Sue v Hill and Anor

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S179 of 1998

B e t w e e n -
HENRY (NAI LEUNG) SUE
Petitioner
and
HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

Office of the Registry
Brisbane No B49 of 1998

B e t w e e n -
TERRY PATRICK SHARPLES
Petitioner
and
HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent
Cases stated

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MAY 1999, AT 10.19 AM

______________

MR S.G. FINCH, SC: If the Court pleases, in the matter of Sue v Hill & Anor I appear with my learned friend, MS E.A. COLLINS, for the petitioner. (instructed by Phillips Fox)

MR R.J. ELLICOTT, QC: If the Court pleases, I appear with MR D.F. ROFE, QC and MR A.J. TUDEHOPE for the first respondent. (instructed by Watkins Stokes Templeton)

MR M.C. SWAN: If the Court pleases, I appear for the Australian Electoral Commission, the second respondent. (instructed by the Australian Government Solicitor)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friends, MR N. PERRAM and MR C.S. WARD, for the Attorney-General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

GLEESON CJ: Call the second matter for hearing, please.

MR T.P. SHARPLES appeared in person.

GLEESON CJ: Mr Sharples, are you content for us to hear argument in the first matter and, at the conclusion of argument, to then go on to your matter and see what, if anything, you or any of the other parties or interveners wish to add in relation to it?

MR SHARPLES: I am happy to go however the Court feels is best, your Honour.

GLEESON CJ: Very well. Thank you, Mr Sharples. We will note that in the second matter there are the same appearances for the first and second respondent and the same intervention. Yes, Mr Finch.

MR FINCH: Thank you, your Honours. Your Honours, this is a matter arising on a case stated on 30 March 1999 which raises a number of questions concerning the validity of the conferral of jurisdiction on this Court sitting as the Court of Disputed Returns and of the status of the United Kingdom as a foreign power within the meaning of section 44(1) of the Constitution, together with a number of ancillary questions.

The petition which lies behind that case stated – which I will go to only very briefly – was filed on 30 November 1998 and if your Honours have the case stated book, your Honours will see that petition commencing at page 3 of the book. As a very brief background, your Honours, the petitioner was a person who was qualified to vote at the election of six senators for the State of Queensland, which election was held on 3 October 1998. As such, the petitioner had standing and does have standing to bring the petition pursuant to section 335(c) of the Commonwealth Electoral Act.

GUMMOW J: Pursuant to which section?

MR FINCH: Section 355(c) of the Commonwealth Electoral Act, your Honour. If your Honours have that Act, your Honours see under the heading “ Requisites of petition” subsection (c).

GUMMOW J: Yes, thank you.

MR FINCH: The petition concerns, as your Honours may have seen, the election of the first respondent who was elected third of the six senators returned as elected. Your Honours can see very briefly what happened at the election by looking at page 15 of the case stated book where your Honours see that the writ was endorsed on that page ‑ ‑ ‑

KIRBY J: How many primary votes did Ms Hill receive?

MR FINCH: That is set out in the book, your Honour. There are a number of pages which touch this question. If your Honour turns to page 26 of the book, the progress totals are set out there of four of the counts and your Honours see about point 6 of that page, H. Hill, and the number of votes set out.

CALLINAN J: It is summarised at page 11 of the other book, is it not?

MR FINCH: It is, your Honour, yes.

KIRBY J: She was elected on her own vote. She did not require a distribution?

MR FINCH: That is right. In the petition, declarations were sought that the first respondent was not capable of being chosen as a senator and that she was not duly elected, together with certain ancillary orders in respect of the recounting of ballot papers in the event that those orders became necessary.

KIRBY J: Can I just ask on that question: if that were done, she personally is disqualified, but presumably the votes of the electors who voted for her would not be lost?

MR FINCH: That is right, your Honour.

KIRBY J: They would simply be distributed and, one might infer, would go to the next person in her party.

MR FINCH: That is right, your Honour. The essence of the petition is an argument based upon the circumstance that during the whole of the election process the first respondent was a citizen of the United Kingdom and a citizen of Australia. This is not a case, like some that have come before this Court in recent years, where the candidate in question does not have Australian citizenship. At all material times the first respondent was an Australian citizen and there is no dispute about that.

The petitioner’s case is, in a nutshell, that section 44(i) of the Constitution provides that any person who is a citizen of a foreign power is “incapable of being chosen” – the words used in the Constitution – as a senator. We say that this qualification operates whether or not the person has concurrent Australian citizenship. The central question raised by that argument for the purposes of section 44(i): is the United Kingdom to be considered to be a foreign power?

The first respondent, for her part, says that that question does not arise, at least in this Court, because the High Court sitting as the Court of Disputed Returns has no power to determine those issues. That argument, it is apparent to us, arises in two ways on the first respondent’s case. The first way is that it is argued that the purported conferral of jurisdiction on this Court, in section 354 of the Commonwealth Electoral Act, involves the conferral of non‑judicial power on the High Court and is accordingly invalid. That proposition is resisted by the petitioner, and we are supported in that resistance, we understand, by the Attorney‑General intervening.

The second argument concerning the lack of power in this Court is that the regime provided for in the Act, which I will come to in a moment, as your Honours will see, divides the jurisdiction into two divisions and it is said that Division 1 of Part XXII of the Act gives no power to determine disputed elections where the dispute arises on the basis of the qualification or lack thereof, of the particular candidate. We are also in dispute on that question. Can I start by giving your Honours a very ‑ ‑ ‑

KIRBY J: Is it on that second point that the minority view of Justice Deane is raised? That is to say, that the question of whether Mrs Hill is still a citizen of a foreign power, notwithstanding her pledge to Australia, is a matter of fact upon which different views might be held?

MR FINCH: That would be raised simply on the question of ‑ ‑ ‑

KIRBY J: I mean, we would not forfeit the construction of the Australian Constitution to a British Act as to how one surrenders British citizenship. That would be something that would be determine for the purpose of section 44.

MR FINCH: Indeed. Your Honour, as we understand it, the argument is raised in this context on the basis of power only, that this Court does not have any power to say anything about whether or not an election is void or whether somebody is duly elected where the ground of complaint concerns qualification simply because of the structure of the Act and the argument, in a nutshell, is this: that the Act in Division 2 refers specifically to matters of qualification and vacancy. Division 2 is concerned only with referrals from the relevant House. It is said, as I apprehend it, that Division 2 states the whole of the relevant avenues of complaint where the complaint concerns qualification and that as this is not a Division 2 petition, but a Division 1 matter, that this Court does not have the power to decide the matter on the basis of lack of qualification.

KIRBY J: Could that question have been raised by proceedings in the original jurisdiction of this Court seeking a declaration from the Court as a court, that Mrs Hill was not, on facts found, a citizen of a foreign power which would remove the basis of the objection?

MR FINCH: We say the answer to that question, your Honour, is probably, no, because our argument is that Division 1 allows resolutions of questions involving qualification and that Division 1 proceedings are to be brought before this Court sitting as the Court of Disputed Returns and not otherwise. We take that expression “not otherwise” to mean “ and not before the High Court sitting not as the Court of Disputed Returns”.

KIRBY J: How can an Act of Parliament expel the jurisdiction of this Court which is conferred by the Constitution?

MR FINCH: Well, your Honours, it is perhaps not my case to argue that.

GUMMOW J: Well, it is not conferred by the Constitution, because it is under section 76(i) and 76(ii).

MR FINCH: Yes.

GUMMOW J: You have to find a law, have you not?

MR FINCH: Yes.

GUMMOW J: Now you are here under section 18 of the Judiciary Act, are you not?

MR FINCH: Yes, your Honour.

GUMMOW J: Well, that speaks to the High Court, does it not?

MR FINCH: Yes. It is a matter which has not been debated for in any of the cases and there have been section 18 referrals before to the Court of Disputed Returns. The petitioner’s approach is this, that when the Commonwealth Electoral Act confers jurisdiction on the Court of Disputed Returns it conferred it on the High Court. We are not advancing any personae designatae argument. We say that the Court which is exercising this jurisdiction, is the High Court and that, accordingly, section 18 is applicable and it may be that that is why there has been no previous challenge, and I understand no challenge in this case, as to the validity of a process of referral, pursuant to the Judiciary Act.

KIRBY J: I asked an earlier question relating to why there would not be direct access to this Court. It would lie under section 75(v) of the Constitution, would it not?

MR FINCH: Yes.

KIRBY J: Seeking relief against officers of the Commonwealth, such as the first or second respondent – the second respondent. That could not be expelled by any Act of Parliament because that lies under the Constitution.

MR FINCH: We do not suggest it could be expelled, your Honour.

GAUDRON J: Well, what about section 47?

McHUGH J: Section 47 is the problem, is it not?

GAUDRON J: Of the Constitution.

MR FINCH: Yes, your Honour.

KIRBY J: But that is to be read subject to the whole Constitution, which includes Chapter III, which includes section 75(v).

MR FINCH: Your Honours, section 47 is the starting point for the tracing of the jurisdiction of the Court, and perhaps I can take your Honours through that. Your Honours recall that section 47 provides that:

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 in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

Your Honours, what happened after that, in terms of the history of the legislative development, is conveniently summarised in a number of cases which have come before the Court. It may not be necessary to take your Honours in detail through it because it is a matter of no great controversy, but your Honours will have recalled that there was a summary of what happened set out in In re Wood (1975) 132 CLR 270 and the relevant parts ‑ ‑ ‑

GLEESON CJ: Have you got the right reference there?

MR FINCH: I am sorry, I have given your Honours the wrong reference, it is open at the wrong page. The reference is (1998) 167 CLR and the relevant extracts concerning the history of various of the jurisdictions commences at page 157 and with particular attention to developments in the Commonwealth sphere at the bottom of page 158 where your Honours see that the first occasion which Parliament did so otherwise provide, as section 47 of the Constitution allows, was in 1902 when the precursor of Division 1 first came into existence and your Honours see the extracts there at the bottom of page 158 and at the top of page 159.

GUMMOW J: Article 1, section 5 of the United States Constitution simply says:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ‑ ‑ ‑

MR FINCH: Yes.

GUMMOW J: So, it was against that background that a very conscious decision obviously was made when 47 was drafted.

MR FINCH: Yes, your Honour.

GUMMOW J: In other words, there is no provision for Congress to get involved.

MR FINCH: No. Your Honours will recall from the discussions of the legislative history that have appeared in various other cases that most of these provisions in the various States and other jurisdictions where they appear were preceded by a jurisdiction which resided in a committee or other body within the relevant House or Houses and that in this case, as your Honour Justice Gummow says, we say that Parliament has clearly decided in the terms set out, firstly in 1902 and later in 1907 and subsequent amendments, that the jurisdiction formerly exercised by the Houses would be henceforth exercised by the High Court sitting as the Court of Disputed Returns.

KIRBY J: But is there anything other than “otherwise provide” to indicate that the Constitution envisaged that the Parliament could otherwise provide in a way compatible with Chapter III or with a separate branch of government for the judicature.

MR FINCH: Yes, your Honour. The source of the power to enact Division 1 ‑ ‑ ‑

GUMMOW J: Is 51(xxxvi).

MR FINCH: Yes. It is has been the subject of remarks which are set out in our written submissions. By the way, your Honours, I should mention at this point ‑ ‑ ‑

KIRBY J: That is, of course, “subject to this Constitution” in section 51 in the opening words.

MR FINCH: Yes, your Honour.

MR FINCH: So, that has been conventionally interpreted to mean subject to Chapter III.

MR FINCH: Yes. If your Honour would look briefly at paragraph 6 of our written submissions, we recite certain remarks of the Court in In re Webster and in In re Wood to the effect that the source of the power for these provisions is section 47, in conjunction with 51(xxxvi). I will not take your Honours to those remarks unless your Honours want me to.

