Re Brennan; Ex parte Muldowney

[1993] HCA 53

HIGH COURT OF AUSTRALIA

MASON CJ

RE THE HONOURABLE JUSTICE SIR GERARD BRENNAN AND ANOR

(1993) 67 ALJR 837

27 September 1993

Orders

Application for an order nisi for a writ of certiorari and a writ of mandamus dismissed.

The prosecutor to pay the costs of the second respondent.

Decision

MASON CJ This is an application for an order nisi for mandamus and certiorari. The application arises out of two petitions presented to the Court of Disputed Returns by the prosecutor in which he sought relief in respect of the general election to the House of Representatives held on 13 March 1993, the supplementary election for the Division of Dickson on 17 April 1993 and the election of six Senators for the State of South Australia on 13 March 1993.

2. The thrust of the prosecutor's case in both petitions was that the Australian Electoral Commissioner, the second respondent in the proceedings before me, sought to prevent advocates of informal voting from attempting to influence voters to cast an informal vote and thereby "committed undue influence and other illegal practices based on s.329A" of the Commonwealth Electoral Act 1918 (Cth) ("the Act").
That section provides:

"(1) A person must not, during the relevant period in relation to a House of Representatives election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot paper otherwise than in accordance with section 240. Penalty: Imprisonment for 6 months. (2) In this section: 'publish' includes publish by radio or television."

The prosecutor contended that the section was ultra vires and claimed declarations that the three elections were absolutely void or, alternatively, that so much of the elections for the House of Representatives and the election of six Senators for South Australia as may have been affected by the matters complained of were void and that each of the candidates whose election or return was so affected was not duly elected.

3. The Commission applied by way of summons in each petition for orders setting aside the petitions on various grounds. The first ground was that the prosecutor was not at the time of the relevant elections on the Roll for the Division of Boothby or any other Division in South Australia and was not qualified to vote for the election in the Division of Boothby and for the election of Senators for South Australia. The second ground was that the prosecutor, even if qualified to vote in an election for a Division for a member of the House of Representatives, was not able to challenge elections held in respect of Divisions other than that for which he was qualified to vote. The third ground was that, as s.329A of the Act had not been declared invalid, the Court of Disputed Returns was not empowered to declare an election invalid on the grounds alleged in the petition.

4. The first two grounds relied upon by the Commission were based on s.355(c) of the Act which provides:

"Subject to section 357, every petition disputing an election or return in this Part called the petition shall: ... (c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment".

Section 358(1) provides:

"Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with."

5. As it was common ground that the prosecutor's name did not appear on a Roll on the dates on which the relevant elections were held,
Brennan A.CJ, who constituted the Court of Disputed Returns, held that the prosecutor was not qualified to vote at any of those elections and that there could be no proceedings in either of those petitions. The prosecutor now seeks a writ of mandamus directed to Brennan A.CJ sitting as the Court of Disputed Returns requiring him to hear and determine the claims for relief in the two petitions. The prosecutor also seeks certiorari quashing certain findings made by his Honour.

6. By s.78B Notices filed and served on 3 September 1993, the prosecutor has also raised two constitutional issues. The
prosecutor's contentions are as follows.

(1) That the vesting in the High Court of Australia of the power to determine disputed returns under s.354 of the Commonwealth Electoral Act 1918 is contrary to the separation of powers between the Executive, Legislature and Judiciary contained in the Constitution. (2) That a Justice of the High Court of Australia is an "officer of the Commonwealth" for the purposes of s.75(v) of the Constitution.

