Re Senator Robert Wood

[1988] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Corrrrnonwealth Electoral Act

1918-1980

Registry	No C3 of 1988
Questions referred pursuant to
section 377 of the Corrrrnonwealth Electoral Act 1918

RE SENATOR ROBERT WOOD

MASON CJ

WILSON J

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

Wood(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 ~..ARCH 1988, AT 10.18 AM

Copyright in the High Court of Australia

ClTl/1/RB 1 11/3/88

MR G. GRIFFITH, QC, Solicitor-General for the Connnonwealth:

If the Court pleases, I appear for the

Attorney-General for the Connnonwealth.

(instructed by the Australian Government Solicitor)

The terms of Your Honour's order of 2 March

grants leave to name counsel who then appeared for

the Attorney to appear.	I seek to appear in
substitution for him.

MASON CJ:  Yes.

MR K. MASON, QC, Solicitor-General for New South Wales:

If Your Honour pleases, I appear for the

State of New South Wales.

(instructed by Crown Solicitor for New South Wales)

Your Honour, there has been some discussion amongst

those present at the bar table as to a suggested order

of submissions. I do not know what the Court's

view is on the matter.

MASON CJ:	I do not think the Court has a view at the moment.
MR MASON:	Do Your Honours wish me to indicate that now,

or to take the appearances?

MASON CJ:	Yes, you may as well do so.
MR MASON:	The suggestion of those present is that I would

address first, followed by my learned friend Dr Griffith,
followed by Mr Robertson for the Electoral Connnission,

followed by Mr Herbert for the State of Queensland.

Messrs Mackerras and Haldane-Stevenson have indicated

that they are content to put their addresses at any

appropriate stage and the suggestion is that they

follow in the order that I have mentioned

thereafter, followed by Miss Coombs who appears for

Mrs Nile and Mr Kenzie who appears for Senator Wood.

There is some factual material which Miss Coombs

wishes to explore at an early stage as to whether

that material is before the Court on the reference.

MASON CJ:  Yes. When you say at an early stage, it is

intended to raise that matter first, is it?

MR MASON:  Yes. I understand she wants to raise that at the

outset.

(Continued on page 3)

ClTl/2/HS	11/3/88
Wood(2)

MASON CJ: Yes. Yes, well, the order of addresses indicated

by the Solicitor for New South Wales is acceptable

to the Court.

MR R. KENZIE, QC:  May it please the Court, I appear for

Senator Wood. Leave was granted pursuant to

section 378 on the last occasion. (instructed

by R.L. Whyburn & Assoc)

MASON CJ:,Yes, Mr Kenzie.

MR A. HERBERT:  If it please the Court, I appear for the

Attorney-r-enera1 of tt-.e <::tate of Qu 0 ensland.

An appearance was entered on the last occasion

pursuant to section 78 of the JUDICIARY ACT.

(instructed by Crown Soli<'itnr fnr Q11eensl!'lnd'

MASON CJ: Yes, Mr Herbert.

MISS J. COOMBS: If the Court pleases, I now appear for

Mrs Nile. Leave was granted to Mr O'Sullivan

on the last occasion.	(instructed by Dearn,
O'Kane	& Associates)

MASON CJ: Yes, Miss Coombs.

MR A. ROBERTSON:  May it please the Court, I appear for the

Australian Electoral Conmission. (instructed by

Australian Government Solicitor)

MASON CJ: Yes, Mr Robertson. Now, Mr Mackerras and

Mr Haldane-Stevenson, you announce your appearances?

I did make it clear, I thought, or reasonably

clear on the preliminary hearing that the parties

were expected to file comprehensive written
submissions and as far as Mr Mackerras and

Mr Haldane-Stevenson are concerned Ihad expected that

the written submissions would in fact cover all

that you wished to put to the Court. In the course

of your applications for leave to intervene I pointed

out to both of you that you had no direct, or

immediate interest in the case of the kind that

the other applicants hand. And therefore it is

our view, subject to hearing anything from you

in opposition to that view, that you should rest

content with the written submissions that you have

filed. Do you accept that?

REV J.P. HALDANE-STEVENSON:  I think the Registrar has

circulated to Your Honours - - -

MASON CJ:  He has. WP have your written submissions.

REV HALDANE-STEVENSON:  Supplementary, this morning, which I

brought in.

CIT2/l/JM	3	11/3/88
Wood( 2)

MASON CJ:	They were circulated this morning.
REV HALDANE-STEVENSON:	Yes, because I read Mr Mackerras'

submission and I had some additional observations

to make.

MASON CJ: Yes. Well, we have a copy of that.

REV HALDANE-STEVENSON: Otherwise, I, of course, accept

Your Honours' ruling.

MASON CJ: Thank you. And you, Mr Mackerras?

MR M. MACKERRAS:  Subsequent to my written statement, a point

which I think is important has occurred to me and

I would like to address the Court for perhaps

five minutes, but that .w·ould be all I .would need.

MASON CJ: Well, can you put it in writing, Mr Mackerras?

(Continued on page 5)

CIT2/2/JM	4	11/3/88
Wood(2)

MR MACKERRAS:  Do you mean now or after the Court?

MASON CJ: Well, at some later stage. You can put it in

writing during the course of the day.

MR MACKERRAS: All right. Thank you.

MASON CJ:  Yes, Mr Solicitor for New South Wales or, perhaps,

Miss Coombs, first. We will deal with the matter

that you seek to raise initially.

MISS COOMBS:  Thank you, Your Honour. First, Your Honour,

I wish to call on notices to produce which have been issued to the parties.

MASON CJ:  Now, Miss Coombs, is this an attempt to raise for

consideration in this case the issue that was the subject of the petition earlier dealt with by the

Court of Disputed Returns?

MISS COOMBS: 

No, not exactly, Your Honour. It is sought to

deal with some of those matters and some other matters.
It is sought to raise any other disability that

Senator Wood may have other than the one that is

raised by the documents before the Court.

MASON CJ: Well, now, that is the essence of the problem. The

Court is sitting, pursuant to a reference of questions

by the President of the Senate. The Court does not

have jurisdiction to go beyond the terms of that

reference.

MISS COOMBS:  If Your Honour makes that ruling, that is

accepted, Your Honour, but I did wish to - - -

MASON CJ: That is prima facie the view the Court takes.

Now, you can advance to us now, if your wish to,

any argument to the contrary of that proposition

and we will consider it.