KIRBY J: But what I am trying to get to is whether or not there is any other indication than section 47 and that provision in section 51 which suggests that the Parliament was given power to do things which Chapter III forbids.

MR FINCH: No, your Honour, we do not suggest that Chapter III does forbid it.

KIRBY J: That is one of the questions. But there is nothing else that will give a clue in the Constitution to whether it is permissible to constitute this Court, a constitutional Court, as a Court of Disputed Returns.

MR FINCH: There are no indications in the Constitution, your Honour. But, we say that what is in section 47 and 51(xxxvi) is ample.

McHUGH J: That leaves open the question which was not raised in Inre Wood and that is whether a reference by the Parliament to this Court creates a matter. If there is no matter, then this Court has no jurisdiction.

MR FINCH: Yes. That is a question which is also not raised in this case, your Honour. We say, because this is not a reference from Parliament. This is a Division 1 petition.

McHUGH J: But if the Parliament could not refer a matter to this Court, or any Federal Court under section 47, then where does it get the power to legislate in terms of this Act?

MR FINCH: Your Honour is suggesting that – let us assume that 1902 and 1907 had not happened - if Parliament could not have created a matter by reference, then there is nothing about 1902 or 1907, or subsequent events, which can, of themselves, create a matter.

McHUGH J: That is so.

MR FINCH: Yes. We say that a matter is raised within the relevant meaning of the words. It is not something that we understand is raised against us, clearly, but if it is I will have to wait and see the terms in which it has been raised. We are in a little bit of a difficult position, your Honours, because as your Honours see, we have had to speculate as to what grounds were raised against us on jurisdiction, and deal with those. We have not yet put on a reply to the submissions about jurisdiction about those sort of matters. But in the event and to the extent that they are raised, can I undertake to meet them then?

Your Honours, the background at the time of the Constitution is relevantly summarised in a number of academic articles, and they are summarised in our written submissions, and I will not go over them. But can we take them and simply this, that it is plain from the terms of section 47 that Parliament thought that the questions in section 47 need not be exercised by Parliament, if Parliament so decided. Parliament has so decided. If one looks at the history of the relevant convention debates which are summarised in Ms Walker’s article “Disputed Returns and Parliamentary Qualifications”, the reference to which is in paragraph 4 of our written submissions, your Honour will recall that it was initially proposed that the power to determine questions arising in respect of disputed elections be conferred on the High Court, and negotiations proceeded to the effect that that was backed away from with the saving provision which now appears in the first few words of section 47, “Until the Parliament otherwise provides”. But we say it is at least of some utility to observe that the framers of the Constitution thought that the exercise of this jurisdiction, which eventually found its way into section 47 by Federal Courts, was a possibility.

KIRBY J: What did the British North America Act provide? Do they have a specific provision for a Court of Disputed Returns? Perhaps that could be checked and you can tell us.

MR FINCH: Yes, we have a reference to that, your Honour. It is a little far from me at the moment to check it immediately, I will come back to your Honour on that, if I may. Your Honours, the basic structure which ‑ ‑ ‑

GUMMOW J: Now, section 353(1), is that to be understood as a statement by the Parliament that it is otherwise providing exclusively, exclusive of its own involvement directly in the matter?

MR FINCH: We say yes. It would have been easy to make it clear if it otherwise were the case, your Honour.

GUMMOW J: Yes.

GAUDRON J: But, of course, if it had not provided it exclusively, you would have had a more difficult task in establishing that there was a matter.

MR FINCH: Yes.

KIRBY J: What actually happens in the Congress? Do they just set up a parliamentary congressional committee, do they, for disputed returns?

MR FINCH: I am not sure whether it is a special committee, your Honour. I was looking this morning for a reference which I just cannot find at the moment about what the current state of play in the Congress is, but there is amongst the academic articles a reference to a decision, and I may have the name wrong, I think it is a case called Varden v Rowe – but I may be wrong about that – in the United States that said even when exercising that power in committee in Congress, the power being exercised was judicial. It may be of relevance for me to dig that out further during the day and I will see if I can find it for your Honour.

KIRBY J: If it is judicial, how is the first branch of government performing it?

MR FINCH: Yes. They do not have the same constraints, perhaps, that we do.

GLEESON CJ: How does section 353(1) relate to section 376?

MR FINCH: Your Honours, that is a question which has not been directly considered, although it is considered by the way in a number of decisions concerning whether or not the two powers or sets of powers are exclusive of each other. We say that because all matters whether in Division 2 or Division 1 may be raised under Division 1, that is, for instance, matters of qualification, then it is exclusive for all purposes. The only status of Division 2 is to provide for a different method of coming before this Court, that is referrals by the Senate or by the House, and the reason it does not say, presumably, in 376 “and not otherwise” is because the Senate and the House are not by this section or any other bound to refer such questions to this Court.

GLEESON CJ: But section 376 on that approach seems to assume that a question respecting the qualifications of a senator could arise in the absence of any dispute about the validity of the election.

MR FINCH: Yes, your Honour, and if it does and if there is no request or, indeed, the Senate simply decides not to refer the matter to the Court, it would appear to preserve the jurisdiction of the relevant House to determine that question for itself.

McHUGH J: And questions have been referred here on a number of occasions.

MR FINCH: Yes, they have your Honour. Indeed, a number of the authorities that you will be taken to today came here on referrals.

McHUGH J: Yes.

GAUDRON J: And a question might arise in circumstances where no petition was lodged.

MR FINCH: Yes, your Honour. The circumstances that the Senate or the House, indeed, may refer to itself – and perhaps that is an overly elegant expression - it simply may not refer questions and deal with them themselves under 376, or without taking advantage of the process in 376, we say is neither here nor there for our argument under 353. The question is whether this Court, the High Court, has jurisdiction to hear the petition which was lodged pursuant to 353.

GUMMOW J: But the point is, is it not, that 376 does not say “and not otherwise”?

MR FINCH: That is right, your Honour.

GUMMOW J: So if there is some vacancy that occurs during the currency of a person’s term, by operation of section 45, for example – there is no dispute about the election, the person could become bankrupt of whatever in the middle of sitting, 376 does not require the Parliament to ‑ ‑ ‑

MR FINCH: It does not, and that is one of the reasons why this Court, in fact ‑ ‑ ‑

GUMMOW J: Require the House to…..

MR FINCH: That is right, your Honour, it can deal with it itself, and that is one of the reasons why the High Court is not to be considered a mere adjunct to the legislature for the purposes of the provisions of this part. It does not simply as a matter of course deal with everything that comes up as some sort of de facto subcommittee of Parliament. It only deals with matters which are the subject of petitions or the subject of referrals and, once they are the subject of petitions or referrals, in our respectful submission, this Court does not exercise any other than judicial power. The Parliament may well decide to act in a completely different way than this Court would act when it keeps to itself a question of qualification.

Once the reference is made, though, to this Court, it moves into an entirely different realm, and it is the exercise, we say, by this Court of judicial power, not legislative power or administrative power, which occurs thereafter.

Just as a matter of historical interest, and it becomes slightly relevant when considering some of the early question, your Honours should know that Division 1, or what became Division 1, was, as I said, enacted first in 1902. There were some small differences between the sections as they were then enacted and as they now appear in Division 1. In 1907 the provisions which became Division 2 were enacted. The importance of that, we will be saying in due course, is that apart from five years between 1902 and 1907, the High Court has been exercising power, sitting as the Court of Disputed Returns, in essentially unchanged terms for nearly 100 years, and in that time has disposed of a very large number of Division 1 matters and a very large number of Division 2 matters. We say that the practice of the Court in so acting, and what one can glean from examining the way the Court has approached both sorts of actions, are at least relevant for the Court to look at in determining whether or not judicial power is exercised.

KIRBY J: I saw that reference to what Justice Barton said in the early days of the Court but apart from that, has there been no direct frontal attack on the constitutional validity of constituting the High Court of Australia as a Court of Disputed Returns by legislation?

MR FINCH: No.

KIRBY J: So, this is the first time in 100 years that question has been presented for decision?

MR FINCH: It is not the first time it has been presented. It is the first time it is going to be decided.

KIRBY J: But is it not a principle that every court must satisfy itself of its jurisdiction, at least if an issue is raised?

MR FINCH: Yes, your Honour. We are not suggesting that simply because the High Court has never before decided the matter, that it cannot now decide the matter afresh. What we are suggesting, though, is that there is valuable information to be gleaned by looking at the process that has been applied by the Court in dealing with both petitions and referrals, if one is thinking about the question, “Is judicial power being exercised or not?”.

Turning to the question of judicial power, your Honours will see in section 354(1) of the Commonwealth Electoral Act that the High Court is nominated as the Court of Disputed Returns, and as I have already said – I will not spend undue time about it – the importance of that, in our respectful submission, is that there is no argument available that this jurisdiction is conferred persona designata, and that the ‑ ‑ ‑

GUMMOW J: The amendment in 1983, was it, is quite significant to send these matters to the Federal Court or the Supreme Courts. That is on the assumption that it is a law under section 77, is it not?

MR FINCH: Yes.

GUMMOW J: Defining the jurisdiction of another Federal Court or investing a State court with federal jurisdictions.

MR FINCH: Yes, your Honour. It might have been thought that we might take advantage of some of the earlier statements in some of the earlier cases to try to save this jurisdiction if it was otherwise going to fail by saying that it was conferred on each of your Honours persona designata; but we do not say that. Although, the concept of analyses depending upon a decision about whether or not the jurisdiction is conferred persona designata is important, we say, in understanding some of the early decisions. Your Honours recall that the hallmarks of discussion about whether or not power was conferred persona designata are set out in some detail in Hilton v Wells 157 CLR 57, but I will not take your Honours back through that. It is reasonably familiar ground.

As I say, though, notwithstanding the fact that we do not press any argument based upon a conferral of jurisdiction persona designata, it is important, we say, to understand some of the early cases to grapple with that concept, when analysing some of the competing statements that have been made by members of this Court since 1904. Our submission is that once one looks at the whole spread of this Division from 1904 till today, the better view is that the powers are, particularly when exercised by the High Court rather than some other body, judicial in nature.

Your Honours may have seen from the written submissions that the first respondent relies heavily on two cases that purport a contrary view. Those two cases are, firstly, Holmes v Angwin (1906) 4 CLR 297 and the second is Webb v Hanlon (1939) 61 CLR 313. It is asserted that those two cases are authority for the proposition that Division 1 confers non-judicial power. In a nutshell, what we say about that is this. Look back carefully ‑ ‑ ‑

GUMMOW J: These are cases construing section 73 of the Constitution, are they not?

MR FINCH: In essence, yes, your Honour, but the Court ‑ ‑ ‑

GUMMOW J: Not in essence, that is what it was. People said they had the right to come here from a Supreme Court under section 73. It is an objection to competency and it…..to bring a matter here.

MR FINCH: Exactly, yes, and along the way, as your Honour recalls, this very question was raised.

GUMMOW J: As to the identity of the Supreme Court.

MR FINCH: Yes, and it is that particular circumstance which we say should operate to confine those two cases to the circumstance that it was found that the power which was conferred upon the relevant judicial officers was conferred persona designata and because of that, it was not a decision of the relevant Supreme Court.

KIRBY J: Could you help me as to how one distinguishes Courts of Criminal Appeal, which are set up pursuant to legislation, and the Courts of Disputed Returns? It may be that a lot of our jurisdictions just fall away?

MR FINCH: Well, I do not know that your Honour can be so hopeful.

GUMMOW J: It is dealt with in Stewart v The King, is it not, in 29 CLR 234?

MR FINCH: It is, your Honour. I do not have that decision with me but it is.

McHUGH J: But the point is that the Court of Criminal Appeal is part of the Supreme Court.

KIRBY J: It is constituted by the judges of the Supreme Court in the same way as Courts of Disputed Returns are.

