualification rule in s.49.

Office Under the Crown – Section 49

The Crown Office disqualification rule has its origins in the Statute law of England at the beginning of the 18^th Century and was introduced into the law of the colonies in this country as each became self-governing, the laws of the Commonwealth on its establishment in 1901 and the laws of each State after Federation.

The rule was introduced into English law by the Act of Settlement 1701 – (1701) 12‑13 William III c.2. The primary object of that Act was to fix the succession of the Crown, confining it to members of the Protestant faith. However, the Act also contained a number of very important constitutional provisions, amongst them the independence of the judiciary. But in addition, the Act also disqualified persons from membership of the House of Commons if they had an office or place of profit under the Crown.

The sixth article provided –

“That no person who has an office or place or profit under the King or receives a pension from the Crown shall be capable of serving as a member of the House of Commons.”

The disqualification rule was enacted no doubt to meet what the members of the House of Commons considered were undesirable and inappropriate practices in the United Kingdom at that time. It is important to note the wording of the article. No such person is capable of serving as a member of the House of Commons. It was considered at the time as too sweeping and was repealed in 1705 (see (1705) 4 and 5 Anne c.20, ss.27 and 28). Two years later, the Succession to the Crown Act 1707 (6 Anne c.41) was passed and it contained a provision enacting the disqualification rule, but in different language to that employed in the earlier statute.

Writing in 1856, Mr E.S. Creasy in the third edition of his work, The Rising Progress of the English Constitution, at p.331, had this to say about the rule in the Act of Settlement -

“The sixth article in the Act of Settlement was designed to put a stop to the rapidly-increasing influence which the Crown was acquiring over the House of Commons, by being able to confer places and pensions on its members. This power had been made an engine of extensive and grievous corruption during the last bad reigns, and had excited just popular indignation. But the framers of the Act of Settlement, though laudably anxious to check this abuse, went into the opposite extreme, which Mr Hallam truly calls ‘the preposterous extremity of banishing all servants of the Crown from the House of Commons.’
This sweeping clause of the Act of Settlement never came into operation. It was repealed in the fourth year of Anne’s reign. Another Act on the subject was passed in the same reign, by which every member of the House of Commons, accepting an office under the Crown, except a higher commission in the army, must vacate his seat but may be re-elected; and by which also persons holding offices created since 25 October 1705 were incapacitated from being elected or re-elected Members of Parliament.”

Section 24 of the Succession to the Crown Act 1707 provided -

“AND be it further enacted by the authority Aforesaid That no person who shall have in his own name or in the name of any person or persons in trust for him or for his benefit any new office or place of profit whatsoever under the Crown which at any Time since the Five and twentieth Day of October in the Year of our Lord One thousand seven hundred and five have been created or erected or hereafter shall be created or erected nor any Person who shall be Commissioner or Sub‑Commissioner of Prizes Secretary or receiver of the Prizes nor any Comptroller of the Accompts of the Army nor any Commissioner of Transports nor any Commissioner of the sick and wounded nor any Agent for any Regiment nor any Commissioner for any Wine Licences nor any Governor or Deputy Governor of any of the Plantations nor any Commissioners of the Navy employed in any of the Out Ports nor any Person having any Pension from the Crown during Pleasure shall be capable of being elected or of sitting or voting as a Member of the House of Commons in any Parliament which shall be hereafter summoned and holden.”
(Emphases added).

The wording of the Act is different to the wording in the Act of Settlement and disqualifies a member before, at or after election. The High Court referred to the three main reasons for the enactment, in Sykes v Cleary.[4]
[4](1992) 176 CLR 77 at 95.

From time to time after 1705, the English Parliament included other offices created since 25 October 1705 within the disqualification rule and from time to time, certain offices have been excepted from the provisions of the Succession to the Crown Act 1707. See Halsbury’s, The Laws of England, first edition, Vol. 21, pp.659-60, footnotes (f), (g) and (h).

The House of Commons had existed for hundreds of years before 1707, and the enactment of the disqualification rule was to put a stop to the undesirable practice of the Crown’s influence over the members of the House of Commons. The section was drafted to meet the problems of the times. As the later history shows, the operation of the disqualification rule has been changed to meet the conditions of the times. When construing a particular disqualification rule, the wording of it is vital.

The founding of the Colony of Victoria occurred in 1835. The colony was separated from the colony of New South Wales by an English Act of 1850 called “an Act for the better Government of Her Majesty’s Australian colonies”. That Act created a legislative council for Victoria. The new legislature was given wide authority to make laws for the peace, welfare and good government of the colony. There were some restrictions on their law‑making power. The Act created a new colony of Victoria, made provision for its government and the administration of justice. The new Constitution came into effect on 13 January 1851. A new Constitution was proposed and was assented to by Her Majesty in Council in July 1855 and came into operation on 23 November 1855. It is called the “Constitution Act”. It is re‑printed, for convenience, in the 1958 consolidation. It introduced into the Colony of Victoria a new House of Parliament, namely, a Legislative Assembly; made provisions for qualification of electors and members of Parliament; and introduced into Victorian law a disqualification rule.

Section 17 was in these terms –

“If any member of the Legislative Council or the Legislative Assembly shall accept of any office of profit under the Crown during pleasure his seat shall thereupon become vacant but such person shall if otherwise duly qualified be capable of being re-elected.”

As at 1855, there were other self-governing colonies in Australia. Each had a Governor representing the Crown. At that time, the thinking was that the Crown was one and indivisible and the word “Crown” in the provision would have included the Crown in respect of the other colonies. Later events changed the thinking.[5] The drafting of much of the new Constitution was the work of a committee established in the colony and was based on the constitution of the Canadian provinces. See The Government of Victoria by Professor Edward Jenks, pp.191-8.
[5]See Sykes v Cleary, supra, at 118-9 and Peter Hogg, Liability of the Crown, 2^nd ed. at 10-12.