The prosecutor's first contention, that the vesting of the jurisdiction of the Court of Disputed Returns in the High Court of Australia contravenes the doctrine of separation of powers, relies on the contention that the power to determine disputed elections is a legislative power or one ancillary to the legislative function. Accordingly, it is said, in conformity with the Boilermakers'
Case ((1) Reg. v. Kirby; Ex parte Boilermakers' Society of
Australia (1956) 94 CLR 254 (High Court); (1957) 95 CLR 529 (Privy Council).), such a power cannot be conferred on the High Court, which exercises the judicial power of the Commonwealth. Some support for the proposition that the power to determine disputed elections is legislative or ancillary to the legislative function can be found in two judgments of this Court: Holmes v. Angwin ((2) (1906) 4 CLR 297.) and Webb v. Hanlon ((3) (1939) 61 CLR 313.). Those cases concerned the question whether a decision of a State Supreme Court, sitting as the Court of Disputed Returns in relation to a State election, was subject to an appeal to the High Court under s.73 of the Constitution. The Court held in each case that no appeal lay because, in exercising its power in relation to disputed elections, the Supreme Court was not a "Supreme Court" within the meaning of s.73.

7. In Holmes, Griffith CJ considered that the effect of the Electoral Act 1904 (W.A.) was to create a new tribunal, consisting of a judge of the Supreme Court as a persona designata, "to whose arbitrament the necessary questions of fact are to be referred for the
assistance of the House of Parliament" ((4) (1906) 4 CLR, at pp.306-307.). Barton J observed that power to enforce a decision of the Court remained with the House concerned and was not conferred by
the Electoral Act ((5) ibid., at p.308.). In his view ((6)
ibid., at p.309.):

"The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants. It is that domestic jurisdiction which in this State has been transferred first to the Court of Disputed Returns, afterwards to the Supreme Court, but in the latter case with the retention of provisions which of themselves show that the character of the tribunal and the method of procedure are such as did not characterise the ordinary tribunals of justice."

8. In Webb, each Justice followed Holmes and held that a decision of a State Supreme Court sitting as an election tribunal was not a judgment or order of a Supreme Court within s.73 of the Constitution. Evatt J noted the administrative, rather than judicial, nature of an election tribunal ((7) (1939) 61 CLR, at p.330.), and Starke J
stated that ((8) ibid., at p.324.):

"the whole inquiry, whether before the Elections Tribunal or the Full Court (to which an appeal was provided) is an inquiry merely incidental to, and for the purposes of determining, the right of some person to sit in Parliament: see Holmes v. Angwin ((9) (1906) 4 CLR, at p.306.) ".

The reasoning (although not the result) in Holmes was the subject of criticism by Dixon J in Medical Board of Victoria v. Meyer ((10) (1937) 58 CLR 62, at p.97.) and, more recently, in the judgments in Hilton v. Wells ((11) (1985) 157 CLR 57.).

9. The second constitutional question raised by the prosecutor is whether prerogative relief (in particular, mandamus) will lie against a Justice of the High Court. It is said that a Justice of the High Court is an "officer of the Commonwealth" within s.75(v) and is, therefore, amenable to mandamus. The outcome of this argument is in no small measure dependent on the result of the first constitutional question raised because, if the power to determine disputed elections is a judicial power conferred on the High Court as an additional jurisdiction, then, in my view, s.75(v) does not confer jurisdiction on the Court to issue a prerogative writ directed to a Justice of the Court in that capacity: Federated Engine Drivers' and Firemen's Association of Australasia v. Colonial Sugar Refining Co. Ltd. ((12) (1916) 22 CLR 103, at p.117. See also R. v. Murray and Cormie (1916) 22 CLR 437, at p.453.).

10. The first constitutional question is interesting and important. If it were necessary to decide the question I would take appropriate action to refer it to the Full Court, along with the second question, the answer to which depends upon the answer to the first question. However, I have decided that I should not take this course because, even if mandamus and certiorari would lie against his Honour, on the view I take of the arguments of the prosecutor on the merits of the application for the order nisi, the application should be refused.