MR FINCH: The mere fact that the phrase “the judges” is used, your Honour, we say is not determinative of whether or not the power is conferred persona designata. One has to look at the whole structure of the Act. That is the approach which is dictated by the judgments in Hilton v Wells and we say it is plain, of my reading of those judgments, that, although it is, perhaps, slightly off the point, Courts of Criminal Appeal would still be conferral of jurisdictions on courts rather than judges persona designata.

KIRBY J: But what is the point of distinction? It does not seem very consistent?

MR FINCH: The point of distinction is important, your Honour, against this background. It appeared to be the approach of the High Court in the first two cases - which I will come back to in a moment - that if, and to the extent that one determines that power was conferred persona designata, then one was not as persuaded by the argument that the power exercised by that person was a judicial power. The same judges who determined, in those two cases, that power had been conferred persona designata and that the powers of the relevant Electoral Act were non-judicial powers, themselves sat as members of the High Court sitting as the Court of Disputed Returns and entertained no doubts as to their jurisdiction and, in some cases, expressly said so. The distinction appears to be that if one appreciates, or it is borne in upon one some other way, that one is sitting as a court, then there is less doubt about ‑ ‑ ‑

KIRBY J: A Court of Disputed Returns is called a court ‑ ‑ ‑

MR FINCH: Indeed.

KIRBY J: It is made up of judges. The judges are appointed under legislation and it is just that they do nasty work of counting ballots and looking at disputed ballots, as distinct from dealing with the criminal convictions and sentences.

MR FINCH: Yes. I do not know whether, your Honour and I are at cross purposes or not. We say there is simply no question at all and I do not think there is any dissent from it at the Bar table. This jurisdiction is conferred upon the High Court as the High Court, not as a collection of individual judges.

KIRBY J: I am trying to see the consistency in the decision in Holmes. I might say we had an application for special leave and I had to look at Holmes, and I think there is a bit of a question about it in light of the decisions in respect of Courts of Criminal Appeal.

MR FINCH: Your Honour, it is usually recited that those two decisions have been the subject of judicial criticism and that is true although I have to say the judicial criticism was not directed precisely to the point of whether or not Electoral Acts of this sort confer judicial power. The criticism was more directed at ‑ ‑ ‑

GUMMOW J: You have to look at the Act.

MR FINCH: The criticism is directed at, for the most part, the decision of those courts about persona designata.

KIRBY J: I mean, I can understand a reason of principle, a policy why you do not want to extend disputes about elections. By the time they are completed, a new election might be called. But that is not the ground on which you can distinguish, under constitutional principles, the right to appeal from a court to this Court. That is guaranteed by the Constitution.

MR FINCH: Well, there are a number of ways of distinguishing those two cases. I will not go through them in great detail but I will have to come to them in some detail because I know that my learned friend relies on them. The essential point of difference is that they were simply deciding whether or not what was being appealed from was the Supreme Court or not, and that simply is not the same question as is before your Honours.

GUMMOW J: If it had been the Supreme Court, there would have been a further question, namely, whether such appeal was subject to an exceptional regulation prescribed by the National Parliament under section 73.

MR FINCH: Yes. The decisions have been seen to be defective, with respect, on a number of bases. We say they are not persuasive today but, in any event, they do not say that in the circumstances such as the present where the jurisdiction is not conferred personae designatae, but on a court, that those powers are irretrievably non‑judicial. To the extent which your Honours might take those two cases for authority for the proposition that powers such as those set out in Division 1 are irretrievably non‑judicial, no matter what body they are conferred on, we say, with respect, they are wrong and ought not be followed.

GUMMOW J: Well, in any case, in this particular dispute, it turns on the meaning of a term in the Constitution.

MR FINCH: Yes.

GUMMOW J: It is hard to see that that is of its nature insusceptible of construction here.

MR FINCH: We would, with respect, agree, yes.

KIRBY J: Well, where is “here”? If “here” in the High Court of Australia, I would agree, but if “here” is the Court of Disputed Returns created by the legislature constituting this Court, the final constitutional court as a statutory court, then you have to convince.

MR FINCH: Yes, we say they are the same thing; I mean, the Act says so. But, your Honours, I do have to, I think, grapple a little with – with respect, I agree with what was put to me by Justice Gummow. I do, I think, have to grapple with what my learned friend says about the irretrievably non-judicial nature of the powers.

GUMMOW J: In some cases, perhaps, there may be a grey area.

MR FINCH: Yes. One way of putting these two cases in their context, we say, is completely non-controversial, and it is this. Your Honours will recall that in Kable’s Case a number of your Honours expressed views concerning what might be called the functional characterisation of the conferral of powers. The relevant extracts, or at least some of them, with respect, are set out ‑ ‑ ‑

GUMMOW J: Construing a section like section 44 is not a chameleon‑type activity, I would have thought.

MR FINCH: No, it is not. Your Honour, I should make myself quite clear; I am only dealing at the moment with my learned friend’s assertion that no matter what section 44 says and no matter what section 47 says, that when your Honours are lumbered with Division 1 you are lumbered with non‑judicial power, no matter who you are and no matter how you sit.

McHUGH J: But is there not an anterior question? That is whether or not this question which you raise under section 44 of the Constitution is part of the jurisdiction conferred on this Court, even if otherwise the Court is given jurisdiction to exercise judicial power. How do you say the section 44 question arises in these proceedings?

MR FINCH: It arises because it is a constitutional disqualification which we are entitled to raise as a matter of disputing an election – as grounds for disputing that – in the same way as it was done in Sykes v Cleary.

McHUGH J: But how does this Court get jurisdiction under Division 1 to determine that question?

MR FINCH: Because it has jurisdiction to determine all questions in respect of dispute of elections, and we dispute the election on the basis of the lack of qualification pursuant to a constitutional provision.

McHUGH J: There is not a word in the Act, is there, or at least in Division 1, which would indicate that that is a question that could be raised in this Court?

MR FINCH: “Disputed Elections” are the words which we say indicate that.

GAUDRON J: Also section 370 might be relevant, is it not? I think it is section 370. Presumably when you are required to declare your qualifications, you are required to declare them truthfully or correctly.

MR FINCH: Yes. As your Honours may recall, there is a number of sections concerned with nomination which require that persons who are going to be senators ‑ ‑ ‑

GAUDRON J: It is not section 370; it must be ‑ ‑ ‑

MR FINCH: - - - nominate in a particular way.

GAUDRON J: Is it section 360?

MR FINCH: Your Honours see in section 163, which is in Part XIV of the Act – perhaps I will start with section 162, which is the cornerstone of it – the capability “of being elected” depends upon “duly nominated”; whether the candidate is “duly nominated”. The qualifications for that nomination appear in section 163, and they recite that you have to be 18, an Australian citizen and then the matters in (c), and then:

is qualified to be elected as a Senator –

It does not say anything there, of course, about the Constitution. There are references in the Act though to that qualification. If your Honours turn to section 170, as I think your Honour was pointing me to ‑ ‑ ‑

GAUDRON J: Yes, I was giving you the wrong number, but that is the section.

MR FINCH: Section 170(1):

A nomination is not valid unless, in the nomination paper, the person nominated:
(b) declares that:
(i) the person is qualified under the Constitution -

So the qualifications – and, we would interpolate, disqualifications – provided for by the Constitution are directly imported into the process of being chosen as a senator.

KIRBY J: But that would be so whether the Act incorporates it or not.

MR FINCH: Yes, your Honour, but that was my first answer. I was addressing Justice McHugh’s question about the content of the Act itself and whether there was any reference to the Constitution in the Act. There is no reference to the Constitution, your Honour, in Division 1 and Division 2.

McHUGH J: I appreciate that, but you start with a proposition that section 47 appears to make the question of qualification in the province and the Parliament until the Parliament otherwise provides.

MR FINCH: Yes.

McHUGH J: The Parliament is not otherwise provided in Division 1. It is provided in Division 2.

MR FINCH: We say, no, with respect, and that is the subject of authority here. The authority is to the effect, as your Honour may recall, that the categories in section 47 are not mutually exclusive. His Honour Justice Dawson, in a case I will take your Honour to shortly, has said that one can raise questions concerning qualification when one is considering disputed elections under Division 1.

McHUGH J: I know his Honour said that, but did not Justice Gaudron say to the contrary?

MR FINCH: I do not know whether your Honour is referring to the decision Hudson v Lee.

McHUGH J: Yes, I am.

GAUDRON J: “It is extraneous to the Act”, I think, is what I said.

MR FINCH: Yes, and we say, with respect, the reliance that my learned friend has put on her Honour’s decision in Hudson v Lee is, with respect, misconceived. Her Honour was not dealing with that question. Her Honour was specifically dealing with extraneous to the Act, not about any cross‑fertilisation between Division 1 and 2, and that is the way we say that decision should be properly understood. Her Honour was simply not dealing with the question or whether or not qualification could be raised under Division 1, and that all that was being dealt with there was whether one could complain of matters extraneous to those mentioned in the Act when relying upon section 362, as I recall.

McHUGH J: But if a person has not made a declaration in accordance with section 170, then that would constitute an illegal practice for the purpose of the legislation. But if a person makes a false declaration under section 170, what does the Act say about that?

MR FINCH: Nothing, your Honour.

McHUGH J: No. And does that not indicate that it is then for the Parliament to deal with under section 47 unless it refers the question, or “otherwise provides”.

MR FINCH: We would say, your Honour, that involves an unduly restrictive reading of 353 and 354 concerning what may be the subject of disputes when one is disputing an election. We say there is simply no ground in the structure of the Act to say that if what one is complaining of is a failure of qualification, that one has to hope that when one complains of it to Parliament that they will deal with it themselves, or refer it to this Court rather than simply ignore it.

KIRBY J: You are starting with the Act, but the starting point is the Constitution. You have to get very clearly - the Court has to be clear that the Parliament has otherwise provided, otherwise it is a matter within the privileges of Parliament. It is not for this Court to usurp those privileges unless the Parliament has lawfully and under the Constitution surrendered them to the Court.

MR FINCH: Yes. We say they have done that by, first, the enactment in 1902 of the then equivalent of Division 1, and that the subsequent enactment of Division 2 did no more than provide that each House could, if they so wished, refer certain questions to this Court if they did not wish to deal with them themselves. But we say that, notwithstanding that, there is nothing in the Act or anywhere else which indicates that the grounds for dealing or deciding on disputed elections, exclude qualification.

GUMMOW J: This word “election” is mischievous, really, in this context. One has to look at 353(2), which deems to be an election for these provisions, casual vacancies under section 15. Now, you are not going to have false advertising, and all the rest of the practices that are mischievous, there, are you?

MR FINCH: In connection with those, no, your Honour.

GUMMOW J: There may be difficult questions that arise in construing these casual vacancy provisions that have been inserted in 1977, I can understand.

MR FINCH: There appears to be little room in considering the matters raised under 353(2), (3) and (4) which are, essentially, of similar type, and, together with that, arguing that the only matters one can complain of when disputing an election are, for instance, the matters set out in section 362. We say that section ‑ ‑ ‑

GUMMOW J: There is no polling booths, and all that sort of carry on.

MR FINCH: Yes.

McHUGH J: But, Mr Finch, you start with the Constitution, at least prima facie, giving the Parliament the exclusive jurisdiction to decide a question which parliaments under the Westminster system, have decided exclusively of the courts. One would think that you would need fairly clear language before you would construe a provision of an Act of Parliament as giving some other body that particular jurisdiction.

MR FINCH: Yes.

McHUGH J: When you turn to this Act you see the Parliament in Division 2 conferring that power on the Court of Disputed Returns in express terms but subject to there being a reference by the Parliament.

MR FINCH: Yes.

McHUGH J: You are forced to say, because the Court has a general power to declare an election void, that the Parliament has otherwise provided, simply by that general term.

MR FINCH: Yes.