The wording is different from the Crown Succession Act of 1707 and has some similarity with the Act of Settlement, but it is clear that it is dealing with a person who is already a member of Parliament accepting any office of profit under the Crown.

There was a specific exception to this disqualification rule found in s.18, which provided that at least four important posts in the colony should be held by a member of Parliament, including the Colonial Secretary or Chief Secretary, Attorney‑General, and Colonial Treasurer. Section 25 specifically dealt with the incapacity of any person who had a contract with the Crown. He was incapable of being elected or of sitting or voting as a member of the Council or Assembly.

It is important to note the words of s.25, the first part of which stated -

“25. Any person who shall directly or indirectly himself or by any person whosoever in trust for him or for his use or benefit or on his account undertake execute hold or enjoy in the whole or in part any contract or agreement for or on account of the public service shall be incapable of being elected or of sitting or voting as a member of the Council or Assembly during the time he shall execute hold or enjoy any such contract or any part … “.
(Emphases added).

The contract incapacity rule applied not only to a person sitting in Parliament but also the election of that person. That is to be compared with s.17, which disqualified only after election.

It is noted under s.26 that the question whether or not a person was disabled or incapable of sitting in Parliament was a matter to be decided by the Legislative Council or Legislative Assembly.

It is observed that the disqualifications set out in that Act specifically refer to the disqualification after election and also a disqualification from being elected. In that sense, the Act appears to bring together the provisions of the Act of Settlement and the Crown Succession Act.

In 1859, the Parliament of Victoria enacted an amendment to the Constitution Act which specifically dealt with limiting the number of persons holding offices under the Crown who may sit and vote in the Parliament.

The long title to the Act, which is numbered 91, was –

“An Act to limit the number of persons holding offices under the Crown who may sit and vote in the Legislative Council and Assembly of Victoria.”

The disqualification rule is expressed in s.1 as follows –

“No person except the persons hereinafter named who shall hold any office or place of profit under the Crown or who shall be in any manner employed in the public service of Victoria for salary wages fees or emolument shall sit or vote in said Council or Assembly and the election of any such person to be a member of the said Council or Assembly shall be null and void.”

It is noted that the wording is different to s.17 of the Constitution Act and similar to the present disqualification rule found in the Constitution Act 1975 – s.49.

The disqualification rule prohibited a person who held any office or place of profit under the Crown or is in the public service of Victoria, from sitting or voting in the Council or Assembly. The section provided that the election of any such person to be a member of the Council or Assembly was null and void.

Section 1 appears to be based upon the provisions of the Act of Settlement and the Crown Succession Act, but the section is different.

Act No. 91 provided for exceptions to the rule, namely, that certain salaried offices shall be excluded from the prohibition. Section 4 deals with those who have contracts with the Crown. It provided –

“No person shall either directly or indirectly be concerned or interested in any bargain or contract entered into by or on behalf of Her Majesty or who shall participate or claim to be entitled to participate either directly or indirectly in the profit thereof or in any benefit or emolument arising from the same shall sit or vote in the said Council or Assembly and the election of any such person to be a member of either of the said Houses shall be absolutely null and void.”

This is in similar terms to s.1 and unlike the previous provision, did not expressly disqualify in relation to an election.

There was, however, an exception to the contractor’s prohibition found in s.6 where the contract was with any company, partnership or association consisting of more than 20 persons. Section 11 excepted from the operation of the disqualification rule the President or Chairman of Committees of the Legislative Council or the Speaker or Chairman of Committees.

In addition, to underline the importance of members of Parliament not being compromised, the Act imposed a penalty where a person contravened it. See s.12.

The 1855 disqualification rule operated in respect of a sitting member. The 1859 version was not as clear as the earlier version and left the time of its operation open to debate.

Reference to the Victorian Hansard, Vol. 4, for 1859, at p.340 et seq shows that s.1 was put forward by a member of Parliament. The Bill was discussed in committee. The draft section was expressed in these terms, which must be compared with s.1 –

“No person except the persons hereinafter named, who shall hold any office of profit or emolument in the public service of Victoria, shall sit or vote in the said Council or Assembly, and the election of any such person to be a member of the said Council or Assembly shall be null and void.”

Hansard records some of the discussion had in relation to that proposal. The words are very similar to what was eventually passed. It can be said that the section is truly Victorian, drafted by Victorians for application in Victoria.

The disqualification rule was repealed and re-enacted a number of times in the years that followed. From time to time, the Parliament enacted exceptions to the rule. See, by way of example, the Railways Standing Committee Act 1891, s.7.

Section 1 was re-enacted in The Constitution Act Amendment Act of 1890 (see s.12), and is in similar terms to the present provision.

On 1 January 1901, the Australian Constitution came into operation. The Australian Constitution contained a disqualification rule section. It is s.44(iv) of The Constitution. It provides –

“44. Any person who –
(i)…
(ii)…
(iii)…
(iv)holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth:-
(v)…

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
(Emphasis added).

It is noted that the wording is similar to the provisions of the Crown Succession Act 1707 but different from the provision found in the Victorian legislation. I mention this provision because the High Court considered it in Sykes v Cleary, supra. Mr Hurley, on behalf of the petitioner, relied upon this case. It is necessary to briefly discuss it and to note what the High Court decided.

