Sue v Hill

Case [1999] HCA 30

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter No S179/1998

HENRY (NAI LEUNG) SUE  PETITIONER

AND

HEATHER HILL & ANOR  RESPONDENTS

Matter No B49/1998

TERRY PATRICK SHARPLES  PETITIONER

AND

HEATHER HILL & ANOR  RESPONDENTS

Sue v Hill [1999] HCA 30
23 June 1999
S179/1998 and B49/1998

ORDER

  1. Answer the questions reserved in each stated case as follows:

(a)Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?

Answer:Yes

(b)Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution?

Answer:Yes

(c)Was the first respondent duly elected at the Election?

Answer:No

2.

(d)If no to (c), was the Election void absolutely?

Answer:No

(e)If no to (d), should the second respondent conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned?

Answer:Inappropriate to answer.

(f)Save for those otherwise dealt with by order, who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?

Answer:  The Commonwealth should pay the costs of the petitioner and the first respondent.  The second respondent should bear its own costs.

Representation:

Matter No S179/1998

S G Finch SC with E A Collins for the petitioner (instructed by
Phillips Fox)

R J Ellicott QC with D F Rofe QC and A J Tudehope for the first respondent (instructed by Watkins Stokes Templeton)

M C Swan for the second respondent (instructed by Australian Government Solicitor)

Matter No B49/1998

Petitioner appeared in person

R J Ellicott QC with D F Rofe QC and A J Tudehope for the first respondent (instructed by Watkins Stokes Templeton)

M C Swan for the second respondent (instructed by Australian Government Solicitor)

3.

Interveners in both matters

D M J Bennett QC, Solicitor-General for the Commonwealth with N Perram and C S Ward intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Sue v Hill & Anor

Sharples v Hill & Anor

High Court - Original jurisdiction - Court of Disputed Returns - Case stated pursuant to Judiciary Act 1903 (Cth), s 18 - Petition as to validity of election of a Senator - Disqualification under s 44(i) of the Constitution - Whether Div 2 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) exhaustively prescribes Court's jurisdiction to determine matters concerning the constitutional and legislative disqualifications of a Senator or whether jurisdiction also conferred by Div 1 of Pt XXII.

Constitutional law - Judicial power - Petition as to validity of election of a Senator - Whether Div 1 of Pt XXII of the Commonwealth…

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AGLC
Sue v Hill [1999] HCA 30
Case
[1999] HCA 30
Decision Date

CaseChat Overview and Summary

The case of *Sue v Hill* and *Sharples v Hill* involved petitions challenging the qualifications of Mrs Heather Hill to be chosen or to sit as a Senator for Queensland following the 1998 general election. The petitioners contended that Mrs Hill was constitutionally disqualified under section 44(i) of the Constitution. The proceedings were brought before the High Court in its original jurisdiction as the Court of Disputed Returns, pursuant to cases stated under the *Judiciary Act 1903* (Cth).

The primary legal issue before the High Court was whether section 354 of the *Commonwealth Electoral Act 1918* (Cth) validly conferred jurisdiction upon the Court of Disputed Returns to determine the issues raised in the petitions. Subsidiary questions concerned whether Mrs Hill was a subject or citizen of a foreign power at the time of her nomination, whether she was duly elected, and if not, whether the election should be declared void or a recount ordered. The Court was also required to consider the constitutional validity of the jurisdiction conferred by Division 1 of Part XXII of the *Commonwealth Electoral Act 1918* (Cth) and whether it conferred non-judicial power, as well as whether the Parliament had "otherwise provided" for the constitutional qualifications of Senators.

The Court, in answering the questions reserved in the stated cases, determined that section 354 of the *Commonwealth Electoral Act 1918* (Cth) did not validly confer jurisdiction upon the Court of Disputed Returns to hear and determine the petitions. Consequently, the Court found it unnecessary and inappropriate to answer the other questions concerning Mrs Hill's eligibility or the validity of the election. The Court concluded that the resolution of Mrs Hill's qualifications was a matter reserved by the Constitution to the Senate. The Commonwealth was ordered to pay the costs of the petitioner and the first respondent, while the second respondent was to bear its own costs.

Orders

Orders of the court

1.

Answer the questions reserved in each stated case as follows:

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?

Answer: Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution?

Answer: Yes

(c) Was the first respondent duly elected at the Election?

Answer: No

2.

(d) If no to (c), was the Election void absolutely?

Answer: No

(e) If no to (d), should the second respondent conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned?

Answer: Inappropriate to answer.

(f) Save for those otherwise dealt with by order, who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?

Answer: The Commonwealth should pay the costs of the petitioner and the first respondent. The second respondent should bear its own costs.