McHUGH J: That is a fairly large proposition, is it not, particularly when you see that Division 1 specifically provides for the voiding of an election “on the ground of any illegal practice” for the voiding of any election on the ground of “bribery or undue influence” and then when you move into Division 2 you move into another universe of discourse.

MR FINCH: Yes. But, there is nothing in the Act in section 353 or 354 which says the validity of any election on the grounds set out in 362 and there is no reason we say why it should be read down like that. Justice Gaudron dealt with this briefly, in a slightly different context, in Hudson v Lee, if one looks at 362(4). Justice Gaudron said that perhaps this was for better caution, or words to that effect, that one would wonder why it was necessary to provided that:

That the Court of Dispute Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground –

of contravention of those two Acts mentioned there if they were otherwise not available for consideration. Her Honour was dealing specifically with an argument about things raised extraneous to the Act but we are even closer to home. We say that within the Act, and within the compass of the Act, there are matters concerning qualification which can be raised.

McHUGH J: Qualification will not get you anywhere, will it?

MR FINCH: Because your Honour sees it in Division 2?

McHUGH J: No, the qualifications for nomination in this Act, what is the relevant section? Is it 18, or is it ‑ ‑ ‑

MR FINCH: Section 163. It may be useful to look at what happened, historically, about this, your Honours, because I think it does impact on the question. Section 163 first appeared in 1902 as section 95 of the Commonwealth Electoral Act 1902 and it provided to this effect, “To entitle a person to be nominated as a Senator or a Member of the House he must be qualified under the Constitution”. Over the years that was amended in ways which your Honours have seen recited in a number of cases reciting the history. The reference to qualification under the Constitution fell away in 1925 when it was replaced with words to the effect that the person must be a subject of the King, either natural born or for at least five years naturalised.

KIRBY J: These were in times when there was the doctrine of the unity of the Crown, and that fell away in the 1930s and 40s.

MR FINCH: Yes.

KIRBY J: So, that at that time, if you were a subject of the King that was enough.

MR FINCH: That is right. I am picking up particularly here Justice McHugh’s point about qualification because, of course, the qualification, as it now stands, makes no reference to the qualification under the Constitution nor indeed the disqualification. Initially, the section did so and the relevance of that, perhaps, is to see that at the time when these various provisions were enacted - and your Honour recalls that Division 1 came in in 1902 and there was no Division 2 until 1907 - that it was a provision of the Act that they must qualify under the Constitution. The scheme of the Act appears to have been then that one could challenge lack of qualification under Division 1. It was a provision of the Act that one had to be qualified under the Constitution. There was no such thing as Division 2. Division 1, the predecessor, did not mention qualification or vacancy in the same way as it still does not now.

McHUGH J: Does the second reading speech in any of the subsequent legislation throw any light on why Parliament dropped out the requirement of a constitutional qualification?

MR FINCH: Not so far as I am aware, your Honour. It was simply done – it was thought, I think, where they were being more particular.

KIRBY J: But you really have to start before the Constitution. You have to start with the privileges of Parliament.

MR FINCH: Yes.

KIRBY J: Then you have the Constitution which reserves those privileges and keeps them to Parliament, unless it otherwise provides, and then you have early legislation which, at least arguably, included a provision which has now been withdrawn, and it is a matter of impression really but, speaking for myself, I will approach the matter with a strictness that it must be very clear that Parliament has otherwise provided, because otherwise it is a privilege that belongs to Parliament. It is not for the courts, or certainly not for a court of disputed returns, a creature of Parliament, to interfere with those privileges.

MR FINCH: We say the fact that when first enacted the predecessor of Division 1 was accompanied by a qualification section which referred to “qualified under the Constitution” indicates that those who drafted the Act thought that Division 1 wording – and it has remained largely unchanged – was wide enough to encompass qualification without using the word “qualification”. The words did not then and do not now use any phrase such as “qualification or vacancy” in Division 1, but it must have been that they were available to be disputed under that section, because that section was all there was, there was no Division 2. That is at least an indicator that when one comes now to look at Division 1, although the qualification section has changed and fallen away and appears as it now does with references to being an Australian citizen, that does not mean that the content of the reference has changed. We say it is still as wide as it ever was.

KIRBY J: Just as a matter of practicality, one might hope that something would be done in the Act to ensure that a person has to certify that they are not, within the terms of the Constitution, a citizen of another country, and so on, so that at least candidates have these matters drawn to their notice.

MR FINCH: They actually do so. If your Honours look at the case stated book, your Honours see starting at page 16 there is the form which is appropriate for group nominations, and the first respondent was part of a group nomination. If your Honours then turn through the document, one sees at page 17 first the endorsement by the registered party, then at page 18 the list of candidates and the first respondent is number one in that list. There are details for each of the groups and then one sees on page 19 a checklist for the nomination, and under that, about line 31:

Candidates who have any doubts on their eligibility, by virtue of Section 44 of the Constitution, are advised to obtain their own legal advice.

KIRBY J: That gives a lot of information, does it not?

MR FINCH: Yes. Section 44 is then set out. Then on the next page, page 20, your Honours see that it is recited and declared, on the right-hand side of the page that, relevantly, the first respondent is:

capable of being chosen and sitting as a Senator (because I am not disqualified by virtue of Section 44 of the Constitution –

and a declaration that she is so qualified.

KIRBY J: It is much more likely that at that point a candidate’s attention is drawn to the specific matters where that candidate has to declare solemnly that they have qualifications or they do not have disqualifications. All I am saying is that that is the point at which, rather than setting out the terms of section 44, which I missed, you would set out in detail the disqualifications so that each candidate has to draw their notice to it, has their mind drawn to it, and they have to certify and declare that they have the qualifications and do not have the disqualifications.

MR FINCH: Yes.

KIRBY J: I mean, it is irrelevant, but I just think that that would make things a little clearer and perhaps a lot of litigation, of which we have seen a bit in the last few years, might be avoided.

MR FINCH: Certainly. As a matter of administration, your Honour, it may be a lot clearer if it were done that way.

GAUDRON J: Mr Finch, while you are at the nomination form, note 3 on page 16, could you direct me to the provision which justifies note 3.

MR FINCH: Yes, it is section 339(3).

McHUGH J: It is section 339(1)(k).

MR FINCH: Yes.

GAUDRON J: Thank you.

MR FINCH: That is the section I perhaps should have pulled out earlier in answer to your Honour Justice McHugh.

GAUDRON J: Wait a moment. No, (k) will not do.

GUMMOW J: It is subsection (3), is it not?

MR FINCH: I think I said subsection (3):

A person must not:
(a) make a statement in his or her nomination paper that is false or misleading - - -

McHUGH J: Yes, I see.

GAUDRON J: Yes.

MR FINCH: I think that may be the better ‑ ‑ ‑

GAUDRON J: Yes, thank you. So, in essence do you say, subject to the second part of your argument, that if the respondent is disqualified, there was an illegal practice for the purpose of section 362?

MR FINCH: Being a contravention of the Act.

GAUDRON J: Being a contravention of the Act; being section 339(3), and that is sufficient to bring it within Division 1, and you then say, it being clearly within Division 1, the only question is whether you can read into Division 2 anything that cuts it down.

MR FINCH: Yes.

GAUDRON J: Which is unlikely, one would have thought, in view of the history of the two divisions.

MR FINCH: And with respect, your Honour has put it much better than I attempt to do it. It is what we say your Honour’s decision in Hudson v Lee was not about. Your Honour’s decision was saying one does not rely on matters extraneous to the Act ‑ ‑ ‑

GAUDRON J: One does not go to the Postage Act or whatever it was.

MR FINCH: This is a matter which is not extraneous to the Act. It involves qualification which is required to be declared and the declaration is false.

GUMMOW J: There is a definition of “illegal practice” in 352(1).

GAUDRON J: Yes.

MR FINCH: There is, your Honour.

McHUGH J: But we could not determine the question, could we, on the stated case? Surely, mens rea would be applicable to 339(3).

GUMMOW J: Maybe not.

HAYNE J: A contrast with (1)(k) is perhaps a little stark.

MR FINCH: Yes.

GUMMOW J: So, (3) has to be read with (4). It rather puts it the other way around.

McHUGH J: Far from supporting you, does not the existence of 339(3) and (4) make it unlikely that this sort of thing would be an illegal practice for the purpose of the Act? Is the court going to have to hold a criminal trial, in effect, in relation to an electoral petition. These are matters to be dealt with in the criminal courts.

MR FINCH: Your Honour recalls that in the provisions of Division 1 ‑ ‑ ‑

McHUGH J: There are questions of bribery and corruption.

MR FINCH: There is a section which deals with illegal cases. In section 363 your Honours see that the Court is to report cases of illegal practices, which appears to indicate that it is part of the jurisdiction to find that a person has committed an illegal practice.

KIRBY J: I mean, I have an open mind on this, but imposing a penalty of six months for a statement in a nomination paper which is false or misleading - the imposition of a criminal penalty would rather imply that it has been done with knowledge, at least, and if that is the construction, then a statement by somebody who has been in this country since the age of 11 would not, on the face of things, constitute that kind of false or misleading statement which would invite imprisonment for up to six months.

MR FINCH: Yes.

GAUDRON J: You have to read subsection (4), do you not, where it is an offence:

if the person proves that he or she:
(a) did not know; and
(b) could not reasonably be expected to have known -

Is that not what it says? I have forgotten.

MR FINCH: Yes, it does say it, your Honour.

McHUGH J: But the point is for present purposes, even if your argument is right, the stated case is defective, is it not? We would need a finding of fact that there had been a contravention of the section. We would need some evidence. We are not going to make a finding that Mrs Hill has been guilty of an offence under section 339(3) without hearing her.

GAUDRON J: That is not necessary, is it? The only question is, is it an illegal practice for the purposes of Division 1? Not whether she is guilty of an offence. The two would seem to be distinct questions.

MR FINCH: We are not suggesting, as part of this exercise, that your Honours have to proceed to penalty or, indeed, to find anything about whether the offence has been committed in this sense.

McHUGH J: No, but the illegal practice is ‑ ‑ ‑

MR FINCH: Is not complying with subsection (3).

McHUGH J: Yes. Well, is it an illegal practice if you come within subsection (4)?

MR FINCH: No, your Honour. All that subsection (4) means is, if there is a prosecution, and there may not be, then there will be a defence if those two things are proved. That does not mean you have not done the thing which is prohibited under 339(3).

KIRBY J: But is it illegal before it is determined as to whether or not the defence applies?

MR FINCH: When one looks at the definition of “illegal practice”, your Honour, one does not see a reference to the finding that there be an offence committed, it says in 352 ‑ ‑ ‑

KIRBY J: This is 352, is it?

MR FINCH: Subsection 352(1):

illegal practice means a contravention of this Act or the regulations.

That, as your Honours can imagine, can go right down to rather small matters where the regulations are concerned but it does not say that to constitute an illegal practice there has to be, pursuant to a contravention of the Act, a prosecution and a successful prosecution at that.

GLEESON CJ: There is nothing in the petition that alleges a contravention of the Act.

MR FINCH: No, your Honour, that is right. We simply say that the disqualification is available for us to raise under Division 1 ‑ ‑ ‑

GLEESON CJ: Yes, that is the ground. The disqualification is the ground and the only ground taken in the petition.

MR FINCH: Yes, that is right, your Honour, and we say that disqualification has status as an illegal practice.

HAYNE J: But that may bring us, may it not, to the significance, if any, to be attached to the 360(2) and (3). In particular, subsection (3) introduced by the expression:

Without limiting the powers conferred…..the power of the Court to declare –

amongst other things someone –

not duly elected…..may be exercises on the ground that illegal practices were committed.

MR FINCH: Yes.

GUMMOW J: They are words of expansion and confirmation.

MR FINCH: Yes.

HAYNE J: The Act seems to use the expressions “duly elected” or “not duly elected” as connoting a result different from declaring “an election absolutely void”.