Mr Philip Cleary was declared at a by-election for the seat of Wills in the State of Victoria to the House of Representatives in the Commonwealth Parliament. It was contended that at the time of the election, he held an office of profit under the Crown by reason of the fact that he was an officer of the Education Department of Victoria and was incapable of being elected by reason of s.44(iv) of the Constitution. Mr Cleary nominated for the seat on 20 March 1992, the election took place on 11 April 1992 and he resigned from the Education Department on 16 April 1992. On 30 January 1992, Mr Cleary commenced leave without pay until 24 January 1993. This leave ceased on 16 April 1992 when his resignation became effective. On 23 April 1992, the Returning Officer declared Mr Cleary elected. The writ for the election was returned on or about 17 June 1992. It follows that on polling day, he was still employed by the Education Department but by the time the declaration was made and the writ was returned, he was no longer in the employ of the Crown.

The High Court held –

· That a permanent public servant who is a teacher employed by the Education Department is the holder of an office under the Crown and the fact that the person takes leave without pay does not alter the character of the office.

· That the phrase “the Crown” in s.44(iv) covered the office of profit under the Crown in the right of a State.

· That the time when the disqualification operated was during the process of being chosen and accordingly, since nomination was an essential part of that process, the disqualification occurred as early as the nomination.

The High Court held by a majority, with Deane J dissenting, that Mr Cleary was disqualified at the time of lodging his nomination and also at the date of the election and hence, was incapable of being chosen as a member of the House of Representatives.

Mr Hurley relied upon this decision, in support of the petitioner’s case. But the wording of the Constitution is substantially different to the Victorian provision and the High Court was of the view that the words were clear and beyond doubt, and they related to the election process which commenced at least in relation to a candidate with his nomination. The High Court also relied upon other matters to support their conclusion.

The disqualification rule was re-enacted in Victoria by The Constitution Act Amendment Act 1890, see s.12; amended in an inconsequential way in the Constitution Act 1903, see s.12; re-enacted by The Constitution Act Amendment Act 1915; The Constitution Act Amendment Act 1928; and The Constitution Act Amendment Act 1956, which was re-enacted in 1958. The wording of the disqualification rule has remained in the same terms ever since it was first passed.

The Constitution Act was enacted in 1975 and contains most of the provisions that were in The Constitution Act Amendment Act. The disqualification rule was enacted in s.49. It has been amended a number of times since. Section 49, which I set out above, is in similar terms to s.1 of Act No. 91 passed in the year 1859.

The words of the disqualification rule are peculiarly Victorian and whilst owing their origins no doubt to the Act of Settlement and the Crown Succession Act of 1707, are different and were passed to give effect to the concern of Parliament by reason of persons holding office with the Crown and being members of Parliament in this State.

In the very first Act which dealt with the disqualification rule, namely, the Constitution of 1855, right through to the present, the Parliament from time to time has exempted certain persons from the operation of the rule. For example, from very early in the life of the Commonwealth, the disqualification was removed in respect of members of the defence forces. Now see s.60 of the Constitution Act 1975. The exemption has also been extended to others.

In 1935, the Parliament enacted the Parliamentary Elections (Railway Employees and Civil Servants) Act 1935. Section 2 of that Act exempted persons employed in the public service or the railway service from disqualification and the section provides that on the election of any such person, that person shall cease to be so employed by the Crown. The exemption was confined to any person employed in the public service or in the railway service. That provision was re‑enacted in The Constitution Act Amendment Act of 1956 (see s.29) and re-enacted in the 1958 Act. By 1956, the exemption extended also to teachers. In 1975, the exemption was extended to the police force.

The Parliament in the past confined the exemption to the public service, employees in the railway and teaching service, and the police. In 1977, the Parliament repealed the excusing section and substituted a new section, now s.61.

Mr Maxwell QC, on behalf of the petitioner, submitted that the section covered the position of Ms Buchanan and accordingly, the disqualification rule could not apply to her.

I have set it out above. The new section widened the excusing provision to -

· A holder of any office or place of profit under the Crown.

· Any person employed in the public service of Victoria for salary, wages, fees or emolument.

It is a beneficial provision designed to overcome the draconian effect of s.49 and if ambiguous, should be given a liberal interpretation. See Bull v Attorney‑General (NSW).[6]
[6](1913) 17 CLR 370 at 384 per Isaacs J.

It is noted that the excusing section, from its first introduction, dealt with ineligibility to be a candidate, or being elected, or being returned to the Parliament by reason of the office of profit under the Crown. In other words, it covered the whole election process from nomination to election. The section when first introduced into Victorian law by the Parliamentary Elections (Railway Employees and Civil Servants) Act 1935 also covered the same alleged disqualifications and that Act, in s.1, was to be – “read and construed as one with The Constitution Act Amendment Act 1928 which Act and this Act may be cited together as The Constitution Act Amendment Acts”. Hence, when the Constitution Act 1975 was passed, it contained the disqualification rule in s.49 and s.61, which identified the bases for disqualification but excused those caught by the disqualification rule from its effect. The present s.61 was substituted in 1977.

The Court is concerned with the 1975 Constitution Act as amended.

For completeness, both the Commonwealth and State Parliaments enacted legislation which was aimed to overcome the prejudice which may be suffered by a public servant who, having resigned and failed to be elected, wished to return to his or her prior employment. The Acts provided that he or she could be reinstated in his or her public service position upon returning to employment. See the Public Service Act 1999 (Cth) s.32, and the Public Service (Commonwealth Elections) Act 1940 (Vic). Now see s.49 of The Constitution Act Amendment Act 1958 and in respect of a member of Parliament who ceases to be a member being re‑instated in his or her former employment, see s.30 of the same Act. The Commonwealth Act applies to an employee who resigns and contests a State election. See Public Service Regulations 1999, Reg. 3.13(a).

The Crown Disqualification Rule – Section 49

The petitioner contends that s.49 applies to Ms Buchanan and accordingly, she is disqualified from being a member of Parliament. Ms Buchanan contends that the provision does not apply to her and was not applicable at the time when the election was declared. By then she had resigned.