11. His Honour gave comprehensive reasons for his conclusion that the prosecutor was not qualified to vote at any of the relevant elections, his conclusion being based primarily on the provisions of Pt VII of the Act headed "Qualifications and Disqualifications for Enrolment and for Voting", particularly s.93(1) and (2), which prescribe the conditions of entitlement to be enrolled and the conditions of entitlement to vote. They include the requirement that, in order to be entitled to vote, the person be "on the roll for a Division": see s.93(2). It is unnecessary to repeat in any detail what his Honour said in his reasons for judgment. However, I should briefly indicate why I think his Honour was correct.

12. Section 355(c) of the Act requires that an electoral petition be signed by a person "qualified to vote" in the election challenged. If a petition is not so signed, then no proceedings may be had on it ((13) s.358.). The phrase "qualified to vote" is not defined in the Act, but Pt VII of the Act, according to its heading, deals with "Qualifications and Disqualifications for Enrolment and for Voting". Section 93, the primary section dealing with enrolment and voting, draws a clear distinction between persons "entitled to enrolment" and persons "entitled to vote"; entitlement to enrolment does not amount to an entitlement to vote. The section does not use the term "qualified to vote"; however, the heading of the Part, which is part of the Act ((14) Acts Interpretion Act 1901 (Cth), s.13(1).), and the very subject-matter of s.93 make it clear that the section is concerned with qualifications for enrolment and qualifications for voting. Indeed, I do not consider that it is possible to read s.93(1) and (2) otherwise than as prescribing qualifications to be enrolled and to vote respectively.

13. Notwithstanding the prosecutor's submission that different words have different meanings, it is clear that, in this case, the Parliament has used "qualified" and "entitled" interchangeably. This conclusion is supported by the reference in s.95AA(1), where
"qualified Norfolk Islander" is defined as a person who:

"(a) resides in Norfolk Island; and (b) would be qualified for enrolment under s.93 if he or she lived in a Subdivision and had so lived for a period of one month last past". (emphasis added)

Thus the legislature has here used "qualified for enrolment" despite the fact that s.93 is expressed in terms of "entitled to enrolment". Likewise, in s.99, the term "qualified for enrolment" is used ((15) See also s.163.).

14. Further support for this construction of the Act is found in s.361(1), which provides that:

"The Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of any Roll."

The wording of this section indicates that the Parliament contemplated that, in inquiring whether the petition is duly signed, the Rolls are to be final; that is, the petitioner must be on the Roll and the Roll must be assumed to be correct.

15. To construe the term "qualified to vote" in the way contended for by the prosecutor would, in a sense, require the Court to go behind the Electoral Roll and determine whether a person who is not on the Roll is nonetheless entitled to be on the Roll. This conflicts with the clear terms of s.361(1) and undermines the principles which support the separation of disputes about the validity of an election from disputes concerning the correctness of the Electoral Roll ((16) See Berrill v. Hughes (1984) 59 ALJR 64, at p.66; In re Berrill's Petition (1976) 134 CLR 470, at p.474.).

16. Counsel for the prosecutor referred to a number of United States decisions ((17) Meffert v. Brown (1909) 116 SW 779; Piuser v. Sioux
City (1935) 262 NW 551; Gilbert v. Breithaupt (1940) 128 ALR 1111.) referred to in the prosecutor's outline of submissions before Brennan A.CJ, to which his Honour, so it is said, failed to give sufficient weight. These cases support the proposition that, in the context of certain State constitutions, a person can be a "qualified elector" even if not registered to vote. Each case involved voting qualifications prescribed in a State constitution, the context being very different from that before his Honour. Before his Honour, it was conceded that the prosecutor did not rely on s.41 of the Constitution as having conferred upon the prosecutor a right to
vote. Therefore, his Honour's failure to follow the American decisions does not demonstrate error on his part.

17. Accordingly, the prosecutor has failed to make out a prima facie or arguable case that his Honour actually or constructively failed to exercise jurisdiction. Likewise, the prosecutor has failed to make out a prima facie or arguable case that there was any jurisdictional error or error on the face of the record which would attract relief by way of certiorari.

18. The application is refused.