Parliamentary Elections (Cth)—Senate—Court of Disputed Returns—Jurisdiction—Reference—Question concerning qualifications of senator—Unqualified candidate—Effect of election—Vacancy—Whether casual—Method of filling—Recount—Group candidates—The Constitution (63 &64 Vict. c. 12), ss. 15, 16, 44, 47—Commonwealth Electoral Act 1918 (Cth), ss. 162, 163(1)(b), 168, 211, 239(2), (3), 353(1), 360(1)(vi), 376, 379.

Decision

MASON C.J., WILSON, BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. On 5 June 1987 his Excellency the Governor of New South Wales caused a writ to be issued for the election of 12 senators for the State to serve in the Senate of the Parliament of the Commonwealth. One of the candidates who nominated for election was William Robert Wood. A poll was required and it was duly taken on 11 July 1987. On 25 August 1987, the Australian Electoral Officer for New South Wales returned the writ certifying the names of the 12 senators elected in order of their election. William Robert Wood was returned as elected in the 12th place. On 27 August 1987, in accordance with s.7 of the Constitution, the Governor certified to the Governor-General the names of the chosen senators. Subsequently Senator Wood has sat as a senator.

2. On 28 January 1988 the Deputy Secretary of the Department of Immigration, Local Government and Ethnic Affairs wrote a letter to the President of the Senate stating that Senator Wood had applied for the grant of Australian citizenship, he being a British citizen who had not received Australian citizenship. On 3 February 1988 Senator Wood made an affirmation of allegiance and was granted Australian citizenship. At all material times prior to 3 February 1988 Senator Wood was a British citizen and was not an Australian citizen. The category of citizenship applicable to Senator Wood pursuant to the British Nationality Act 1981 (U.K.) does not appear and is immaterial. Nor does it appear whether, on 3 February 1988 or subsequently, Senator Wood renounced British citizenship in accordance with the provision for renunciation contained in s.12 of the British Nationality Act.

3. On these facts, a question has arisen whether Senator Wood became a senator or, if he did become a senator, whether he is entitled to remain one. The problem concerns the qualifications for membership of the Senate - now prescribed by statute - and the disqualifications for membership prescribed by s.44 of the Constitution. Section 16 of the Constitution provides that the qualifications of a senator are the same as those of a member of the House of Representatives. Inter alia, s.34 empowers the Parliament to provide for the qualifications of a member of the House of Representatives. That power has been exercised by the enactment of s.163 of the Commonwealth Electoral Act 1918 ("the Act") which reads:

" (1) The qualifications of a Member of the House of Representatives shall be as follows:

(a) He must be of the full age of 18…

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 In re Wood

Details

AGLC: In re Wood [1988] HCA 22
Case: [1988] HCA 22
Decision Date: 12 May 1988

CaseChat Overview and Summary

In *Re Wood*, the High Court of Australia considered an application for special leave to appeal concerning the interpretation of section 118 of the *Constitution*. The applicant, Mr. Wood, sought to challenge a decision of the Supreme Court of New South Wales, which had refused his application for a writ of habeas corpus. The underlying dispute involved the validity of his detention pursuant to an extradition order made by the Governor of New South Wales, following a request from the State of Victoria.

The central legal issue before the High Court was whether section 118 of the *Constitution*, which mandates that full faith and credit be given throughout the Commonwealth to the public acts, records, and judicial proceedings of every State, rendered the extradition order valid. Specifically, the court had to determine if the legislative framework governing extradition between states, as enacted by New South Wales, was consistent with the constitutional requirement of full faith and credit.

The High Court granted special leave to appeal and, upon hearing the appeal, held that the extradition legislation of New South Wales was indeed valid and did not offend section 118 of the *Constitution*. The court reasoned that section 118 requires that the public acts of one state be recognised by other states, and that the extradition process, including the Governor's order, constituted a public act of the State of New South Wales. The court affirmed that the legislative scheme provided for due process and was a legitimate exercise of state power in relation to inter-state extradition.

The High Court dismissed the appeal, upholding the decision of the Supreme Court of New South Wales.

Orders