There are two issues concerning the operation of s.49 to the facts of this case. The first is whether the provision applies to employees of the Crown in the right of the Commonwealth and secondly, at what time during the election process does the disqualification rule operate under that section?

A. Application to the Crown?

The disqualification relates to a person “who holds any office of profit or place of profit under the Crown or who is in any manner employed in the public service of Victoria for salary wages fees or emolument”.

It is common ground that Ms Buchanan was not employed in the public service of Victoria. What is meant by the phrase “under the Crown”?

Although it was once said that the Crown is one and indivisible, nevertheless that is misleading in the setting of the Commonwealth of Australia. There is the Crown in the right of the Commonwealth of Australia and there are Crowns in the right of each State. This is made clear by what Deane J said in Sykes v Cleary.[7] His Honour said –

“The development of the full independence and sovereignty of nations such as Australia, Canada and New Zealand which maintain their allegiance to the personal embodiment of the Crown of the United Kingdom made it inevitable that the common law recognised that the British Crown has a ‘distinct and independent’ capacity in each of its relationships with the different polities which make up the Commonwealth.”

[7]Supra at 118.

What is embraced by the word “Crown” in any legislation is a question of the intention of Parliament. But in this State, assistance is provided by the Interpretation of Legislation Act 1984, which provides a statutory presumption. It provides -

“38. Definitions
In all acts and subordinate instruments, unless the contrary intention appears –
‘Crown’ means the Crown in right of Victoria.”
(Emphasis added).

It follows that the word “Crown” in s.49 is referring to the Crown in the right of the State of Victoria, unless there is a contrary intention expressed by the Parliament.

It was submitted by the petitioner that there was a contrary intention expressed by Parliament. Section 49 describes the type of person who is disqualified. It draws a distinction between those who hold any office or place of profit under the Crown and those who are in any manner employed in the public service of Victoria for salary, wages, fees or emoluments. In my view, the second description is not confined to public servants but covers not only those who are employed in government departments but also any other person employed in the service of the public; by way of example, teachers or policemen. The first part of the description covers those who are not employed in the service of the public but who do hold some office or place of profit under the Crown. Section 49 is worded to cover a very wide field of disqualification. In my opinion, the phrase “the Crown” covers an employee of the Crown in the right of the Commonwealth or another State. The historical background to the section tends to support that conclusion. But that does not amount to an expression of a contrary intention. It is the Parliament through the legislation which must provide the contrary intention which shows that the word “Crown” means something in addition to Crown in the right of Victoria. In my opinion, there is evidence of a contrary intention in the Act.

First, s.60 removes the disqualification in respect of a person who is a member of any of the defence forces of the Commonwealth. This provision was first enacted by the Member’s Qualification (Amendment) Act 1916 and re-enacted in the Constitution Act Amendment Act 1928. See s.28.

If the disqualification rule, which, of course, is a statutory rule and not a common law rule, found in s.49 was confined to the Crown in the right of Victoria, then it would have been unnecessary to pass s.2 back in 1916, now s.60. The provision has been repealed and re-enacted on four occasions since and in my view, provides cogent evidence of the contrary intention with respect to the application of the disqualification rule. That part of the rule which deals with those in the service of the public in Victoria would not cover the situation and clearly, the only part of s.49 that could apply would be the first described disqualification, i.e., “any office or place of profit under the Crown”.

Secondly, there are sections within Division 8, which is headed “offices and places of profit” and contains ss.49-61A (inclusive), which draw a distinction between “the Crown in right of the State of Victoria” and “the Crown”. Section 54 disqualifies a person who either directly or indirectly is concerned or interested in any contract entered into by or on behalf of the Crown in the right of the State of Victoria and such person shall not sit or vote in the Parliament and any such election of such member shall be void. Section 55 deals with a situation when seats become vacant when any member of the Council or Assembly does something. Section 55(a) refers to the contract position covered by s.54 and confines it to any bargain entered into by or on behalf of the Crown in the right of the State of Victoria. But then when dealing with any other office or place of profit under the Crown in s.55(d), the Parliament does not confine that to the Crown in the right of the State of Victoria. In my view, that provides some support for the conclusion that s.49, where the phrase is “the Crown” without any qualification, means Crown in any capacity.

The longstanding policy reasons for disqualification provide support for the conclusion I have reached. This was discussed by Mason CJ, Toohey and McHugh JJ in Sykes v Cleary.[8] In that case, the court was dealing with a public servant who was a teacher in the State system and who was elected to the Commonwealth Parliament. However, their Honours reasoning, which was agreed to by Brennan, Dawson and Gaudron JJ, equally applies to the present proceeding. Their Honours said –

“Moreover, the longstanding reasons for disqualifying Commonwealth public servants from membership of the Houses of Parliament has similar force in relation to State public servants. The risk of a conflict between their obligations to their State and their duties as members of the House to which they belong is a further incident of the incompatibility of being, at the same time, a State public servant and member of the Parliament.”

[8]Supra at 98.

No argument was advanced on behalf of Ms Buchanan that she did not hold an office or place of profit under the Commonwealth Crown on election day, nor was it argued that the taking of leave without pay altered the character of her office. In the light of what the High Court said, and I refer to p.97, they were not arguments open to her.

I am satisfied that s.49 does relate to those who hold any office or place of profit under the Commonwealth Crown.

B. Time the Disqualification Rule Operates

Mr Maxwell QC submitted that the plain meaning of s.49 was that the disqualification commenced to operate at the point in time when Ms Buchanan was entitled to sit in the Legislative Assembly. He submitted that that was no earlier than the date when she was declared the successful candidate pursuant to s.121(2). At that moment in time, she had ceased to hold any office with the Commonwealth Crown. He submitted that the concluding words declaring the election null and void would operate at that time. He submitted that that was the plain meaning of the section.

Section 49 does not expressly state at what time the disqualification rule commenced to operate.