MR FINCH: Yes. I am not too sure what the content of that difference is, your Honour.

HAYNE J: It may reflect back on the circumstances in which the Court may intervene. It may not, I do not know.

KIRBY J: Is it a fair comment that, here we are straining at a gnat to try to find that disqualification falls in Division 1 when, in order to secure the right, you have to demonstrate that Parliament has surrendered a privilege and we have done so by legislation?

MR FINCH: Yes. We say, no, your Honour. We say from 1902 onwards, it has been clear that matters of qualification are available to be determined under Division 1 ‑ ‑ ‑

KIRBY J: But that was when the Act contained “subject of the King” which was, essentially, the constitutional requirement.

MR FINCH: Well, prior to that, your Honour, it actually said that you had to be “qualified under the Constitution” which is even clearer.

GLEESON CJ: It may be that one point that you can make is that the discussion we have been having demonstrates that matters of disqualification and matters of illegal practices overlap even though not every case of disqualification might necessarily involve an illegal practice, because of absence of mens rea, for example.

MR FINCH: That may be right, your Honour. An analysis like that may be what lies behind the phrases that have appeared in a couple of cases, that the categories of section 47 are not mutually exclusive. That may be the same concept.

McHUGH J: I think there are two competing cases in this Court, one of them that Justice Gleeson was in, I think, Meyer Heine, dealt with this question of where you have a prohibition and then, I think, you have a defence and it was held, I think, it was part of it. But, in your favour is a case called Sovar v Henry Lane concerning the Factory, Shops and Industries Act where it was held that the defence was something just to be raised in prosecution and did not cut down the general prohibition in another subsection.

MR FINCH: We say it is not terribly unusual, your Honour, that there could be a decision that a provision of an Act had been contravened and that that could found some consequential finding or relief, but that it may not, for instance, result in either a successful criminal prosecution or an award of damages, or anything like that. It may be a similar, perhaps, circumstance to section 52 of the Trade Practices Act where there may be a contravention which has, in effect, no consequences at all under that Act because of the failures to meet other standards.

McHUGH J: Well, I appreciate that, but still it would seem a strange result that the Court of Disputed Returns was required to report to the Parliament that a candidate had been guilty of an illegal practice, when that candidate had a defence.

MR FINCH: But, your Honour, that may be simply the administrative requirement which starts any subsequent process. The Court is doing no more than reporting it. The Houses of Parliament may then say, “Well I will take that further, there will be a prosecution, or I will not take it further”, but the fact that there has been an illegal practice does not involve this Court in necessarily proceeding to hear and determine the criminal matter.

KIRBY J: But how could we possibly say it is an illegal practice until the defence has been determined? I mean, that is to slur a person, with an illegal practice, where they have not have the opportunity of being heard and putting their defence, which the legislation guarantees that. It would be a monstrous thing.

MR FINCH: Because, your Honour, the Act provides for the provision of an absolute standard of conduct. If one does not meet it, for good reason, there will be no adverse consequence at all; one is simply found to have not met that absolute standard.

GLEESON CJ: But how do we get into the question of defence? There is no allegation in the petition of a contravention of the Act.

MR FINCH: That is right, your Honour.

GLEESON CJ: The only allegation in the petition is of an absence of qualification.

MR FINCH: Yes, your Honour.

KIRBY J: For which there is no provision in Division 1 clearly providing jurisdiction in the Court of Disputed Returns, though there is in Division 2.

MR FINCH: Yes. It does not use the words “qualification in Division 1”, that is certainly true.

KIRBY J: Well, if it does not use them and it is not provided, why should we infer the Parliament has surrendered its privilege?

MR FINCH: Because, there is no reason why one would read down the jurisdiction conferred to determine disputed elections or returns in that way.

GAUDRON J: And then you say, particularly when it could be raised as a contravention of the Act. It would be incongruous, in fact, I should have thought, if Division 1 allows it to be raised in one way, for you to treat Division 2 as exhaustive.

GLEESON CJ: The absence of an allegation of a contravention of the Act in the present case should not distract attention from the possibility of making, in a case such as the present, an allegation of a contravention which, in turn, demonstrates the overlapping between the concept of illegal practices and the matter of qualifications.

MR FINCH: Yes, your Honour. As your Honour has noted on several occasions, we only complain of lack of qualification. We do not complain of it as a breach of the Act. The circumstance that we could illustrates that there is jurisdiction under Division 1 to make that kind of complaint based on lack of qualification. The fact that one could make such a complaint, we say, means that Division 2 is not exclusive in matters of qualification.

McHUGH J: But it is a fundamental principle of construction that when two powers are given to a court, one expressed in general terms and the other one subject to restrictions, you do not read the general power to cut down the power which is subject to restrictions. Here you have got section 376 dealing specifically with the questions of “Qualifications and Vacancies” and the Court is limited to a reference from the Parliament.

MR FINCH: We say no, because it could arise easily this way: it may be that there is no candidate or other member of the electorate who is qualified to launch petitions.

McHUGH J: Well I know. Can I read you a passage from the joint judgment of Chief Justice Gavan Duffy and Justice Dixon in the Anthony Hordern Case 47 CLR 1 at page 7, where their Honours say:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

MR FINCH: We say that section 376 does not, when read with Division 1, operate that way because 376 has a sphere of its own to operate in, sensibly understood this way: either House of Parliament may, if it chooses, refer a question of qualification or vacancy to this Court. It may not. If it does not, there is no reason why someone else cannot raise it under Division 1. All that Division 2 does is provide access to the judicial process of this Court, if the Senate or the House wishes to take advantage of it.

KIRBY J: But there is a reason additional to what Justice McHugh has read, and that is the reason that the Constitution reserves it and retains it by ancient law to Parliament unless Parliament otherwise provides. It has otherwise provided, but it has done so in a specific way. So it is not just the general principle of construction, it is the Constitution allied with that general principle.

MR FINCH: We say there are two ways that this can be read. One can no doubt read it in a way which says, by providing as has been done in Division 2, the only way that qualifications and vacancies can be disputed is upon a reference from the House.

HAYNE J: How, in that context, does one read the expression “Senator” and “Member of the House” in 376? Does it include a person before they take their seat?

MR FINCH: I do not think the Act speaks to that, your Honour. There has been a number of cases which speak of the status of an elected candidate prior to them taking their seat, but I do not know that they go to your Honour’s point.

HAYNE J: That is, is 376 concerned with qualifications of sitting members? It plainly includes that, I would have thought, but is it limited to that?

MR FINCH: In express terms, no, your Honour, but this is not an answer to your question, because it also deals with vacancies, of course, which deals with the absence of such persons.

HAYNE J: Just so, but does it include the person who has submitted himself or herself to election and been returned by the electoral officer?

MR FINCH: But it is not an argument that we had considered, your Honour.

KIRBY J: In the context, would it not have to mean “pretended senator”, because it is all about qualifications, and they cannot be determined until you have decided the challenge to the qualification.

HAYNE J: But on any view, qualifications can intervene in the course of tenure of office, can it not?

MR FINCH: Yes. It would seem reasonably plain from the terms of the section that it cannot mean that the word “senator” or “member” means senator or member of unimpeachable qualifications, because that is, of course, what it is about.

HAYNE J: Plainly. But my question, and I am looking for assistance, is: is it referring to somebody who has taken his or her place in the respective House, or is it referring more generally?

MR FINCH: Yes, it is not a question I had considered yet, your Honour.

GLEESON CJ: May I ask you a question about section 47. Once Parliament has otherwise provided, is the effect of section 47 then forever spent?

MR FINCH: Yes, your Honour, we say.

GLEESON CJ: When did Parliament otherwise provide?

MR FINCH: In 1902 and then 1907.

GLEESON CJ: Why does it matter when you say “and then 1907”? If Parliament otherwise provided in 1902, and your earlier answer is correct, the effect of section 47 was then forever spent.

MR FINCH: Yes, the earlier answer was, perhaps, inadvisable. We would not suggest that Parliament has power under this section once only to do this Act.

HAYNE J: That is because of 51(xxxvi).

MR FINCH: Yes. Section 47 provides the initial status quo. It allows Parliament otherwise to provide. I would not suggest that that, together with 51(xxxvi), precludes Parliament from ever providing to that effect again once it had done so once.

GLEESON CJ: No, but once Parliament once made a provision within the meaning of the opening words of section 47, what thereafter was the force of section 47?

MR FINCH: It still defines the jurisdiction. It still defines the power of the Parliament in combination with 51(xxxvi) to make such laws. That is the function of it. It is not just about divesting itself of power but also about what sort of power is being talked of.

GLEESON CJ: Section 47 seems, on one view of it, a provision that operates until a certain time. It begins with the word “Until”.

MR FINCH: Yes.

GLEESON CJ: Do you say that time arrived in 1902?

MR FINCH: It first arrived in 1902.

GAUDRON J: Or is it more accurate to say it arrived in 1902 with respect to some part of it, any question of a disputed election? It was later that the separate provision was made in what is now Division 2.

MR FINCH: Yes. The difficulty with your Honour’s formulation from our point of view would be that, on our formulation, there would be nothing left, that disputed election ought cover the field. Once they had made provision, as they did, in respect of the predecessor of Division 1 in 1902, that that covered the field, that allowed dispute as to qualification or vacancy.

GAUDRON J: But when you look back to section 44 and look at the various matters there specified, it is clear, is it not, that there can be an overlap as to the three matters with respect to which Parliament may otherwise provide as allowed by section 47?

MR FINCH: Yes, we say that.

GAUDRON J: There are no clear‑cut categories.

MR FINCH: With respect, we say that is right. We say that is what has previously been said by members of this Court, and that because of that overlap it would be anomalous to say that there was some restriction to be found in the grounds upon which one could dispute an election under Division 1

GLEESON CJ: Does that mean that the opening words of section 47 really mean “subject to any provision which Parliament might otherwise make from time to time”?

MR FINCH: In effect, yes.

KIRBY J: Is that the construction that you support?

MR FINCH: Yes, your Honour. We would not suggest that section 47 gets spent upon the Parliament providing a particular way.

KIRBY J: Would it be possible to, as it were, see a policy in 376, and that is that the Parliament has reserved to itself, subject to any referral to the Court of Disputed Returns, of matters touching – I put it this way metaphorically – the person of the candidate, as distinct from the more established areas of election law, or of counting votes and disputed votes or bribery, or things of that kind? In respect of the first, Parliament in its two chambers has kept that question to itself.

MR FINCH: We say there is no necessary policy to that effect which is discernible because, we say that looking at it in public policy terms, it would seem odd if the elector, assuming it had been an elector who brings the petition rather than an unsuccessful candidate, were thrown upon the tender mercies of either House when wishing to dispute the qualifications of a candidate.

KIRBY J: But the very words “tender mercies” gives the clue, perhaps, to the policy and that is that where it touches the person, a person elected to the high office of a senator or a member of Parliament, on the face of things Parliament reserves to itself the determination of whether it should move or it should refer, whereas on matters of the actual conduct of the election by functionaries of the Commonwealth Electoral Commissioner, and so on, that is a thing in respect of which ordinary citizens and electors can bring the matter by petition. I can see a distinction there.

MR FINCH: We say there is no reason for distinguishing between the various categories of section 47 to that purpose.

KIRBY J: Well, I wonder. Why would it not be at least arguable that the reason that lies behind putting 376 in Division 2 is out of deference to a person who, prima facie, has been elected a senator or a member of the House of Representatives of the Commonwealth?

MR FINCH: I can only repeat my earlier answer, your Honour, there is no reason in practice or policy to say that a member of the public who perceive, and perhaps rightly perceives, a failure of qualification, should not be able to complain under Division 1.

KIRBY J: But on one of your arguments, the election has not failed, it is simply the candidate who cannot take her place.