(Continued on page 6)

ClT3/l/SH 5 11/3/88

Wood(2) MISS COOMBS

MISS COOMBS:  Thank you, Your Honour. The argument that

we wish to put is firstly that it is, in our

submission, proper fqr the Court to be in

full possession of all the facts relating to

this candidate before the matter is dealt with;

th.at there are certain remedies which are

appropriate in the event of the candidates

disabilities being publicly known. Now it is

our submission that there is some evidence that

certain aspects of the candidates disabilities

were publicly known but perhaps not the actual

particular aspect that has been raised specifically

by this matter and I refer Your Honour to the

case of WEDGEWOOD-BENN and the other cases

referred to there, that certain remedies apply

when a candidate has public defects - publicly

known defects, patent defects as opposed to

latent defects as they have been referred to in

the submissions. And it was for this reason

that my client sought to raise these other aspects

and that is. the main reason why the notices to

produce were issued and the affidavits prepared.

MASON CJ: Yes, do you wish to add anymore to this

submission?

MISS COOMBS:  I think that is the basis of it, Your Honours.

MASON CJ: Yes, very well.

MISS COOMBS:  Excuse me, if Your Honour pleases, there is

one other aspect. Our submission is that

incapacity is one; it is not - that the whole scheme

of the CONSTITUTION and the ELECTORAL ACT, which

flows from it, is that a candidate should be able

to do his job. Now the CONSTITUTION puts it that

you must not have allegiance to a foreign power.

Now the ELECTORAL ACT specifies a particular thing

on the~positive side, that is, that you must be

T4	a citizen. That is an aspect of loyalty. And
our submission is that all these things are one;
that criminality is an aspect of disloyalty; that
citizenship is an aspect of loyalty; that to be
bankrupt or to be in receipt of a pension or
public office payment is something which strikes
at loyalty because it means you are subject to
influence. Being under age is an aspect of inability to do your job and it strikes at the
ability to have proper allegiance and this is why
we submit that these things are relevant.

MASON CJ: Yes, thank you, Miss Coombs. The Court will

shortly adjourn in order to give consideration to

the question that has arisen.

AT 10.32 AM SHORT ADJOURNMENT

ClTS/1/SR	6	MISS COOMBS	11/3/88
Wood(2)
UPON RESUMING AT 10.38 AM:

MASON CJ:  The Court is of opinion that it has no

jurisdiction to go beyond the terms of the reference

made by the President of the Senate under

section 377 of the COMMONWEALTH ELECTORAL ACT.

Question (a) in paragraph 3 - that reference

raises the question:

whether there is a vacancy in the representation

of New South Wales in the Senate for the place

for which Senator Wood was returned -

by reason of the materials in the reference in

itself.

Yes, Mr Solicitor for New South Wales.

MR MASON: If the Court pleases. May I commence by, briefly,

running over the constitutional and statutory

provi~ions in a partly historical context on three

topics; qualifications, the electoral system in

the Senate and the power to resolve controversies.

So far as qualifications are concerned the

constitutional provision in regard to senators

is found in section 16 which refers one to section 34,

the qualification rules for the House of Representatives.

In the 1902 COMMONWEALTH ELECTORAL ACTS and in

the 1918 COMMONWEALTH ELECTORAL ACTS, when first

enacted, there was no displacement of the

constitutional provision for qualifications. The

provision in the 1918 Acts, when passed, were

section 69 which simply stated that to entitle

a person to be nominated as a senator or a

~ember of the House of Representatives he must

be qualified under the CONSTITUTION to be elected

as a senator or a member of the House.

On our researches the first statutory prov1s1on

was in Act No 20 of 1925, the COMMONWEALTH ELECTORAL ACT

section 4,which repealed section 69 which I have

just read and stated that the qualifications of

a member of the House of Representatives must be

various stated provisions. Section 69 became 162

or 163 - just in case Your Honours have not observed

it - in the print of the COMMONWEALTH ELECTORAL ACT

at page 231 there is a helpful table showing the

renumbering of the COMMONWEALTH ELECTORAL ACT which

occurred in 1984 when various provisions which

had been inserted as section 7~ _ and the like

were renumbered in the sequential form they now

appear.

ClT6/l/AC	7	11/3/88
Wood(2)

MR MASON (continuing):  And section 69,one gets from the

table,became 163 in the present Act. And it is

162 and 163 which make the provision now:

162.       No person shall be capable of being

elected as a Senator., .... unless duly nominated.

163(2) To entitle a person to be nominated

as a Senator ..... he must have the qualifications

specified in sub-section (1).

And then they are stated and relevantly the requirement to be an Australian citizen.

There are other provisions in the CONSTITUTION

dealing with disqualification and vacancies and

providing expressly for the consequences of those

matters. So far as vacancies are concerned, 19,

20, 37 and 38, dealing with resignation and absence

and the CONSTITUTIONlproviding that in certain

events the place shall become vacant. So far as

disqualification is concerned, 43, 44 and 45, which

deal with the categories of initial disqualification

and supervening disqualification and the

consequences are stated in terms of being:

incapable of being chosen or of sitting

that is 43 and 4~ and.the place becoming vacant

section 45.

In RE WEBSTER, (1975) 132 CLR 270, at 279,

Sir Garfield Barwick, when speaking of section 45

of the CONSTITUTION - it is a very short passage -

said, in the middle of the page, 279:

(Continued on page 9)

ClT7/l/ND	8	11/3/88
Wood(2)
MR MASON (continuing):

The disqualification under s.44(v)

provided of resolving the facts and their legal consequences. There being penal consequences of its breach, the paragraph

as effected by s.45 of the CONSTITUTION,
is automatic and does not depend upon a

decision of the House or of the Court of

should receive a strict construction.

So much for qualifications. Dealing with the

electoral system in the Senate, the constitutional

provisions of present relevance would appear to

be sections 7 and 9. Section 7 stating what was

desc~i~ed by Sir Samuel Griffiths as a dominant

prov1s1on:

The Senate shall be composed of senators

for each State, directly chosen by the people
of the State, voting, until the Parliament
otherwise provides, as one electorate.

And, section 9, empowering:

the Parliament of the Commonwealth may make

laws prescribing the method of choosing

senators, but so that the method shall be

uniform for all the States.