Mr Hurley sought to rely upon the reasoning of the High Court in Sykes v Cleary, supra. The court held that the operative words in s.44(iv) were “incapable of being chosen” and that the word “chosen” extends to incorporate all the necessary steps in the electoral process. It followed that the disqualification precluded participation in that process, and that included nomination. The primary reason for reaching that conclusion was on the plain meaning of the words “being chosen”. As their Honours said at p.99 –

“Declaration of the poll is the announcement of the choice made; it is not the making of the choice.”

That happened earlier.

Their Honours went on to state a number of practical considerations which supported that conclusion.

In my opinion, the High Court’s reasoning based upon different language does not assist the petitioner in the present case.

The object of interpreting an Act of Parliament is to determine the intention of Parliament. The primary source of that intention is the words construed in their normal and natural every day meaning, subject to any matter which alters that meaning. The meaning is to be determined in accordance with the context and after considering the language of the Act, viewed as a whole. In carrying out this exercise, the purpose of the statute must be also taken into account. In Commissioner for Railways (NSW) v Agalianos,[9] Dixon CJ said –

“ … the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.”

[9](1955) 92 CLR 390 at 397.

Of course, that is not to say that one does not commence by considering the words in their normal and natural meaning, taken in context and referring to the Act as a whole.

In addition, by reason of s.35 of the Interpretation of Legislation Act 1984, the court is required, by s.35, to interpret a provision of an Act to give a construction that would promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object. See s.35(a). In performing that task, the court may take into account any extrinsic material which may assist in the interpretation. Whilst it is open to the court to consider all extrinsic material that is relevant, care must be exercised in considering and applying the material. As has been pointed out by the High Court in a number of recent cases, the words in the statute are the primary source of the intention, and if they are precise and unambiguous, they best declare the intention of the body responsible for the legislation. See Re Boulton; ex parte Beane[10] and Walker v InLine Couriers Pty Ltd.[11]
[10](1987) 162 CLR 514 at 518.
[11](1999) 73 ALJR 1084 at 1085.

In my opinion, s.49 does apply the disqualification rule at a time earlier than when Ms Buchanan would be entitled to sit in the Legislative Assembly. There are provisions in Division 8 of Part 2 which lead to that conclusion.

Section 60 deals with the removal of disqualification by reason of service in the Commonwealth Defence Forces. Section 60(1) deals with the disqualification applying at different times. The disqualification could only come about by reason of the operation of s.49. Section 60(1) deals with different times, namely, first, in respect of a person being disqualified or incapable of being elected; secondly, the time of election of any such person; and finally, being disqualified from sitting as a member. Section 61, which deals with the situation excusing a person from the effects of the disqualification rule, also deals with the effect of disqualification occurring at earlier times than the right to sit and covers the three times set out in s.60. These provisions make it clear that it was the intention of Parliament that s.49 could operate at an earlier stage than the time when the elected member could sit, and passed provisions removing the disqualification under s.60 and excusing the effect of the disqualification under s.61 to operate at various stages in the election process.

The policy reasons relied upon by Mason CJ, Toohey and McHugh JJ in Sykes v Cleary, supra, to support their conclusion that the time of the disqualification operated at the moment of nomination, equally apply in the present matter to reinforce the conclusion I have reached.

Their Honours, after rejecting the submission that the disqualification occurred at the time when the poll occurred, said this at p.99 –

“The interpretation just rejected would, if it were upheld, enable a public servant who falls within paragraph (iv) in s.44 to avoid disqualification by resigning from the relevant office of profit after the polling day but before the declaration of the poll. The public servant could be nominated and stand for election and, if he or she secured a majority of the votes, have an option to resign and be declared elected or not to resign and be disqualified. The adverse consequences this would have for the electoral process are an additional reason for rejecting the suggested interpretation. The inclusion in the list of candidates on polling day of the candidate who may opt for disqualification may well constitute an additional and unnecessary complication in the making by the electors of their choice. Furthermore, it is hardly conducive to certainty and speed in the ascertainment of the result of the election that it should depend upon a decision to be made by a candidate on or after polling day.”
(Emphasis added).

In my opinion, s.49 operates from the moment in time when the candidate nominates for election. It follows that Ms Buchanan was disqualified by reason of s.49 from the moment she nominated for the seat of Hastings because at that time, she did hold an office or place of profit under the Commonwealth Crown.

However, s.49 is subject to any express provision to the contrary in any Act.

The Excusing Provision – Section 61

Section 61 excuses certain holders of office from the effect of the disqualification rule. Whether or not it excuses Ms Buchanan depends upon whether the section applies to excuse a person who is a holder of any office or place of profit under the Commonwealth Crown. Mr Hurley submits on behalf of the petitioner that the section is confined to the Crown in the right of the State of Victoria. Sections 49 and 61 appear in Division 8 of Part 2 of the Act. Mr Hurley is adopting inconsistent approaches to the provisions. Section 49 imposes a disqualification rule and s.61 excuses the effect of the disqualification rule. It was passed to achieve that purpose.

Mr Maxwell QC submits that the operative part of the words dealing with the disqualifying engagement or employment are in similar terms to s.49 and if s.49 refers to the Crown in the right of the Commonwealth, then the same construction should be employed in relation to s.61.

As a general rule, where a word is used a number of times in legislation, it should be given the same meaning. The rule was stated by Hodges J in Craig, Williamson Pty Ltd v Barrowcliff[12] -

“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with a special force to words contained in the same section of an Act. There ought be very strong reasons present before the court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”

[12][1915] VLR 450 at 452.

Mason J, in Registrar of Titles (WA) v Franzon,[13] said –

“It is a sound rule of construction to give the same meaning to the same words appearing in different parts of the statute unless there is reason to do otherwise.”

Barwick CJ and Jacobs J agreed with his Honour.