MR FINCH: Yes, I am putting the matter more broadly than I do in my principal argument for the purpose of answering your Honour. There is simply no reason, we say, to exclude members of the public, for instance, from the class of those who can complain about constitutional disqualification of candidates.

KIRBY J: That is a very high thing, to invoke the Constitution, and at least, arguably, the reason for putting that into Division 2 was that Parliament said, “We reserve that to ourselves, though we reserve to ourselves the right to refer it to the Court of Disputed Returns”.

MR FINCH: One can imagine policy reasons to the contrary with respect of what your Honour is raising with me. If one assumes for a moment that there were a tenuous balance of power in Parliament, there might be an understandable reason for the House neither to decide the question for itself, nor to refer it to this Court.

KIRBY J: I think you underestimate the principle with which the Parliament acts in matters of this kind. Parliament in certain constitutional matters has traditionally in our country acted by principle, not just by political advantage.

MR FINCH: There is nothing in the section which obliges either House to refer a matter to this Court, and there is nothing in this Act or elsewhere which obliges either House to determine the matter for itself. So that, assuming the worst for the purpose of testing the argument, there may be no avenue, if your Honour is right, of testing whether or not the alleged disqualification is right or not.

KIRBY J: If the Parliament of the whole people of Australia determine the fact that a person who had lived in the country for 11 years, and against whom objection was now raised, ought not to have that issue determined because that would frustrate the will of the majority of the electors of Queensland, then would that not, at least arguably, be a matter for the Parliament to determine under Division 2, section 376?

MR FINCH: We say there is a difficulty with that. The Constitution provides for an express disqualification, not a disqualification ‑ ‑ ‑

McHUGH J: Yes, but prima facie it makes it a non-justiciable question.

GAUDRON J: It also provides for a penalty if the matter is not determined, in section 46, so an unqualified senator who sits is:

one hundred pounds to any person who sues for it in any court of competent jurisdiction.

MR FINCH: Yes. In answer to your Honour Justice McHugh’s point, we would say, with respect, section 47 does not really make it prima facie non‑justiciable. It says:

Until the Parliament otherwise provides –

Equally it looks forward to a time when possibly Parliament will not be doing it, somebody else will.

GUMMOW J: Section 46 could be activated by a common informer in effect, could it not, “any person who sues”?

GAUDRON J: And it could be determined, probably, in a Magistrates Court, assuming that there has been a conferral of jurisdiction. There is nothing ‑ ‑ ‑

MR FINCH: Yes. There is simply nothing in the structure of either the Constitution or of the Commonwealth Electoral Act, we say, which suggests that failures of qualification are somehow special to the Senate. We say that the function of Division 2 was simply to enable the Senate to act in the way set out in that division, if it chooses to, but it does not, we say, exclude the ability of any one else to raise such questions if they choose to.

McHUGH J: Well, I mean, section 46 has got to be read in the context of section 47, and as is section 47, I suppose, has to be read in the context of section 46, but ‑ ‑ ‑

GUMMOW J: And one must not forget that the States have an interest in the composition of the Senate. It is their writ; it is government’s writ. Now they do not have any hope of involving themselves ‑ ‑ ‑

MR FINCH: Unless they can persuade the Senate.

GUMMOW J: ‑ ‑ ‑under Division 2, and, indeed, it may be their casual vacancy under section 15.

MR FINCH: Yes.

GUMMOW J: And it may be their internal processes involved in filling that internal vacancy.

MR FINCH: Similar arguments, as the ones that have been just addressed back and forth, arise in the question of vacancy, as arise in the question of qualification, we say. There is nothing in the Act or the Constitution which indicates that persons other than the Senate should not be allowed to raise the matter in this Court.

GUMMOW J: Now, the reason I mention the Senate is, it is no good talking about Westminster as if it covered everything. It did not. This is new. It is a federal system. The stake holders undreamt of, in Westminster.

MR FINCH: Yes. I will not take your Honours through that. Your Honours set out the history, and a number of other judges have set out histories, and some of the cases were set out in the written submissions – we will not go through them – about these sorts of provisions. That discussion departed from a point at which I was addressing ‑ ‑ ‑

McHUGH J: Just before you go back to where we took you off your course, section 360(3) draws a distinction between a person “not duly elected” or declaring it “an election absolutely void”. Now, you are not seeking to have this election declared “absolutely void”, are you?

MR FINCH: No, your Honour.

McHUGH J: So the question is, whether or not Mrs Hill was “duly elected”?

MR FINCH: Yes.

McHUGH J: And does that not mean, elected in accordance with this Act?

MR FINCH: Yes, your Honour, there are two questions. That really arises out of - the first question is, whether she was capable of being chosen? That is being the same question as was asked in Sykes v Cleary. It is really the answer to that question which gives rise to the answer: because she was incapable of being chosen; because the process of choice is inherent in the election, she was not duly elected if she was incapable of being chosen.

McHUGH J: The point that is being raised, now, really was not dealt with, at least by Chief Justice Mason, Justice Toohey and myself in Sykes.

MR FINCH: It was not argued before you.

McHUGH J: No.

MR FINCH: Although, I should say that there was a preliminary question that your Honours may recall. In fact, I perhaps should go to it just to refresh your Honour’s memory about it. Your Honours may recall that the Full Court’s decision in Sykes (1992) 66 ALJR 577 was actually preceded by a hearing on another matter.

KIRBY J: This is Sykes v Cleary?

MR FINCH: Yes.

KIRBY J: It is in 176 CLR.

MR FINCH: It does not say so but it is really Sykes v Cleary [No 1] because it was subsequent to this that the Full Court then addressed the matter.

KIRBY J: I see.

MR FINCH: I take your Honours to this because of Justice McHugh’s question about whether the matter was raised. If your Honours have that report your Honours will see that Justice Dawson recited the circumstances, commencing at page 577 concerning Mr Cleary’s election and your Honours see in the first column on the left at about point G:

The petitioner claims that all four named respondents and he himself were disqualified under s 44.

It is clear, then, from what his Honour then says, that this was a Division 1 matter:

The petition, which is dated 18 May 1992, was issued pursuant to s 353(1) of the Commonwealth Electoral Act –

His Honour then recited the powers of the Court. His Honour then recited the provisions of Division 2 in so far as they were relevant. That is at the top of page 578 in the first column. Then, halfway down that first column his Honour recites a preliminary objection that was made by Mr Cleary who asserted:

that this Court, sitting as the Court of Disputed Returns, has no jurisdiction to try the petition. He refers to the fact that it is Div 2 and not Div 1 which speaks of “[a]any question respecting the qualifications of a Senator…..Division 1, he observes, refers only to “[t]he validity of any election or return”. That being so, he submits that the proper construction of Div 1 is to confine the jurisdiction which it confers to a consideration of the machinery of a disputed election, including any illegal practices adopted in relation to it. Such a construction would, he argues, be in accordance with the traditional role performed by the Houses of Parliament whereby they determined for themselves –

and at the bottom of that column:

But, of course, the Parliament has otherwise provided by the Commonwealth Electoral Act. Division 1 –

Then his Honour sets out down to point D the history that I have summarised for your Honours this morning, including the history of Division 1 and Division 2. Then commencing just after point D:

Sections 353(1) and 376, which define the jurisdiction of the Court of Disputed Returns under Divs 1 and 2 respectively, clearly have regard to s 47 of the Constitution and the three categories of questions to which it makes reference, namely, questions respecting qualifications, vacancies and disputed elections. Questions respecting disputed elections fall within the jurisdiction conferred by s 353(1) and questions concerning qualifications and vacancies fall within the jurisdiction conferred by s 376 upon a reference by the relevant House of Parliament. But there is nothing –

and this is where it becomes relevant to Justice McHugh’s question -

in s 47 to suggest that the three categories of questions referred to are mutually exclusive. Obviously a question of qualifications may arise in a context other than that of a disputed election. Conversely, a disputed election may involve a question of the qualification of a person to be chosen as a senator or member.

McHUGH J: That is the question.

MR FINCH: Yes.

Similarly, while in some circumstances the question of a vacancy may arise in connection with a disputed election, in other circumstances it may arise independently of such an election. For my part, I am unable to see that the assignment of one of the categories to be found in s 47 of the Constitution to Div 1 and the other two to Div 2 assists the respondent’s argument.

He then sets out the remark of the Court In re Wood, commencing at the bottom of the page:

“The categories of questions mentioned in s 47 of the Constitution…..are not mutually exclusive.”

His Honour then refers to a little of the history of the matter just before point C in the first column on page 579:

This conclusion is borne out by history.

His Honour then refers to the English history and then says:

Notwithstanding that the House of Commons retained jurisdiction to consider questions concerning the qualifications of its own members, successive editions of Rogers…..express the view that the grounds on which a petition might be based included the disqualification of a candidate for being elected.

KIRBY J: Do we have that extract from Rogers?

MR FINCH: Your Honours do not have Rogers extracted. I could not find it in time and I am not sure that anyone else has been able to find it yet, either.

KIRBY J: Perhaps we should try to find that because that may well be relevant.

MR FINCH: Yes. In any event, though, it is of some interest but it was not, of course, expressed in the context of precisely the same legislative framework and certainly not in the context of a federal system.

KIRBY J: But it helps me to meet my concern that there is a policy in the Division 1 and Division 2 division that reflects respect by Parliament for its own privileges in these particular matters.

MR FINCH: I am not suggesting your Honour ought not have reference to it.

GLEESON CJ: No doubt the Parliamentary Elections Act 1868 of the United Kingdom would have involved a system well known to the people who framed the Constitution.

MR FINCH: Yes, your Honour.

KIRBY J: That was for a reference to two judges – I do not know why they hit on two - always a source of peril.

MR FINCH: Yes – I would hope not. That history, your Honours, is also set out in the written submissions – I will not take your Honours in detail through that. In answer to Justice McHugh’s question, therefore, the question did not come up before you as a member of the Full Court. It had been disposed of prior to reaching that point.

KIRBY J: Mr Sykes did not challenge that part of the determination?

MR FINCH: No, and as far as I can read the reports, it was not reopened even in passing in front of the Full Court.

GLEESON CJ: There is no appeal, is there, from the decision in the Court of Disputed Returns?

MR FINCH: They are made non-appealable, that is right, your Honour. It would not have stopped, perhaps, imaginative counsel revisiting the matter along the way, and I am simply reciting as a matter of fact ‑ ‑ ‑

GUMMOW J: If you are right that is unappealable, and that is what it says on its face, if you are right that the jurisdiction is conferred in this Court, there is a question of whether the barring of the appeal is a permitted exception and regulation perhaps of section 73, which does not arise here.

MR FINCH: That is right, your Honour, and that has been dealt with in the written submissions and we say that it is no bar at all to this power being judicial.

GUMMOW J: Yes. The fact that section 18 of the Judiciary Act provides an avenue to get to the Full Court may ‑ ‑ ‑

GLEESON CJ: All that came before the Full Court in Sykes v Cleary was a stated case, stated by Justice Dawson.

MR FINCH: That is right, your Honour, that is why I say the matter did not arise ‑ ‑ ‑

GLEESON CJ: He having made previously an apparently unappealable decision in relation to the question of jurisdiction.

MR FINCH: Yes. I am simply answering Justice McHugh’s question of whether it was raised before him. The answer is no, it was raised before then and determined before then.

GUMMOW J: In relation to section 46, the Commonwealth Informers Parliamentary Disqualifications Act 1975 is a provision by the Parliament. It seems that the exclusive jurisdiction is provided for this Court and the sum is only two hundred dollars per day.

MR FINCH: Yes.

GAUDRON J: Well, perhaps, that does say something. If qualifications can be tested in other ways before a court, as section 46 clearly contemplated and the Act, the Commonwealth Informers Act or the Parliamentary Informers Act, perhaps there is not very good reason for reading it out of Division 1.