That power was naturally taken up at a very early

stage but perhaps it is of some relevance to note

that until 1919 it was a first past-the-post voting

system for election to the Senate. The history

of the change is mentioned in a passage in a judgment
of this Court in MULCAHY V PAYNE, (1920) 27 CLR 470

at pages 479 and 480. I do not wish to read the

passage to Your Honours but that indicates that

up until then it was first past the ·post and then

the proportional preferential system that we now

find was enacted.

The two aspects of the present system which may be relevant to this case are the proportional

preferential counting aspect and the group provisions which are of much later province into the COMMONWEALTH

ELECTORAL ACT. The schedule to the submissions

on behalf of Senator Wood quite conveniently collects

a number of the provisions of theCOMMONWEALTH

ELECTORAL ACT that reflect upon those matters.

ClT8/l/SDL	9	11/3/88
Wood(2)

MR MASON (continuing): It is section 273 of the COMMONWEALTH

ELECTORAL ACT which describe in detail how the

scrutiny of votes in Senate elections is to take

place and it is subsection@) and following, in
particular, that deal with a quota and how a

candidate who achieves the quota has the surplus

votes passed on according to a particular formula

and the preference of that candidate .

The third general matter, if I may, is the question of resolving controversies - I have tried

to use a neutral term - and the starting point, here,

is section 47 of the CONSTITUTION:

Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy

..... and any question of a disputed election

..... shall be determined by the House.

That restates the historical role of Parliament to

be the arbiter of its own members. It creates three

categories of issues and one of the issues in this

present reference is whether those categories are

mutually exclusive or whether in the way they have

been dealt with in the COMMONWEALTH ELECTORAL ACT

an element of mutual exclusivity has been introduced

by the way Parliament has dealt with it.

Parliament took up the power eiven by section 47 and supplemented by section Sl(xxxvi):in the first

COMMONWEALTH ELECTORAL ACT of 1902 and passed a provision which, on my research, is substantially in the form of Division 1 of Part XXII of the

COMMONWEALTH ELECTORAL ACT of 1918. It was in 1907

that the Division 2 was added to the Act and the

historical background of the insertion of D.ivision 2

is recounted in paragraph 11 of the written submissions

which I have provided the Court.	Mr Vardon was
elected to the Senate bu~ because of certain

electoral irregularities, his election was declared

absolutely void on a petition to the Court under

what we will call Division 1.

(Continued on page 11)

ClT9/l/SH	10	10/3/88
Wood(2)

MR ViASON (continuing): Purporting to act pursuant to

section 15 of the CONSTITUTION the two

Parliament in South Australia chose Mr O'Loghlin

to fill the vacancy. There was obviously dispute

at an early as to whether that was the correct

approach. Application was made to the governor

to issue a writ for a fresh election, he refused.

An application was made to this Courc for a

mandamus to compel him to do so and this Court

refused to issue a mandamus, but on the ground that

mandamus would not lie to the governor of a State,

so this left unresolved the true dispute. If

I may just go to one passage in 4 CLR 1513, one

sees the origin of the 1907 legislation. It is

THE KING V THE GOVERNOR OF THE STATE OF

SOUTH AUSTRALIA, (1907) 4 CLR 1497 at page 1513,

at the conclusion of the judgment of the Court:

We refrain from expressing any

opinion upon the other important and
difficult question which the applicant
desires to have decided. It seems to be

clear that the question whether there is

or is not now a vacancy in the .

representation of South Australia in the

Senate is one of the questions to be decided by the Senate under section 47

"unless the Parliament otherwise provides".
Parliament can, no doubt, confer

authority to decide such a question upon

this Court, whether as a Court of

Disputed Returns or otherwise.

Now Parliament took the hint and passed legislation

and the legislation, Your Honours, was the DISPUTED

ELECTIONS AND QUALIFICATIONS ACT 1907, Act No 10

of 1907.

(Continued on page 12)

ClTl0/1/SR	11	11/3/88
Wood(2)

MR MASON (continuing): At the time that legislation

was passed there was pending in the Senate a

petition by Mr Vardon for various orders and the

terms of the petition appear from the second reading

speech on the 1907 Act. If I may hand to the Court

copies of that because it is relevant in a number of

respects to some of the submissions which we would

be wishing to advance. What I am handing is

the debate in the Senate on the second reading of the

1907 Act.

MASON CJ:	Thank you.
MR MASON:	The reference to Mr Vardon's petition appears at

page 5468, mainly on the right-hand column towards the

bottom of the page where it is set out where Mr Vardon

prayed that:

The choice of election by the said Houses

..... may be declared null and void and

that it may be further declared that

Mr O'Loghlin had not been duly chosen

or elected.

It is of some importance, we submit, to observe that what Vardon was complaining about in the Senate was

the choice purportedly pursuant to section 15 of

the CONSTITUTION that had been made by the

Houses of Parliament. He was not contesting an

election of Senator O'Loghlin.

(Continued on page 13)

ClTll/1/HS 12 11/3/88

Wood(2)
MR :MASON (continuing): The 1907 Act provided in section 2 for the pending

petition of Vardon to be transferred to the High

Court and provided that various provisions of what

I may call D.ivision 1 should be applicable to the

High Court's resolution of the pending petition.

The Act also created what we now treat as Division 2 and the section was 206AA, which corresponds with

section 276 of the 1918 Act. I know this present case has

been referred to as a reference unaer 377. It would,

with respect, have appeared to be appropriate to

refer to it as 376, but anyway, that is by the by.

Division 2, as we now know it, was created in the

1902 Act and that pattern was carried over into the

1918 Act.

Your Honours, with that background may I go

then to some of the provisions of Part XXII of the

1918 Act and state the issue as would appear to us.

The reference being under section 376 questions

arise as to what powers this Court is given, which

in turn depends upon construing the reference.

The ruling already given this morning indicates that

the Court is of the view that one cannot go outside

the questions that have been put by the Senate.

Secondly, asking whether the extent of the Court's

powers that have been created by Division Zand

they are set out in sections 3 79 and 381, and 3 79

picks up section 360, which appears in Division l;

381 picks up various sections, the most important

of which, it would appear, is 374, which provides for the effect to be given to any decision of the

Court-.

(Continued on page 14)

CIT12/l/JM	13	11/3/88
Wood(2)

MR :MA.SON (continuing): If I may just look at section 360

which is part of Division 1, the powers of the

court on a petition. Section 360(1) sets out

procedural powers which are clearly applicable

to the present reference. It is (v), (vi), and

(vii) that create the first question of

interpretation as to the extent of the Court's

powers under Division 2 and I will come back to

those, but (vii) declaring an election absolutely

void. (viii):

To dismiss or uphold the petition.

