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McKenzie v The Commonwealth

McKenzie v The Commonwealth

Case [1984] HCA 75 27 November 1984

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HIGH COURT OF AUSTRALIA

Gibbs C.J.

McKENZIE v. COMMONWEALTH OF AUSTRALIA AND OTHERS

27 November 1984

Decision

GIBBS C.J. The plaintiff, Mr McKenzie, is a candidate for election as a senator for the State of Queensland. By his statement of claim he claims a declaration that the sections of the Commonwealth Electoral Act 1918 (Cth), as amended ("the Act"), which authorize the use at a Senate election of a ballot paper in Form E in the schedule to the Act are beyond the power of the Parliament and an injunction restraining the defendants from distributing or making available to electors in the State of Queensland ballot papers in Form E in the schedule to the Act. The practical effect of such an injunction, if it were granted, would be to prevent the holding of the election on 1 December.

2. The plaintiff argued his own case and did so very clearly. The submissions which he has made are understandable and by no means irrational. The provisions which he seeks to have declared invalid are of recent origin and, so he contends, place him, as a candidate who belongs to no political party, at a disadvantage in his bid for election.

3. By s.209(1) of the Act, ballot papers to be used in a Senate election shall be in Form E in the schedule. The form directs the voters to vote in either of two ways. The ballot paper is divided horizontally by a black line. Below the line, the names of the individual candidates appear with a square opposite each; above the line are squares intended to simplify voting for voters who wish to follow a group ticket. Provision is made by s.168 of the Act for candidates to claim to have their names grouped in the ballot papers. In printing the ballot paper the names of the candidates included in groups are to be printed before the names of candidates not included in groups but the order of the groups is determined in the manner provided by s.213, in effect by lot: s.210(a) and (c). Except as otherwise provided by the regulations, a square is to be printed on the ballot paper opposite the name of each candidate: s.210(f) and Form E. Where the names of candidates are included in a group and those candidates lodge with the Australian Electoral Office a statement in accordance with s.211 indicating their order of preferences or orders of preferences in relation to all the candidates, they are taken to have a group voting ticket or tickets, and a square is to be printed on the ballot papers for use in the election above the names of those candidates: s.211(4) and (5). Such square appears above the line dividing the ballot paper: see Form E. The voter may mark his vote either by placing numbers in the squares opposite the names of the candidates below the line or simply by placing the figure "1" or a tick or a cross in one only…

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 McKenzie v The Commonwealth

Details

AGLC: McKenzie v The Commonwealth [1984] HCA 75
Case: [1984] HCA 75
Decision Date: 27 November 1984

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the applicant, McKenzie, against the Commonwealth of Australia. The dispute concerned the validity of a notice issued by the Commonwealth under section 39B(1) of the Judiciary Act 1903 (Cth) to the applicant, requiring him to attend before an officer of the Australian Federal Police for examination concerning an alleged contravention of the Crimes (Traffic in Heroin) Act 1980 (Cth). McKenzie sought a declaration that the notice was invalid and that the Commonwealth had no power to issue it.

The central legal issue before the High Court was whether section 39B(1) of the Judiciary Act, which confers original jurisdiction on the Federal Court of Australia in matters arising under the laws of the Commonwealth, could be invoked by the Commonwealth itself to compel a citizen to attend for examination in relation to a potential criminal offence. Specifically, the Court had to determine if the Commonwealth could use this provision as a basis for issuing such a notice, or if it was intended for use by individuals seeking to enforce Commonwealth law.

Gibbs C.J. reasoned that section 39B(1) of the Judiciary Act confers jurisdiction on the Federal Court, but it does not grant power to the executive government to compel a person to attend for examination in the absence of specific statutory authority. His Honour found that the notice issued by the Commonwealth was not authorised by any provision of the Crimes (Traffic in Heroin) Act 1980 or any other Commonwealth legislation. The power to compel attendance for examination in criminal investigations is a significant one that must be clearly and unambiguously conferred by statute, and such a conferral was absent in this instance.

The High Court allowed the appeal and declared that the notice issued by the Commonwealth to the applicant was invalid.

Orders