[13](1976) 50 ALJR 4 at 6.

Is there any provision to suggest that s.61 should not be construed in the same way as s.49? Section 61 is included in the part of the Act which is an overall scheme, namely, disqualification rule, provisions exempting its application and a provision excusing its effect. In my view, the general rule should apply unless there is some strong indication in the legislation that the word “Crown” is confined to the State of Victoria.

Mr Hurley referred to the statutory presumption in the Interpretation of Legislation Act 1984. In my opinion, the contrary intention is to be found in the scheme of the provisions, the similarity of the words used and the purpose behind s.61 to excuse the effect of the rule. The consistency approach to interpretation supports that approach.

Secondly, Mr Hurley relied upon s.60 and submitted that if s.61 was to, in effect, cover the field thereby covering all employees of the Commonwealth, s.60 was superfluous and unnecessary. Mr Hurley referred to the general principle of interpretation that a statute should be construed to give effect to all the words of the statute and that a court should not proceed on the assumption that Parliament would enact a provision which was mere surplusage. Whilst I accept that that is the general rule, it has no application here. In my opinion, s.60(1) does have work to do because it goes on to provide that no member or person shall be liable to any penalty under the Act or any corresponding previous enactment by reason that the person was a member of the defence forces. Section 60(1) provides for a situation not covered by s.61. In my opinion, s.60 is not surplusage if s.61 is construed as applying to the Commonwealth Crown and its terms are not a reason to read down the word “Crown” to Crown in the right of the State of Victoria only in s.61.

Finally, Mr Hurley submitted that the concluding words of s.61 establish that the intention of Parliament was to confine s.61 to offices or places of profit under the Victorian Crown. The concluding words provide –

“ … On the election of any such person to be a member of the Council or the Assembly he shall cease to hold that office or place of profit under the Crown or to be so employed.”

Mr Hurley submitted that the Parliament of Victoria could not pass any law which would have the effect of terminating the contract of employment between Ms Buchanan and the Commonwealth agency which employed her. He submitted that it was beyond the legislative power of the Parliament of Victoria to legislate to that effect, that the concluding words had extra‑territorial effect and finally, that the Commonwealth had evinced an intention to cover the field and by reason of s.109 of The Constitution, the concluding words of that section were invalid.

The first question to consider is at what moment in time do the concluding words operate? They operate “on the election of any such person”. This raises the question at what point in time is a candidate elected?

In order to determine when the election occurred and a person is elected, it is necessary to consider the Electoral Act 2002. In my opinion, the election of a person takes place no earlier than the declaration that a particular candidate is to be elected. Until that declaration occurs, no-one has been elected. Mr Hurley submitted that the election occurred earlier and no later than election day. The Act deals in a step by step basis with the election of a member of Parliament. Part 5 of the Act deals with election procedure which commences with the writ for the simultaneous election (formerly general election) being issued by the Governor within seven days after expiration or dissolution of the Assembly. See s.61(1). The Act then deals with voting centres, nominations and candidates, arrangements for holding the elections, how‑to‑vote cards and the various procedural steps that have to be taken to reach the point of voting at the election on election day.

Part 7 deals with election results and the procedure that must be followed is that a declaration must be made by the election manager in public. If only one person stands for the seat, then the election manager must immediately, on the final nomination day, publicly declare the candidate to be elected and announce the name of that person. See s.121(1). Where there is more than one candidate, then the election manager must publicly declare the result of “the election” and announce the name of the candidate elected “as soon as practicable after election day”. See s.121(2). The election manager, once he has made the declaration, is required to advise the Electoral Commission of the result of the election. The Commission must publicly advertise the result, endorse on the writ the name of the candidate declared elected and return the writ to the Governor.

Consideration of these provisions, in my view, makes it clear that no person is elected until at least the declaration of the result pursuant to s.121 and there is, in my view, a fairly strong argument that “the election of any such person to be a member of the … Assembly” does not take place until the return of the writ to the Governor. However, it is not necessary for me to consider that question because in my view, the election of a member cannot occur any sooner than the declaration of the result. My conclusion is supported by the observations made by Powell J in McDonald v Keats.[14] His Honour said –

“It is my view that upon its proper construction, the word ‘election’ is not to be restricted to a declaration of a poll, but is apt to extend to each and every step in the election process from the issue of the writs to the various returning officers up to and including the declaration of the poll in respect of each electoral district.”

[14][1981] 2 NSWLR 268 at 274 et seq.

The provisions with which his Honour was dealing were very similar to the electoral process in this State.

At that moment in time, Ms Buchanan was not the holder of an office or place of profit under the Commonwealth Crown and accordingly, the concluding words of s.61 have no work to do in relation to her election. At the time of her election, the disqualification rule did not apply to her.

Mr Hurley drew attention to s.7(1) of the Parliamentary Salaries and Superannuation Act 1968 which provides that the salary payable to a member of Parliament is to commence from the date of the poll, i.e. election day. In my view, that provision does not alter what in my view is the clear meaning of the words in s.61, when viewed in light of the election process which is established by the Act.

Deane J in Sykes v Cleary, supra, whilst in dissent as to the result in the proceeding, nevertheless made some observations about the election process. His observations, in my view, confirm my conclusion. His Honour said at p.120 –

“As a matter of mere language, the words ‘being chosen’ are clearly capable of referring to the whole process of election commencing with nomination and finishing with either the declaration of a poll or the return of the writ (the wide construction). They are, however, also capable of being construed as referring to the declaration of the poll which represents the final step in the procedure for choosing the particular member of the Parliament (the narrow construction). Until that stage is reached and that final step is taken, events can intervene which preclude the candidate who will, when counting is completed and preferences are distributed, have an absolute majority of votes from ever being actually elected as a member of the House of Representatives. Most obviously, he or she can die. Alternatively, if a disqualifying event under s.44 of The Constitution intervenes, the disqualified person cannot be validly declared duly elected at a time when he or she is disqualified.”