Is an example of one power which is clearly inapplicable to a Division 2 reference. If one goes to section 374, that provides as to how effect is to be given to a decision of the Court and it deals with three categories which mirror

360(1), (v), (vi) and (vii). There are three

different types of declarations that there may be

made and section 374 says what happens when those

sorts of declarations are made. Section 381

which picks up for Division 2, section 374, suggests

prima facie that this Court on a reference has

the powers given by (v), (vi) and (vii) of.

section 360. Section 379 expressly says that

this Court on a reference has the powers conferred

by section 360 so far as they are applicable and

then adds three specific powers.

If I may look firstly at the three specific

powers given by section 379. The second reading

speech makes plain what would otherwise be plain

for a reason I will shortly come to, that the

three powers given in section 379, (a), (b) and (c)

were framed the way they were because the draftsman
was looking primarily at those sections of the

CONSTITUTION which specifically dealt with certain

types of vacancy or disqualification. If I may

illustrate that, section 379(a):

to declare that any person was not

qualified to be a Senator.

That corresponds in point of language with

sections 16 and 34 of the CONSTITUTION, particularly

34, 16 just catapults you - I am sorry, no 16
and 34:

The qualifications of a senator shall be - and 34, which as I have already said, the

constitutional qualifications were those which

applied at the time the 1907 Act and at the time

the 1918 Act was passed. Section 379(b):

to declare that any person was not

capable of being chosen or of sitting.

That reflects the language of sections 43 and 44 of the

CONSTITUTION.

C1Tl3/l/SR	14	11/3/88
Wood(2)

MR MASON (continuing): And 379(c) to declare that there

is a vacancy. That reflects the language of

sections 19, 20, 37, 38 and 45. These points

are made in paragraph 12(ii) of our written

submissions. The second reading debate at page 5472

makes plain that 379(a)'s predecessor was drafted

with that intent in mind, to pick up those methods

of expression that were to be found in the

CONSTITUTION.

A central question in this reference is the

extent of the power given by section 376. As I

have already said - may I refer the Court to

section 353(1) which is to be found in Division 1:

The validity of any election or return may

be disputed by petition addressed to the Court

of Disputed Returns and not otherwise.

The words "validity of any election" is one of

the three categories that are mentioned in

section 47 of the CONSTITUTION, issues that could

have been dealt with my the Senate until Parliament

otherwise provided. 353(1) is, in our submission;

a provision otherwise and a provision which purports

to confer the power on the court to the exclusion

of the Senate.

For some reason which perhaps does not matter,

they have added into 353(1) the validity of an
election "or return" but I do not think anything

perhaps turns upon that. 376 picks up the other

two categories of issue referred to in iection 47

of the CONSTITUTION. It does so in a non-exclusive
way. This appears both from the language of 376

and, again, from the second reading debate. The Parliament was saying the Senate, and the House, may continue to deal with questions of qualifications

and vacancies but 376 gave power to refer those

sorts of questions to the Court, whereupon, if

the reference was made the Court had jurisdiction

to hear and determine the question.

376 clearly, in our submission, has got a

part of the issue but it clearly empowers the Senate to ask questions of this Court or to refer questions to this Court dealing with supervening

lot of work to do in dealing with what one may

call supervening issues of vacancy and disqualification.

issues of disqualification or vacancy. But it

does not have to, it can decide those for itself

and, again, the second reading speech makes plain

that if a person has resigned, obviously there

is no need to ask the High Court what happes then,

the CONSTITUTION provides that thereupon his or

ClT14/l/ND	15	11/3/88
Wood(2)

her seat shall become vacant. And as

Sir Garfield Barwick said in WEBSTER's case, and

we submit this is a general application beyond section 45, if the CONSTITUTION has provided a

particular result then it happens automatically

by virtue of the CONSTITUTION not by virtue of

some court or even of Parliament itself noting

and declaring that fact.

(Continued on page 17)

ClT14/2/ND	16	11/3/88
Wood(2)

MR MASON (continuing):  Now, the question of what happens

to a disqualified person who nominates contrary
to the prohibition in a statute and is elected

is at the heart of this case and we make the

submission that that issue could have been

determined pursuant to an application by petition

under Division 1, ~hat a claim that an unqualified
person stood and was elected is a claim disputing

the validity of that person's election and in

paragraph 4 of our written submissions we cite

two authorities for the proposition that that
sort of dispute is one which could have been

raised in a petition and a petition which, in

the words of 353(1~ disputed the validity of the

election.

In paragraph 2 of our submissions we make

the propositions that this is not a case involving

a constitutional disqualification or involving a

constitutional consequence. There is no statement

in the CONSTITUTION as to what happens if a person

was subject to the disqualifying factor that is

established against Senator Wood. At the bottom

of paragraph 2 I provide the Court with ~wo

references and I will take you just to one of

them, in 59 ALJR, for the proposition that the

terms of section 353(1) cannot validly stand in

the face of a challenge based on constitutional

grounds. In 59 ALJR 190 and it is at the bottom

of page 191, the judgment of the then Chief Justice:

In my opinion, it cannot be said that

any disadvantage caused by the sections of

the Act now in question to candidates who
are not members of parties or groups so
offends democratic principles as to render

the sections beyond the power of the

Parliament to enact. I am by no means

satisfied that section 353(1) of the Act,

which provides that the validity of any

petition ..... and not otherwise, would	election or return may be disputed by
prevent this Court from interfering by injunction if a challenge were successfully
made to the provisions of the Act on
constitutional grounds. The case is
distinguishable from BERRILL V HUGHES ..... which turned on statutory and not on constitutional considerations.

Now, there is a series of cases, the latest of which

are BERRILL V HUGHES and NILE V WOOD last year which

establish, in our submission, that the terms of

353(1) operate so as to preclude a petitioner from

amending a petition outside of the 40-day period

specified in 355(e) and, by inference, decide that

so far as that person is concerned, unless that

ClT15/l/SH	17	11/3/88
Wood(2)

person raises a validity issue in a timely petition,

the issue is beyond contest but the McKENZIE case

says that may be right but if the problem is based on a constitutional disqualification, then not so.

(Continued on page 19)

ClTlS/2/SH	18	11/3/88
Wood(2)

MASON CJ:	But that is not the problem here, is it?
MR MASON:	I beg your pardon.
MASON CJ:	That is not the problem here, we are concerned with statutory - - -
MR MASON:	With the statutory matter for which the

CONSTITUTION - not provided in the CONSTITUTION

nor does the CONSTITUTION provide the consequences

of the disqualification.