MR FINCH: It is, perhaps, another reason why it should not be thought that Parliament had, once and for all, said everything that was going to be said about the destination of disputes about qualifications in Division 2.

McHUGH J: What do you say about “court of competent jurisdiction” in section 46? Is the Constitution, by that provision, vesting jurisdiction in the courts and, if so, what courts, or does it require an Act of the Federal Parliament to give a court jurisdiction under section 46?

MR FINCH: I will think about that question, your Honour. It is not a matter I had considered prior to your Honour asking it.

McHUGH J: Yes.

MR FINCH: The structure of it seems to provide simply for the creation of a liability, that liability expressed in a sum of money. A better reading of the section may be that the “court of competent jurisdiction” is any court with jurisdiction and in respect of sums of money of that size.

GAUDRON J: Assuming conferral or vesting.

MR FINCH: Yes.

GAUDRON J: I mean, it would be conferral if it were a State court.

GLEESON CJ: Mr Finch, you told us a little earlier that in the Act of 1902 it was clear that one of the grounds on which the validity of an election may be disputed was want of qualifications.

MR FINCH: I think what I said, your Honour, was because the qualification clause referred to must be qualified under the Constitution, and because there was no Division 2 equivalent, then it must be taken, or at least reasonably inferred, that questions concerning lack of qualification could have been debated under the then equivalent of Division 1, because there was no other avenue available and the Act did not say that one could not raise in the context of a disputed election case the failure of qualification that was provided for earlier in the Act.

The point I raised was really a matter of attempting to assist the interpretation of what is now 353, 354 and following, by saying that given that the predecessors of the qualifications sections referred expressly to qualifications under the Constitution and assuming – and there is no reason, we say, to assume anything to the contrary – that that lack of qualification was one of the matters which could be complained of because there was nothing to indicate to the contrary in the Act, there being no Division 2, then the framers of that Act plainly thought that qualification was a matter which could be raised within the framework of the words “disputed election”.

KIRBY J: Would it be convenient to have a little bundle of those parts of the Act which deal with the jurisdiction of the Court of Disputed Returns over its various - - -

MR FINCH: Yes, your Honour, we actually do have a bundle like that and we can – it is not formatted in a very elegant way – perhaps we can do that over the break and provide it to members of the Court.

I think, your Honours, where I departed from what I had been saying was embarking on an explanation of a context in which the two decisions upon which the first respondent relies so heavily may be considered. They were – to refresh the Court’s memory – those decisions in Holmes v Angwin and Webb v Hanlon, and much is made of the circumstance that in the context of a decision by the members of that Court, that the power had been conferred persona designata, that the power was non-judicial in nature, that there is nothing different between the sections that were being considered then, and what is before your Honours, that is your Honours’ jurisdiction.

The first argument we make about that is that there is an important point of distinction which is that those cases were about and solely about whether there was a right of appeal based upon the question of whether what was appealed from with the relevant Supreme Court. The answer was there is no right of appeal because they are not the Supreme Court, they are the judges persona designatae. What we wanted to say about that was, though, that quite apart from that point of distinction, there is something useful to be gained from seeing the historical context in which they arose. It has been an undoubted proposition for many years, and certainly throughout the time covered by these cases, that in, I think his Honour Justice Gummow’s words, there can be a functional analysis of the conferral of powers and your Honours will recall the comments to that effect in Kable’s Case, and I will not take your Honours back through Kable’s Case, it is all well known, but we excerpt in our written submissions conveniently brief explanations of the point from Justices Gaudron and Gummow, and those extracts commence at paragraph 31 of our written submissions. I will just very briefly recall to the Court that at page 106 of the report at 189 CLR, Justice Gaudron said this about that:

It is well settled that some functions take their character from the way in which they are to be exercised and, thus, from the body on which they are conferred. Accordingly, some functions which are not essentially judicial in character are, nonetheless, properly characterised as judicial if conferred on a court.

Later at page 136 of the same decision, Justice Gummow said:

The third well-settled proposition is that by no means all species of non-judicial power, when entrusted by the Parliament to a federal court, are antipathetic to the proper exercise of the judicial power of the Commonwealth. That this is so is illustrated by, though not coextensive with, the proposition that there exist powers which, when entrusted to a repository other than a court, are to be characterised as administrative and non-judicial yet, when entrusted in an appropriate context to a court, involve the exercise of judicial power. There is abundant authority to support this functional analysis of the separation of judicial power.

sWhat we want to say about that is simply this, that those sentiments, with respect, have long and honourable antecedents, some of them directly referable to the question that the first respondents raise in this case. One can see it first in the decision of Justice Isaacs in Munro.

KIRBY J: You are just circumnavigating around or avoiding the rocks of Holmes, are you?

MR FINCH: No, I am ‑ ‑ ‑

KIRBY J: Because in that case, the earlier case, the legislation of Western Australia conferred the jurisdiction on “the Supreme Court”, and therefore I just do not see what the point of distinction is. If it is conferred on the High Court, I can see how that tends to suggest that that is then conferred on the Court as a court, but how does one circumvent the decision in Holmes?

MR FINCH: I will come directly to it, your Honour. I wanted first to give a context in which it could be understood. But the important point of distinction is, no matter what it said, and almost without doubt, a different decision would be made about the same words today, it was decided that that power was conferred persona designata. What we are suggesting is that, in conformity with a functional analysis of the separation of power, it makes it a lot easier and in some way explains a decision that a power is non‑judicial, if one has decided that the repository of the power is not a court. That is what was decided in Holmes and in Webb.

KIRBY J: I could understand it if they said it is conferred on the court of disputed returns which will constituted by the judges of the Supreme Court, but instead it is conferred on the court.

MR FINCH: Yes. We, with respect, would disagree with the conclusions expressed by the members of the Court in both those decisions about whether the power was conferred persona designata. We would say that that, with respect, was wrong.

KIRBY J: So you do circumvent those cases?

MR FINCH: We distinguish them by saying firstly, in so far as they purport to say that powers of this sort - and when I say “this sort” I mean Divisions 1 and 2 - are irretrievably non‑judicial, they are wrong. We say that, in any event, that decision was in the context of a decision that the body exercising the power was non‑judicial, not a court - simply a judge who was conferred with power persona designata.

KIRBY J: You say that is wrong too?

MR FINCH: Yes, that is wrong too, but that explains, in a sense, how the decision was reached. There are some curious anomalies which I will come to now about the decisions in those cases involving the same judges who do not feel the same about the power when conferred on themselves sitting as members of the High Court. One would have thought, given the time period involved, that they might have expressed some doubt about it, but as to the contrary, they expressed no doubt about it.

But, your Honours, can I go very briefly to Munro v Federal Commissioner of Taxation (1926) 38 CLR 153. His Honour Justice Isaacs there, in a very interesting discussion, made a number of remarks, and I will not take your Honours’ time by going through them in detail, but the relevant remarks start at page 175 commencing at about point 4, where his Honour says, “In the former legislation”, and I will not read any of that out, but that is where the discussion starts.

GUMMOW J: This is all uncontroversial, is it not?

MR FINCH: I think so, your Honour, but what we are endeavouring to do is - it is not uncontroversial insofar as ‑ ‑ ‑

GUMMOW J: The existence of the principle is uncontroversial. How it applies in one case to the next is another matter.

MR FINCH: I agree, with respect, entirely with your Honour, but we are endeavouring to meet the proposition from the first respondent that this is a non‑judicial power no matter who gets it. We say that when your Honours get it, that is an important factor to be considered in what sort of power it is. But in response to your Honour, I will not take long with this, if I can just point out a few remarks which are of interest.

GUMMOW J: There is no case applying this functional analysis that you rely on to this particular realm of discourse, is there?

MR FINCH: Close to it, and can I take your Honour to that in the course of these remarks.

KIRBY J: Do you glide over the problem by saying, “when your Honours get it”? Are we Honours in the High Court of Australia or are we Honours in the Court of Disputed Returns?

MR FINCH: Your Honour, you are getting the power as the High Court of Australia.

GAUDRON J: Yes, I suppose we do not have a separate commission, do we, or separate salary or remuneration.

GUMMOW J: Or tenure.

GAUDRON J: Or tenure.

MR FINCH: I regret to inform your Honours, no. The discussion continues over at page 176. Interestingly though, his Honour says, and this will come up a little later in the discussion, about point five of the page:

If, for instance, the Legislature could validly go on to give the tribunal jurisdiction to enforce the decision by execution, the function would be judicial, since the concept of judicial power includes enforcement.

The only reason I highlight that at this point is that, as your Honours are well aware from the written submissions and, indeed, the well-known principles of law about the point, the concept of enforcement is going to be an important one in determining whether or not the power is judicial. His Honour does seem to be saying here that one looks not only at what the Parliament has said about enforcement, but perhaps what it could say about enforcement.

That will become a little more relevant later on where I point out to your Honours that it may not have escaped everyone’s attention, but in this particular Act there are some peculiarities in connection with enforcement. It is suggested by the first respondent that there in fact is no, or not enough, power of enforcement in this Court and that the jurisdiction is merely to make a declaration, and that that is not enough to characterise the power as judicial. We would, with respect, disagree with that. But, when looking at what Parliament thinks it can do in connection with the exercise of this power, it is interesting to note – and I will come back to this later – that one of the Acts passed by the federal Parliament includes the Aboriginal and Torres Strait Commission Act which incorporates almost word for word a version of Division 1 and 2 in respect of ‑ ‑ ‑

KIRBY J: That is not surprising, is it; they have just followed the Electoral Act.

MR FINCH: It is not surprising ‑ ‑ ‑

KIRBY J: You cannot make it better by saying that because the drafter copied an earlier precedent that it is enforced.

MR FINCH: No, I am not suggesting that. I am just dealing with this problem here. What they did add in that power was a specific order, specific power, empowering the court to make such orders as it thinks fit for the purposes of effecting its decisions. That is an express power which is missing from the Commonwealth Electoral Act. We say that is neither here nor there, given the rest of the sections. But it is interesting to see, given his Honour’s suggestion at page 176 that it may be relevant to look at what Parliament could do as well as what it has done, that in an equivalent statute the Parliament has here gone one step further in enforcement, but I will come back to that.

KIRBY J: In these matters do you look at what Parliament has as a matter of history and fact done, or do you look at what the power authorises the court to do?

MR FINCH: That is why I took your Honour to the middle of page 176. It does seem that his Honour was there indicating that one looks not only at what Parliament has done – it may be a misreading of it, but what his Honour does seem to be suggesting is that one can look at what the legislature could validly go on and do by way of conferring enforcement.

KIRBY J: But there is a problem with that, because then we are releasing the judicial power to the whim of Parliament. That cannot be right.

MR FINCH: Your Honour has to look at what powers are given to the Court when sitting as the Court of Disputed Returns as part of the process of analysis of the power being exercised, and the Parliament is the institution which prescribes the limits on those powers, as it has done in this Act.

KIRBY J: If you succeed in this petition, does that mean that the Court can only make a declaration, we have no power to quash the election? We have no power to quash the writs returning?

MR FINCH: No, your Honour, I am a little off point here, but your Honours will recall that the powers of the Court are set out in section 360 of the Commonwealth Electoral Act. The first thing that one sees about that section is that it is defined in an inclusive way rather than exclusive or enumerative way. It says:

The Court of Disputed Returns shall sit as an open Court and its powers shall include the following -

and there are a number of powers set out there which we say are typical, making allowances for the special sort of jurisdiction that is being exercised here of any court, and not surprising in any sense.

McHUGH J: Interestingly, notwithstanding that 360 gives a power to declare an election absolutely void or to declare any candidate duly elected and so on, when you go to 379 the Court is given the powers under 360 and in addition thereto is given the power “to declare that any person was not qualified”, et cetera, or is not chosen. Does that not indicate that the power under 360 is not as extensive as of 379(a), (b) and (c)?