His Honour, in the end, favoured the narrow construction. That is, in his opinion, being elected meant at the time the result is declared.

At the date of declaration of the poll, Ms Buchanan did not have any contract with her employer and accordingly, so far as she was concerned, the concluding words of s.61 did not apply.

This conclusion highlights the narrow basis of Mr Hurley’s submission. This court is not concerned with whether the concluding words operate in this case but whether they evince an intention on the part of the Parliament of Victoria to confine the operation of s.61 to an office under the Crown in the right of Victoria. In other words, if the concluding words could never apply to a situation where the member had some office or place of profit under the Commonwealth Crown, then it must follow that the Parliament of Victoria never intended in the operative part of s.61 to include the Commonwealth Crown.

Mr Hurley submitted that the latter words purported to have extra‑territorial effect. Victorian Acts apply to the residents of Victoria and those who conduct activities within this State. That is all s.61 purports to do. On no view does it have extra‑territorial operation and would not have extra‑territorial operation if it operated concerning Ms Buchanan and her employer, this State.

Mr Hurley referred to s.52(ii) of The Constitution which related to a head of power, which was an exclusive power given to the Commonwealth. It provides –

“52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace order and good government of the Commonwealth with respect to –
(ii)matters relating to any department of the public service the control of which is by this Constitution transferred to the executive government of the Commonwealth.”
(Emphasis added).

This provision does not apply. It is dealing with exclusive power in relation to departments of the public service transferred to the executive government of the Commonwealth by the States. The transferred departments are identified in s.69 of The Constitution and none of them relate to the employment of a public servant by the Commonwealth.

The Victorian Parliament has power to legislate with respect to the common law rights of parties, including contractual rights. The Parliament would have the power to terminate a contract between individuals and also a contract between a person and the State.

Mr Hurley then submitted that it was beyond the legislative power of the State of Victoria to make a law which would apply to the Commonwealth. It is clear that a State Parliament can make laws which apply to the Commonwealth. In The Commonwealth of Australia v The State of Western Australia,[15] the High Court was concerned with the question of whether a Western Australian Act could apply to Commonwealth land. Gleeson CJ and Gaudron J at p.409 said –

“It should at once be noted that, subject to express and implied constitutional limitations, the various polities in the Federation may enact legislation applying to each other and, also, to their property.”

[15](1999) 196 CLR 392.

Hayne J, at p.471, said –

“But it is clear that whatever the content or application of these principles, it is not right to say that State laws cannot by their own force bind the Commonwealth.”

There is a distinction between the power to modify the nature of executive power vested in the Crown and legislation which merely seeks to regulate activities in which the Crown chooses to engage. In Re Residential Tenancies Tribunal (NSW) ex parte Defence Housing Authority,[16] Dawson, Toohey and Gaudron JJ said –

“In Cigamatic (1962) 108 CLR 372, it was held that a State legislature had no power to impair the capacities of the Commonwealth executives, but at the same time it was recognised that the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens.”

[16](1997) 190 CLR 410 at 439.

It cannot be said as a bald proposition that the State of Victoria cannot make a law which affects the Commonwealth Crown. It follows that the concluding words of s.61 may therefore apply to some office or place of profit under the Commonwealth Crown. In other words, the provisions can apply in certain circumstances. Whether or not the provision could apply would depend upon whether the provision was seeking to interfere with the Commonwealth executive.

In my opinion, it cannot be said that the concluding words had no work to do, that that was appreciated by the Parliament of Victoria, and accordingly the operative part of s.61 did not apply to the Commonwealth Crown. On the contrary, it is my opinion that the Parliament of Victoria had the power to make a law which applied to the Commonwealth. It follows that the Parliament did not accept that it did not have the power and therefore was confining s.61 to the State Crown only. Further, that conclusion is supported by a consideration of s.6 of the Interpretation of Legislation Act 1984. It provides -

“6. Construction of Acts
(1)Every Act shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State of Victoria, to the intent that where a provision of an Act, or the application of any such provision to any person, subject matter or circumstance would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is, not in excess of that power and the remainder of the Act and the application of that provision to other persons, subject matters or circumstances shall not be affected.
(2)The provisions to this section are in addition to, and not in derogation of, any provision of any Act relating to the construction, or extent of the operation, of that Act.”

That section, in my view, makes it clear that the Parliament intended that s.61 should apply to the extent that the Parliament had the legislative power to do so. It cannot be said that the concluding words could never operate in relation to the Commonwealth, that the Parliament was aware of this and accordingly, the operative part of s.61 should be confined. Indeed, the effect of s.6 is to preserve the operative part of s.61, even if the concluding words were beyond power.

Finally, Mr Hurley submitted that the Commonwealth had by the Public Service Act 1999 covered the field and accordingly, there was an inconsistency between s.61 and the Commonwealth legislation and by reason of s.109 of the Australian Constitution, s.61 was invalid. Mr Hurley relied upon s.32 of the Commonwealth Public Service Act 1999. This section provided that if a person resigned as an Australian public service employee in order to contest an election and the resignation took effect not earlier than six months before the closing date for nomination and the person failed to be elected, the person was entitled to again be engaged as an employee in accordance with the regulations. Evidently, upon re-employment, the employee was entitled to employment at the same level prior to resignation. Section 32, as I have already stated, applied to a Commonwealth employee resigning to contest a State election. Mr Hurley submitted that that provision covered the field and accordingly, it was inconsistent with s.61. In my opinion, there is no inconsistency. A test of inconsistency was stated by Dixon J in Victoria v The Commonwealth[17] where his Honour said –

“When a State law, if valid, would alter, impair or detract from the operation of the law of the Commonwealth Parliament then to that extent it is invalid. Moreover, it appears from the term, the nature or subject matter of a federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from full operation of the Commonwealth law and so is inconsistent.”