In paragraph 5 we have collected some

authorities on what at common law are the consequences

of disqualification of a candidate who stands for

election and is elected. And may I just be

permitted to add just one additional authority,

perhaps, to go down the bottoITT just after

HOBBS V MOREY.	MARTIN V NICHOLSON,(1850) Legge 618
at 628.

MASON CJ:  Before you go to that can I just take you up,

for a moment, on the assertion that the- disqualification

here is statutory only. What about section 44(i)?

Is not the disqualification a disqualification

of non-citizenship because at a material time

Senator Wood was a citizen of the United Kingdom?

MR MASON:  My understanding is (a), that that issue

has not been put before the Court, the only issue

in the reference is whether his disqualification

was by virtue of breach of sections 162 and 163

of the Acts, but, secondly, to be a citizen of
the United Kingdom is not,.according to any submissions

put before this Court, to be a citizen of a foreign

power. And in the submissions of my learned friend,

the Solicitor-General for the Commonwealth, he

addresses this question and the proposition is

put that, certainly in 1900, nobody would have

dreamed of Britain as being a foreign power and

one may, perhaps, look at the oath which is prescribed

in the schedule to the CONSTITUTION ACT which newly
elected politicians have to swear. It is section 42.

Section 42 prescribes the oath and the oath, on

page 36 of the blueprint is that they swear they

will be faithful to Her Majesty Queen Victoria.

MASON CJ:  Mr Solicitor, if the Solicitor for the Commonwealth

is going to address this question perhaps it should

be left to him to deal with it rather than the

two of you cover the same ground.

MR MASON:  Yes.

DEANE J:  But it is the first question, is it not? I mean

if that question be answered contrary to Senator Wood's

interests we never come on to these labyrinth of

statutory provisions that you have been referring t0.

ClT16/l/AC	19	11/3/88
Wood(2)

MR MASON:  Yes, if it is a 44(i) disqualification then the

CONSTITUTION provides that he:

shall be incapable of being chosen -

and the reasoning of the Chief Justice 1n

WEBSTER's case would suggest that that means what

it says and - - -

· DEANE J:	Section 45 would confirm that it means what it
says too, would it not?

MR MASON:  Yes. The brief point in paragraph 5 of our

written submissions is that in a case of a latent

\ack of qualification which this, in our submission,

clearly is, the common law principle was that the

votes cast for the candidate who was, in truth,

not qualified are good and it· is not as if the

other candidate can say, "Well, you have thrown

away your votes. Just disregard them and count • II

me 1n.

(Continued on page 21)

C1Tl6/2/AC	20	11/3/88
Wood(2)

MR 1:1.ASON (continuing):  But the discovery of the

disqualifying factor is a ground for invalidating

the election and will lead to a declaration or order

setting aside the election with consequential results.

The reason we use this as a jumping-off board is to say that therefore, in our submission, an attack on

latent disqualification of a statutory nature is

necessarily an attack or a dispute of the validity of

an election. That does not get one the whole of the

way but that clearly puts it within the Division 1

category of dispute.

In paragraph 6 we put three related but separate

grounds why, in our submission, the validity of the
election of Senator Wood cannot be disputed in the

present proceedings, the first being that the Senate

did not have power itself to entertain such a question

and therefore lacked power to refer it to the Court,

secondly that 353(1) directly operates to preclude

this Court from considering the issue, and thirdly,

more a matter of construction, that that question has
not been referred to the Court by the terms of

reference.

The argument as to the first turns principally

upon asking the Court to accept the reasoning of an

early decision of the Full Supreme Court of New South

Wales in 1:1.ARTIN V NICHOLSON, (1850) Legge 618.

Your Honours, Mr Martin was elected to the

Legislative Council of New South Wales when it appeared that he was not capable of being elected.

If Your Honours would go to the bottom of page 620,

the statutory provision which is in terms identical

to some of the constitutional provisions we have here,

about six lines up from the bottom:

By section 8, no person shall be

capable of being elected a Member of

the Legislative Council -

who does not have certain property qualifications.

Martin was elected, sat, the Council then decided

that he did not have those property qualifications,

a thing which he never disputed, in point of fact,

and expelled him. Indeed, they went a step further

and a writ for a fresh election was called and

somebody else was elected. Martin was physically

removed from the House and brought action in trespass

and succeeded. There were two main questions

agitated in the case, firstly whether evidence of his

lack of qualification could be admitted in the

supreme court proceedings for assault, and secondly whether the -supreme court was bound by Parliament's

decision that he was not qualified and that he ought

to be expelled. There was a statute which established

a court of disputed returns, if I may call it that,

page 621, about the middle of the page:

ClT17/l/HS	21	11/3/88
Wood(2)

In pursuance of the CONSTITUTIONAL ACT

an Act was passed, commonly called the
ELECTORAL ACT, which created a Court,

for trial of any complaints which may made by the Returning Officers ..... By section 41 the Court is to have power to inquire into all cases ..... respecting

Disputed Returns of Members to serve in

the Council.

About five lines further down:

By section 46, all complaints of the

undue Return of Members shall be addressed
in the form of a petition .

Over at the tope of page 622 there were various consequential provisions which reflect very closely the terms of section 374 of the 1918 COMMONWEALTH

ELECTORAL ACT.

. (Continued on page 23)

ClT17/2/HS	22	11/3/88
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MR MASON (continuing): At the bottom of 623 the opposing

arguments are set out, about eight lines up from

the bottom:

The argument for the defendants on this

point and for the admission of evidence

to show the want of qualification, as

establishing the vacancy, was substantially

as follnws:-The statute says that if the

party be not qualified, his election shall

be void; or (which comes to the same thing),

..... he shall be incapable of being elected.

The want of qualification avoids the election

from the cormnencement. It is as if there has

been no election. But if there was no election,

the plaintiff was no member; and his; complaint,

therefore, is at an end.

That, in very brief terms, is the argument put by
my learned friend, Mr Herbert, on behalf of the

State of Queensland. That is the same proposition

that is put.

The plaintiff's position on the other hand,

is this:  I was, in fact, returned as a member;

I took my seat; I voted. Here, then, is the

legal evidence, and the only evidence of my

membership; and the law does not permit that

title to be defeated by any investigation in
this Court, because it has provided the means

of determining the question elsewhere.