Background

Background to the litigation

Although, under the Australian Constitution, the privileges of the Parliament must exist in a textual context which provides for the other branches of government, including the Judicature[328], tradition, practicality and law require that a large measure of deference should be accorded to the exercise by the Parliament of its privileges. In ascertaining the Parliament's purpose in a matter connected with its privileges, no court should strain legislative language to claim a jurisdiction which has not been clearly vested in it. Restraint is the watch-word for courts in this context. If the Parliament wishes to confer jurisdiction in accordance with the legislative powers that it enjoys under the Constitution[329], it may do so. But, subject to the Constitution, it is for the Parliament, and the Parliament alone, to surrender its privileges and to involve the courts in the resolution of controversies that concern those privileges.[328]Constitution, Ch III.[329]For example under s 51(xxxvi).Facts, legislation and issues The background facts are stated by Gaudron J. The legislation necessary to my opinion is set out in the reasons of McHugh J. Two petitioners have purportedly invoked the jurisdiction of the High Court as the Court of Disputed Returns[330]. They have done so by petitions filed in purported compliance with the Commonwealth Electoral Act 1918 (Cth) (the Act)[331]. Each petition challenges the qualifications of Mrs Heather Hill (the first respondent) to be chosen, or to sit, as a Senator. In the 1998 general election, she was returned following the counting of the ballots of electors of the State of Queensland[332]. In the ordinary course of events, Mrs Hill, whose name has been certified by the Governor of Queensland to the Governor-General as having been chosen for that State, would take her seat in the Senate after 1 July 1999. The petitioners contend that she is constitutionally disqualified from doing so[333].[330]Commonwealth Electoral Act 1918 (Cth) (the Act), s 354(1).[331]The Act, s 353.[332]On 26 October 1998, pursuant to the Constitution, s 7.[333]Constitution, s 44(i). The proceedings are now before this Court pursuant to cases stated in accordance with the Judiciary Act 1903 (Cth)[334]. Six questions are stated for our opinion. The questions are set out in the reasons of Gaudron J. Only one, the first, is relevant in the approach which I take. It asks: "Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?" Because in my view it does not, it is inappropriate or unnecessary to answer any of the other questions save one as to the costs. In these proceedings, those other questions may not be determined. No jurisdiction having been conferred upon this Court as the Court of Disputed Returns (and no other jurisdiction of the Court having been invoked), the resolution of the qualifications of Mrs Hill to be chosen or to sit as a Senator is a matter reserved by the Constitution to the Senate.[334]The Judiciary Act 1903 (Cth), s 18.Provisions for disputed elections

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW AND HAYNE JJ CJ, GUMMOW AND HAYNE JJ HUGH J KIRBY J CALLINAN J
Although in several places the Act purports to limit disputes as to the validity of any election or return[373] to proceedings by way of petition addressed to the Court of Disputed Returns "and not otherwise" and purports to make all decisions of that Court, whether in such disputes[374] or in proceedings on a reference under Div 2 by either House of the Parliament[375] "final and conclusive and without appeal, and … not [to] be questioned in any way"[376], such provisions appearing in the Act could have no operation to defeat the availability of relief otherwise provided by the Constitution. No such relief was sought in this case. It is therefore unnecessary and inappropriate to explore the questions that would be raised[377]. But it should not be assumed that the Constitution would provide no relief where the relevant House of the Parliament failed or refused to "determine" a question respecting the qualification of a Senator or of a member of the House of Representatives. Neither a lack of provision in Div 1 nor even an invalid provision for reference in Div 2 would necessarily leave a meritorious complainant without constitutional remedy.[373]The Act, s 353(1).[374]The Act, s 368.[375]The Act, s 381.[376]The Act, s 368.[377]They include the extent to which s 47 of the Constitution, appearing in Pt IV of Ch I, would be read as subject to all of the requirements of Ch III; cf R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166-168.Conclusions It follows that the Court of Disputed Returns has no jurisdiction to hear and determine the petition of either of the petitioners challenging the election of Mrs Hill as a Senator for the State of Queensland. Question (a) in each of the cases stated for the opinion of the Full Court should therefore be answered "No". In these circumstances, it is unnecessary for me to decide whether an additional reason exists for reaching this conclusion by virtue of the impermissibility, under Ch III of the Constitution, of conferring jurisdiction on the High Court as the Court of Disputed Returns, including the jurisdiction purportedly conferred in Div 1 of Pt XXII of the Act. Before considering constitutional questions, it is ordinarily appropriate and usually necessary to ascertain the meaning of the Act, the constitutional validity of which is disputed. Where, as in this case, the provisions of the Act, properly understood, afford no jurisdiction to the Court of Disputed Returns, invoked on the petition of an elector, no question arises as to whether jurisdiction, if it were conferred, would be beyond the power of the Parliament because contrary to Ch III. Because it is unnecessary to answer that question, I will refrain from doing so. However, perhaps I can be permitted to contrast the willingness of the majority in this case to countenance the conferral of a peculiar and purportedly exclusive statutory jurisdiction on this Court (in effect reconstituting and even renaming it as a kind of special creature of the Parliament to perform a multitude of functions, many of them quasi-political and semi-advisory, according to extremely broad criteria and sometimes peremptory, and even apparently arbitrary, procedures) with the very strict approach taken in other recent decisions where the negative implications of Ch III of the Constitution, unstated in the text, have been given a most generous rein[378]. [378]Re Wakim; Ex Parte McNally [1999] HCA 27.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW AND HAYNE JJ, CJ, GUMMOW AND HAYNE JJ, HUGH J, KIRBY J, CALLINAN J

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