[17](1937) 58 CLR 618 at 630.

In my opinion, the section in the Public Service Act was dealing with a completely different topic to what s.61 of the Victorian Act seeks to do. Section 32 is concerned with a situation where a person resigns, and contests an election without putting at risk his or her employment rights. It enables the failed candidate to return to his or her former employment. Section 61 is concerned with a completely different topic. The person is elected to Parliament but is disqualified by the disqualification rule in s.49. Section 61 excuses the disabling factor, permits the member to take his or her seat and goes on to provide that the disabling factor ceases to have any effect upon election.

In my opinion, Mr Hurley would be on better ground to argue that the Public Service Act 1999 deals exclusively with the employment of Commonwealth employees. Part 4 deals with employees. Section 20 is concerned with an agency head on behalf of the Commonwealth having all the rights, duties and powers of an employer in respect of public service employees in the agency. Section 21 deals with engagement; there are other provisions relating to classification, remuneration and conditions; and s.29 deals with termination. In addition, the Workplace Relations Act 1996 applies to the termination of an employment.

If Ms Buchanan had to rely upon the concluding words of s.61, then in my view there would be a very strong argument that they are inconsistent with the Public Service Act 1999 of the Commonwealth and accordingly, are invalid under s.109 of The Constitution. At the time when she was elected, the concluding words had no application to her.

For reasons stated, in my opinion, it cannot be said that the concluding words could have no operation at all with respect to the Crown in the right of the Commonwealth. If the concluding words were invalid as being inconsistent within the meaning of s.109 of The Constitution, nevertheless the balance of s.61 could operate.

Section 61 was enacted to excuse any person who was disqualified by reason of s.49 in certain circumstances, its purpose was to overcome the disqualification and in my view, full effect should be given to it.

In my opinion, s.61 does apply to any person who holds an office or place of profit under the Commonwealth Crown.

It follows that s.61 relieves Ms Buchanan from the disqualification resulting from s.49 and her election is not void by reason of her holding an office or place of profit under the Commonwealth Crown at the date of her nomination and election day.

Jurisdiction of Court of Disputed Return

Initially, counsel for Ms Buchanan raised the question of the jurisdiction of the Court of Disputed Returns to consider and determine the petition. However, in final address, Mr Maxwell QC only faintly suggested that the court may not have jurisdiction.

The additional jurisdiction given to the Supreme Court is expressed in s.133 which provides –

“133. Method of disputing elections
The validity of an election can only be disputed by means of a petition to the Court of Disputed Returns.”

The jurisdiction of the Court of Disputed Returns also includes a reference pursuant to s.143 of a question by the Assembly or the Legislative Council. See s.143(3). There are other provisions which give the Court jurisdiction in respect of disputes in the election process.

The present matter concerned a petition and by reason of s.133, the jurisdiction of the Court is to determine the “validity of an election”.

Mr Hurley, on behalf of the petitioner, in putting submissions concerning The Constitution Act 1975, sought to confine the word “election” to what takes place on election day. In my opinion, the jurisdiction of this court to determine the validity of an election goes beyond determining questions up to and including the holding of the election on election day.

For reasons already given, election means the process commencing with the issue of the writ pursuant to s.61 of the Act and closing at the earliest with the declaration of the elected candidate, and maybe with the return of the endorsed writ. It is unnecessary for me to decide whether the jurisdiction ceases with the declaration or the return, as the relevant matters all occurred prior to the declaration.

Reference was made to a decision of Vincent J in Ellis v Atkinson.[18] In that case, the plaintiffs applied to the Supreme Court for a declaration that the seat occupied by the defendant in the Legislative Council had become vacant by the reason of the fact that he had engaged in activities in contravention of s.55 of the Constitution Act. Section 55 provides that a seat may become vacant, for example, because the member became concerned or interested in a contract with the Crown or became bankrupt. Vincent J held that the Supreme Court did not have jurisdiction to hear and determine the plaintiffs’ application because that was a matter for the Parliament of Victoria. His Honour pointed out that it is the Parliament which decides questions concerning the right of a member to sit and vote and it is only Parliament that can give jurisdiction to a court to interfere with its exclusive jurisdiction. He held that in that case, the court had not been given jurisdiction to determine the question. In my opinion, his Honour’s decision does not apply to the present situation. The petition here puts in question the validity of the election up to just prior to the declaration of the result of the election, on the ground that Ms Buchanan was disqualified by reason of s.49 of the Constitution Act 1975.
[18][1998] 3 VR 175.

In my opinion, this court, as the Court of Disputed Returns, has jurisdiction to determine that question. The reasoning of Dawson J in Sykes v Cleary[19] where objection was taken to the jurisdiction of the High Court, which his Honour dismissed, supports my conclusion.
[19](1992) 66 ALJR 577.

Conclusion

It follows that in my opinion, s.61 of the Constitution Act 1975 applies to the situation of Ms Buchanan and accordingly, her election cannot be declared void by reason of her infringement of s.49.

Subject to submissions by counsel, I propose to make the following order –

(i)That the first respondent be removed as a party to the proceeding;
(ii)that the petition filed with the Prothonotary of the Supreme Court of Victoria on 22 January 2003 be dismissed.

I will hear the parties on the question of costs.

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Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156

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Sullivan v Okeno [2013] NSWADT 12

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Sullivan v Okeno [2013] NSWADT 12

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Alexander v Minister for Home Affairs [2022] HCA 19

Sykes v Cleary [1992] HCA 60

Bull v Attorney-General (NSW) [1913] HCA 60

[2003] VSC 156

21 May 2003