Elsewhere in the report is is plain that Martin

admitted the fact of his disqualification but disputed

the Court's power to have regard to that fact.

Now, as I say, there were two main questions and

the first question is picked up about the middle of

page 624 in the judgment of the Chief Justice.

The question is, can evidence establishing this

want of qualification be received in a court

of law (irrespective of any previous authoritative

declaration, by the House or any other tribunal)

to show that his election was void, and so, that

he was no member. If such evidence were

receivable, let us for a moment see what would follow. Every de facto member of the Council,

however long he may have occupied his seat,

would be liable to challenge, and his rights

of membership to impeachment, at the will and

pleasure of any person at any time.

At the top of the next page:

The solution of the difficulty is, that the

evidence cannot be received because other means of

trying the question of membership are provided:

CIT18/l/JM	23	11/3/88
Wood(2)

that is to say, if not by intervention of the

Council, or the Governor, yet in and by the

Electoral Court. By the Constitutional Act, if

a candidate be not qualified, he cannot be

elected; or, in the language of the subsequent

statute, his election will be void. The plaintiff,

therefore, is not qualified, was not duly returned

as a member. Such, in fact, was the very argument

of the defendants. The plaintiff, they urged, was

never truly a member; for by express provision

he could no.t become one•.. But, if so ( and we

think that it clearly is so), what was this case

but one of an invalid and wrong return? In perfect

strictness of language, perhaps, it may be said

that still it was not a "disputed" return.

Substantially, however, and within the true intent

and reasonable construction of the Act, any

objection to the return of a member, on the

ground of nonqualification, must be taken to make

the return a disputed one.

And then, until about the middle of the next page,

His Honour said that evidence of the disqualification

was not receivable in the supreme Court. In the middle

of 626, His Honour turned to a separate question:

We come, then, to the only remaining

question, namely, whether the plaintiff's seat

was legally declared vacant, because of his

non-qualification by the Governor and Legislative

Council. In other words, whether that Body or

the Governor, or both, had power efficaciously
to declare such vacancy. If they had, there can

be no further controversy; for the power, if

possessed, has been duly exercised. Now the power

is claimed in respect of the Governor -

and there is reference to various sections -

The defendant's counsel claimed it further, on what was asserted to be a general principle, arising

from the alleged necessity of the case, and the

reason of the thing.	It would be monstrous to
suppose, said th,ey,	that a Pauper or an Inf ant

could be returned, and the Council have no

authority to declare the seat vacant, merely

because wilful or careless constituency

perfectly cognisant of the fact, may forget or

be indifferent to their duty. To such arguments,

we need only give this answer: that, however

desirable the existence of such a power might be

in cases of that nature, we cannot attribute it to the Council, or the Governor, unless we find

it within the four corners of the statute.

The necessity for its existence, most certainly,

cannot be established -

and in the next paragraph:

CIT18/2/JM	24	1/3/88
Wood(2)

MR MASON (continuing):

We are all of opinion that the

power contended for was not given. It

appears to us that the jurisdiction of

the Electoral Court over disputes and

complaints respecting an improper or

invalid Return, is ..... an exclusive one,

and that, where neither an opposing

candidate, nor the requisite number of

electors, shall petition against such

Return, it becomes thenceforward

unimpeachable.

Then, at the top of page 628:

The question, therefore, of a vacancy by

reason of non-qualification, the same not

being one of those matters, was one which
the Governor had no authority to refer to
the ·Council, and on which they had not the
power, by virtue of such reference or

otherwise of adjudicating.

MASON CJ: ·well, how does that help us because, as a matter

of construction, they limited the power to one that

affected vacancies arising from specific causes?

MR MASON:  Yes. It is said by Your Honour and by my learned

friend, the Solicitor for the Commonwealth, that

when one looks at section 18 which is referred to
at the bottom of page 627, the council was given
power to look at vacancies of certain sorts. This

was not a vacancy of that sort. Therefore, the

council's power was clearly abrogated by that

provision. However, my submission is that

section 353(1) in point of construction takes

away from the Senate the power by any means to

put in dispute the election or the return.

MASON CJ: Well, if that is so, the argument stands on that

ground and does not gain support from MARTIN V

NICHOLSON.

MR MASON: Well, MARTIN V NICHOLSON is, nevertheless,

relevant in my submission because it establishes

the proposition that notwithstanding that the Act

states clearly a person is incapable of election

or his election is void if a procedure for

determining that issue is prescribed by statute,

then until that procedure is availed of, the

voidness is not established or effective and
there is the whole analogy with the discussion

as to void and voidable in administrative law

flowing from CALVIN V CARR, Lord Wilberforce and

the propositions that reflect that same sort of

reasoning.

ClT19/l/SH	25	11/3/88
Wood(2)

So, the point of distinction certainly

throws one back to the construction of the 1918
Act but if in point of construction the 1918

Act says that Parliament may not determine the matter, then the case in Legges Reports, in my

submission, is on all fours. The case is

discussed by Professor Campbell and at

paragraph 8 of our submissions, she points out

that to deprive the Senate or the House of the

power to determine this matter is not such a

bad thing because that avoids any possibility

of conflict between determinations of the Court

and of Houses of Parliament.

GAUDRON J:  But your submission goes further, does it not,

Mr Solicitor? It goes to the point that in certain

circumstances the issue may be totally beyond the determination of anyone and, in this case, unless

it is a constitutional disqualification, the matter

is beyond _determination.

MR MASON:  Yes. Section 353(1) meant the Senate could not

have decided the issue and, therefore, cannot

r~fer it to the Court. Section 353(1) also,
directly speaking to this Court, says that the

Court cannot decide the issue on the reference if a question of qualifications involves the

validity of an election.

DEANE J:	So that, if it emerged that he was a citizen of
an enemy country, nobody could do anything about
it?
MR MASON:	Is Your Honour taking me back to 44(1)?
DEANE J:	No, to 163. Presume he was not an Australian citizen
but was a citizen of an enemy country.

MR MASON: Well, 45 of the CONSTITUTION -

DEANE J:	I was just concerned that your statutory
MR MASON:	Oh, if it was only statutory, yes, that is correct,

yes, on my submission.

The difficulty which must be addressed, then,

in my submission, is taking the terms of 353(1)

and the earlier decisions of this Court which

give that section operative effect, at least so

far as a private citizen's attempt to impugn an

election, does 376 not, however, revive so far

as the Senate is concerned, the power to do which

353(1), prima facie, deprives it of doing.

C1Tl9/2/SH	26	11/3/88
Wood(2)

DAWSON J:  Why is it an all or nothing proposition,

Mr Solicitor? Why could not you accept your

argument up to the point of saying , "Well, the

election can't be disputed but looking at the position

now he has no qualifications and, therefore, his

seat must be vacant.", thereby answering the question

that you are entitled to answer under section 376?

MR MASON:  On the facts, he now has qualifications. The

evidence is that he is now an Australian citizen.

DAWSON J:  When it appears that he was not qualified when

he was elected, it can be so declared and the seat

can become vacant.

MR MASON: If it now appears on the facts, as it clearly

does, that he was not qualified when elected, my

submission stands that one can put it into crude

terms, not having been challenged by petition,

he has touched base, there being a public interest

which 353(1) reflects that controversies of that

nature should be raised promptly or put to rest.

Another way of looking at it is in the whole

directory mandatory approach to construction of

legislation. What is the intent shown by ·the Act

as a whole as to what should happen to a

disqualification under 162 and 163.

In our submission, just as Parliament has

prescribed the disqualification, it can prescribe

the consequences; the consequences it has prescribed

are that it can be impugned by petition or it ceases

to be of any materiality.

TOOHEY J:  Does that mean, Mr Solicitor, that section 376

is to be read as if it said, "Any question respecting

the qualifications of a senator who has been lawfully
elected."? In other words, does it look only to

some event that might bring into question the

qualifications of a senator, it being assumed that

MR MASON: It may perhaps go broader that than. It may be	he was entitled to be elected when he was elected?	that Parliament might just want to know, "Was he
qualified?" It could ask just the question,
'Wedo not want to take it any further. We just
would like to know, ·•was he qualified?' We are
not disputing his election but just please tell
us, should he have done it or not?"
MASON CJ:	And is that the operation that you give to 379(b)
in so far as it refers to the power:

to declare that any person was not capable

of being chosen -

MR MASON:  No, the operation I give to 379(b) is that it

was inserted to deal with those provisions of the

ClT2O/l/ND	27	11/3/88
Wood(2)

CONSTITUTION which provide that in certain

circumstances a person was not capable of being

chosen or of sitting. In other words, section 43

and section 44, what I have called the constitutional

questions of disqualification which, (~), are

constitutional, but (b), more importantly, are expressed

in terms that reflect 379(b). And as I said earlier,

the second reading speech indicates that that was

the intent when passed. The question is whether

one can pick up 379(b) and apply it to a new

situation. In my submission one cannot because

there is no need to do so and because the common

law provision provided ample means of dealing with

statutory disqualification factors.

DAWSON J:  Why would dealing with incapability of being chosen

under section 44 not be disputing an election?

MR MASON:  Why?

DAWSON J: Why, if we were to deal with, theoretically,

incapability of being chosen under section 44,

and answering a question under 379(b), why would

that not,. within the terms· of section 353, be dea 1 i ng

with a disputed election?

MR MASON:  It certainly could be and in a normal case it

would be but that would be a constitutional

disqualification -

DAWSON J:  But we would have no jurisdiction under section 376,

nevertheless, on your argument.

MR MASON:  Not necessarily. 376 could permit, by force of

the constitutional override of section 44, that

question - can I put it another way, Your Honour.

(Continued on page 29)

ClT2O/2/ND	28	11/3/88
Wood(2)

DAWSON J: It is not a question of whether it corrnnits,it

is a question of whether it is removed by section 353?

MR MASON: Yes, correct. Section 376, prima facie, permits

the question of the qualification to be before
the Court. Section 353(1) purports to remove it,

in my submission, to the extent that it involves

an attack on the validity of an election.

Section 353(1) can validly do that in respect of

a statutory disqualification. It cannot validly

do that in respect of a constitutional disqualification.

Section 44 is a constitutional disqualification.

DAWSON J: But the Court would not be then sitting as a

Court of Disputed Returns, but in some other capacity?

MR MASON:  No, if the Senate referred under section 376

the question whether one of its members was an

undischarged bankrupt when elected within the

terms of section 44(iii) and was he qualified and

if not should he be removed, that would be within
the terms of section 376 on my argument and
section 353(1) could not be pleaded against this

Court's jurisdiction, but because of the

constitutional reasons.

DAWSON J: Those matters do not have to be referred to the

Court. Why do you have to read section ....

MR MASON:	True, that they do not have to be, but they may, and there may be a factual issue which the Court
would be seen by the Senate to be the appropriate venue. But the fact having been determined- well
even in advance of the facts being determined, in truth, the CONSTITUTION would have operated to
have made that person incapable with the consequence
that the election would be void.  Your Honours,
I think what I have said in answer to these
questions is summarized in paragraph 13 of our
submissions and I do not wish to repeat them.
Paragraph 14 addresses the question of section 360.
It will be put against the submission I am arguing
that section 379 gives this Court the powers conferred by section 360 so far as they are applicable.
Why does not that include the power under
section 360(l)(v) and (vii)?

My submission is, firstly, that so far as

applicable suggests the. Court must determine first

whether a section 360 power is applicable to the

nature of inquiry referred to it and paragraphs (v),
(vi) and (vii) are not applicable to the sort of

inquiry that involves a statutory disqualifying

factor. In the second reading speech at page 5468

in the right-hand column near the top, it was

suggested that paragraphs 4, 5 and:6, which

correspond with (v), (vi) and (vii) of section 360(1)

do not apply. So the question was perhaps before

ClT21/l/SR	29	11/3/88
Wood(2)

the Parliament at that stage. So we say those

powers just are not applicable. There is plenty

of other parts of section 360 that can apply and

be brought into operation.

BRENNAN J: That may be so, but would that not be because

if the declarations made under section 379(a),

the consequences of it are already prescribed

by section 374(i)?

MR MASON:  Under section 379(a), yes.

BRENNAN J: Declaration to say that a person was not

qualified to be a senator? That declaration is

made then under section 374(i), "he shall cease

to be a senator"?

MR MASON:  Except section 374(i) is a declaration not to

have been duly elected, which is slightly different

language, which mirrors section 360(l)(vi). It

does not correspond identically to section 379(a),

but -

BRENNAN J: It may be reflect section 360(l)(vi). That

does not mean that the power which the court on

a reference exercises is the power of declaration

under section 360(l)(vi), it simply means that

in fact the election may be an election which answers

the description of section 374(i)?

MR MASON: Accepting than the alternative proposition that

Your Honour is putting to me then that section 379(a)

brings you into section 374(i), my answer to that

is that section 379(a) was directed at those

sections of the CONSTITUTION which speak in terms

of not being qualified to be elected.

BRENNAN J:  It may say that but I mean there is no reason

on the face of the statute, is there, to restrict

section 379 to constitutional consideration?

Why does it not apply to section 163? (Continued on page 31)

ClT21/2/SR	30	11/3/88
Wood(2)

MR MASON:	Here I come back in part to the intent of passing 379(a) and the fact that when passed it
addressed expressly, according to the debates, the
constitutional provisions. In part I come to 353(1), so,in a sense,I am zigzagging back to that in this
present context.
BRENNAN J:	The 353(1) argument only leads you as far as saying

that the Court on the reference does not exercise
the jurisdiction which it could exercise under 353.
It does not deny the jurisdiction of the Court to

consider the issues which might be necessary to be considered

for the purposes of the exercise of the jurisdiction under 3 79 (a)

MR MASON:  Unless the Senate itself - of course, one gets then

to the question of construction. The Senate

asked this Court is there a vacancy which, strictly
speaking, the answer, I would submit, on anyone's view,
except the Queensland view, is no. If that question

is permitted to be interpreted as should the Court

declare that there is a vacancy, exercising its

statutory powers under 379, then that raises the

question whether the Senate had the authority to confer

that power under the reference. I then go back to

353(1) and my MARTIN case as saying the Senate did not

have that power, therefore you construe the reference

in such a way as not to exceed the Senate's power

itself; alternatively you construe the Court's

power in such a way as not to contravene 353(1),
provided, of course, the sections can be read together,

and this is - I have to find work to do for 379 and

360 in order to make this part of my submission

acceptable.

I think in paragraph 14 I put the various

reasons why there is plenty of work to do without

picking up the relevant 360 powers and, in any event,

they are, or they should be found by the Court in this

case not to be applicable. Then there is the problem

of 374 which is a more difficult problem because it

is expressly incorporated into Division 2 by

section 381 and it will be said that implicit in that is

the assumption that the Division 2 powers extend to

making the sort of orders contemplated by 374 and

unless one infers that Parliament made a mistake,
which I accept is very difficult, I am driven back to
the constitutional grounds argument and say that there

is still plenty of work to do dealing with the

constitutional grounds of disqualification to allow

360 powers to apply and 374 powers to apply without

applying them in the present case.

GAUDRON J:	Why do you describe 374 as conferring powers?
MR MASON:	No, it does not.  It provides consequences and it

does so in a way that may be of some significance in

the present case because, 374(1), if this Court

ClT22/l/HS	31	11/3/88
Wood(2)

were to declare Senator Wood not to have been duly

elected the consequence he shall cease to be a

senator raises the question of whether that fits

in with section 15 of the CONSTITUTION so as to

provide that his vacancy is not an ab initio vacancy,

but operative from the declaration that the Court

makes, so as to create a casual vacancy situation.

BRENNAN J:	On the face of it, 374	is not ab initio, is it?
MR MASON:	Yes.	I think I have already put the questions of

construction which I deal with in paragraph 16 and 17

of our submissions. I have not said anything about

the validity of the election of the other 11 senators

because I do not perceive that to be raised by any

of the other submissions, but I certainly do submit
that that is not - whatever the powers the court can
exercise they cannot, given the reasons I have put and

the construction of this reference, extend to the

other 11 elected senators.

TOOHEY J:  Mr Solic.itor, could I just ask you something about

section 379 and 381. Section 379 begins:

On the hearing of any reference under

this part -

and then goes on to describe that -

the Court of Disputed Returns shall

sit as an open Court and shall have

the powers conferred by 360 -

and so on, but section 360 has already required the

Court of Disputed Returns to sit as an open court

and has already conferred certain powers on the Court.

Are we to read that as if "Part" should read "Division"?

MR MASON:	Part in 379?
TOOHEY J:	Yes, and also in 381.
MR MASON:	Yes, certainly in 381 - - -
TOOHEY J:	There seems to be no point in section 381 providing

that certain provisions which are already within the

part shall apply "on a reference to the Court of

Disputed Returns under this Part". It is almost as

if the intention was to provide for certain

situations in relation to Division 2.

(Continued on page 33)

ClT22/2/HS	32	11/3/88
Wood(2)

MR MASON:  Yes. And the only reference to a Court of

Disputed Returns under Part XXII is section 376

unless one looks at section 354(1) where the

High Court can refer the matter to the supreme court,

but I do not perceive that to have been what is in

mind. So, 381 must be looking back to 376. That

is the only proceedings on a reference.

TOOHEY J: Well, there certainly would be no need for it to

provide in relation to Division 1.

MR MASON:  No.

TOOHEY J: Because that is already catered for by the division

than this unwilling involuntary dual citizenship. It

is certainly clear when one reads that, and considers

CIT62/l/JM	88
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the situation, Your Honour, that one cannot apply

section 44 literally, because it is quite inconsistent

with the whole thrust of Australia's development

to nationhood and the recognition of its own

citizenship. And it cannot be, we would submit,

Your Honour, that persons who were Australian citizens

by reason of involuntary second citizenship should,

on any view, be regarded as falling under the second

part of that paragraph. If at the same time, Your Honour,

they show voluntary allegiance, whilst being dual

citizens, that would be a separate matter, but our

submission is, Your Honour, on the face of things,

it would be, we submit, an untenable extended operation

of section 44 to regard it on its face as including

dual citizenship.

(Continued on page 90)

CIT62/2/JM	89 ·
Wood(2)

DEANE J: That would mean one would read section 44(i)

as not applying in any case where somebody had

taken up Australian citizenship unambiguously?

MR GRIFFITH: Yes, Your Honour, in effect it would mean

either regarding it as equivalent to conjunctive

rather than disjunctive where it refers to

allegiance to a foreign power or being a citizen or secondly, Your Honour, regard the disjunctive reference to a citizen as not including cases

of secondary and voluntary citizenship where there
has been an acquisition of a citizenship in

Australia pursuant to Australian law which, pursuant to Australian law, has the effect of becoming sole citizenship, if the Court pleases.

MASON CJ:  Thank you, the Court will consider its decision in this matter.

AT 3.50 PM THE MATTER WAS ADJOURNED SINE DIE

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