MR FINCH: It is a possible indication, we concede that, your Honour. We say that that is not the better reading of it. The better reading of it is simply that for more abundant caution, it needed to be stated when there is a reference from the Senate these powers exist as well, which are particularly referable to the circumstances in which the Senate may do that. There is no reason, we say, for reading down the inclusive nature of the power set out in 360. If it is right that the Court of Disputed Returns is the High Court, it is a superior court of record, there is no reason to read down the extent of its powers.

KIRBY J: But you could not make declaration 379(a) under section 360.

MR FINCH: We say we could, your Honour. We say your Honours are empowered to do that.

KIRBY J: No, the solutions in Division 1 are, are they not, those in section 360?

MR FINCH: Your Honours, we are not actually asking your Honours to make that declaration, but we say that there is nothing in section 360 to limit ‑ ‑ ‑

KIRBY J: It is a question of the scheme; it is the question of the theory of the Act.

MR FINCH: All this is, we say, your Honour, is a recitation for more abundant caution of the sort of power which is exercisable by the Court, sitting at the Court of Disputed Returns, in these particular circumstances, to remove any doubt at all.

KIRBY J: And there is nothing in the second reading speeches, going back to 1902, that explains this, or when the new Division 2 came in?

MR FINCH: Not so far as I have found out and I do not think anyone else has found anything helpful in them, your Honour.

GUMMOW J: The end result may be that this is one of these rather constricted section 76(ii) matters of the species that was validated recently by the majority in Abebe.

MR FINCH: Yes. Your Honour it is not fatal at all to our case to find, for instance, that the powers which may be exercised by this Court are indeed limited to those enumerated in section 360.

GAUDRON J: Well not unusual, not surprising, in the context of section 374, which is a self-executing provision.

MR FINCH: Yes. It has already been held by this Court that there are incidental powers, or ancillary power, as well as those set out in section 360, and I do not know that that is in controversy between the parties, but if one assumes that be right, one asks this question: where do they come from, the power to make orders, for instance, as was done in Sykes v Cleary about the consequences of the findings? Where do they come from, we say? They have got to come somewhere outside the list (i) to (x) in section 360(1), because it does not say anywhere there, consequential or necessary incidental orders. We say the source of that jurisdiction is simply the inherent power of the Court. There is no reason why we say it should not have one, but if there is a view that it should not ‑ ‑ ‑

GUMMOW J: This is a statutory court; you have got to be careful of using the word “inherent” up here.

MR FINCH: Indeed, your Honour, but notwithstanding it is a statutory court, the words are used in the first two words of subsection (1):

its powers shall include the following: -

and one would wonder why those words of inclusion were used if they were not meant advisedly.

KIRBY J: I think the point is that “inherent” may be the wrong word. It may be implied or ‑ ‑ ‑

MR FINCH: I accept that, your Honour.

GUMMOW J: The question is, how much is picked up under the Judiciary Act in those provisions? Section 33, is it not?

MR FINCH: That is right, your Honour.

GUMMOW J: Which is a judicature-type provision in the Judiciary Act. You can do what has to be done to effectively dispose of the matter.

MR FINCH: Yes, your Honour. We say, everything that there is ‑ ‑ ‑

GUMMOW J: This matter may be constrictive as I have just been saying in the light of Abebe.

MR FINCH: And what we say is, everything is picked up from there, which is not inconsistent with the exclusions which are mentioned, the limitations which are set in the Commonwealth Electoral Act. And there is nothing wrong with those exclusions and limitations in so far as an analysis of judicial power is concerned.

Your Honour, I think I broke off there looking at Munro and, what I wanted to take your Honours to, because of Justice Gummow’s question about whether or not any of these remarks about function or characterisation dealt with the current subject matter. If your Honours look at page 178 of the report of that judgment, at about point 8, your Honours see, at the bottom of the page, the last paragraph:

Partly repeating, for emphasis, some previous observations, I would say that some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. An appropriation of public money, a trial for murder, and the appointment of a Federal Judge are instances. Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government. Rules of evidence, the determination of the validity of parliamentary elections –

and the quote then goes on at the top of page 179:

The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances. Deny that proposition, and you seriously affect the recognized working of representative government. Admit it, and the provision now under consideration is fully sustained.

Now, the proposition there was not, in fact, an electoral proposition, but it is interesting, we say, to note that one of the matters that his Honour considers as a candidate for the inclusion in that class, which may depend for its characterisation upon the body which exercises it, is precisely the power under consideration today.

We say that that fits very well within the remarks that I read out earlier from Kable. Perhaps, even more interestingly, if I can go back in time to the first time where these provisions were seriously considered by the High Court and that is the decision in Chanter v Blackwood (1904) 1 CLR 39. To meet a question which will come from Justice Kirby in due course, the members of this Court, as your Honours see, Chief Justice Griffith, Justices Barton and O’Connor; the Court in Holmes v Angwin which was heard two years later was the Chief Justice Griffith, Justice Barton and Justice Higgins, so there were two of the same members of the Curt in two years time were going to consider Holmes, and in that context, if one has a look what was said here ‑ ‑ ‑

KIRBY J: I notice the headnote says that it is on reference from the “Court of Disputed Returns”, it does not suggest they are sitting, and then on the sidenote it says, “H. C. of A.” which I assume means the High Court.

MR FINCH: Yes, this is not the High Court sitting as the Court of Disputed Returns.

KIRBY J: Should we refer these questions into the High Court of Australia and remove all these doubts?

MR FINCH: I think there would be a little trouble with that.

KIRBY J: If it was good enough for their Honours in 1903 ‑ ‑ ‑

McHUGH J: The matter is already referred into the High Court.

GAUDRON J: Yes, we are already here as the High Court.

MR FINCH: Yes.

KIRBY J: Are we, or are we not, the Court of Disputed Returns? I would like to know. Before this case is over, I would like to know which hat I am wearing and whether I am being paid for it.

GUMMOW J: Case stated says it was referred under section 18 of the Judiciary Act and I said earlier this morning, that is directed to the High Court. So, there is some assumption being made of those who stated the case.

MR FINCH: Yes, I think in the first couple of minutes I said that so far as we were concerned, at least, this is the High Court and the case has been stated pursuant to section 18 and properly so. If there were any doubt it, one could, no doubt, change horses and call it a reference under Order 35, but there is no need to do that, we say.

In Chanter v Blackwood, your Honours, there was a petition which came on before the Chief Justice - and that is referred to at the bottom of page 42 - and the Chief Justice then referred to the Full Court a number of questions. Those questions are set out at items 1, 2 and 3, 3 being at the top of page 43, although the Chief Justice admitted that he had not set out the question with great felicity later on.

McHUGH J: What point are you taking us to this case for? What is the proposition?

MR FINCH: Your Honours, I was taking your Honours through a number of cases which said that the High Court, when considering questions like this, has acted consistently with our proposition that this is a judicial power which is being exercised, not a non-judicial power, and as part of the general background submission that it is important to look at the repository of the power for that purpose.

KIRBY J: But if we are the High Court, and if there has been referred into us, under the Judiciary Act, of certain questions, then we are indubitably exercising the judicial power of the Commonwealth unless there is no power of reference from a Court of Disputed Returns.

MR FINCH: But the question, more specifically, your Honour, relates to whether or not - question 1 was whether or not section 354 validly confers jurisdiction on the High Court sitting as the Court of Disputed Returns. It is not a question about your Honours’ jurisdiction to hear this case stated, it is a question about this Court sitting as the Court of Disputed Returns hearing the petition.

KIRBY J: So, the outcome of this litigation would be either yes or no, and if yes, it would go back to the Court of Disputed Returns, would it, to hear and determine the petition but conformably with the determination by this Court.

MR FINCH: Yes, your Honour, and not only answer to question (a) but if we are wrong on question (a) then there is no need to go on because the petition fails.

KIRBY J: The question was reserved into this Court by the Chief Justice sitting as the Court of Disputed Returns?

MR FINCH: Yes.

KIRBY J: So, if the Court of Disputed Returns cannot be constituted under the Constitution, there would be no power to refer a matter into the Full Court of the High Court?

MR FINCH: That is right, your Honour. Your Honours see at the top of page 43 one of the questions was:

Whether the High Court as a Court of Disputed Returns has any and what jurisdiction in respect of illegal practices.

KIRBY J: This is why I asked earlier – I just do not quite understand, maybe there is something that I have missed - why your interest would not seek relief under section 75(v) directed to the second respondent in their purported acting upon the return or returning writs which you say are unconstitutional, in the circumstances?

MR FINCH: Yes.

KIRBY J: That would avoid all of these questions. Have I missed something in that respect, or ‑ ‑ ‑

MR FINCH: It may be necessary, in due course, your Honour, but all we are here for at the moment was on the petition itself, the question of any potential action against the second respondent has not been thought of.

KIRBY J: But, would not it have been more economical - so that if you failed for a constitutional reason in the Court of Disputed Returns, that the substance could be dealt with to have returned at the same time before the High Court indubitably exercising the judicial power of the Commonwealth under a section 75(v) proceedings?

MR FINCH: That was not before the Chief Justice and could not form part of the case stated and does not form part of the case stated.

GUMMOW J: The writ here was returned by the Governor of Queensland, surely, and countersigned by the Premier of that State. I think it is the book.

MR FINCH: Yes.

GUMMOW J: We do not enjoin viceregal officers.

MR FINCH: No.

GUMMOW J: In any event, that gentleman is not an officer of the Commonwealth.

MR FINCH: No.

KIRBY J: The Premier is not viceregal.

MR FINCH: Can I just take your Honours to page 75 of this decision for this point, and again, with respect, there perhaps is not much dispute about this sort of principle but it is relevant that it was said in the context of a reference from the Court of Disputed Returns. Your Honours see at about point 3 the paragraph commencing:

As to the next question also I entirely agree with the opinions expressed by the other members of the Court.

Your Honours, I simply do not go to those because this is briefer.

I was at first inclined to think that the very definite and wide terms in which jurisdiction was given to this Court, would enable it to exercise all the powers which Parliament could exercise in the case of disputed returns; but I have come to the conclusion that that cannot be so. This Court, being a judicial tribunal, when power is given it to decide, has power to decide only according to law. It must get its power from the law; either from the law laid down in the Act itself or from the Common Law.

The only importance of that is to meet the submission by the first respondent that in some way, because of the inherent nature of challenges to disputed elections, that this Court somehow acts in an administrative way, or according to policy dictates, or otherwise than according to law and we say that the Court has never so acted and there are precise statements to the effect that it is bound not so to act.

I have referred a couple of times and I will not say it again to the basis upon which then we distinguish the current circumstances from those which apply in Holmes (1906) 4 CLR. I do not want to take too much time about it but if one goes to those decisions, and I will go to them very briefly, this is simply to support the proposition that they are not capable of standing as authority for the proposition that in all circumstances powers such as those set out in Divisions 1 and 2 are irretrievably non‑judicial.

KIRBY J: Do you seek to distinguish the legislation that was considered there for Western Australia and the present Act or do you simply say the decision is wrong?

MR FINCH: The legislation is slightly different and I will take your Honour to the precise nature of that difference butin any event, we say that looked at in the light of Hilton v Wells and the sorts of considerations which this Court have indicated are appropriate when approaching this question, these two decisions would be decided differently today.

It is perhaps useful to see very briefly the facts, your Honours, commencing at page 298 at about point 5. There was:

A petition was brought to the Court of Disputed Returns under the Electoral Act, (W.A.) (No 20 of 1904)…..the Chief Justice of the State of Western Australia, sitting as the Court, declared the election void and the appellant not duly elected –

and your Honours will see:

Under the Electoral Act, sec 159, the validity of any election or return is disputed by petition addressed to the “Supreme Court”…..the tribunal being constituted by a single Judge.

What their Honours did in essence there was to read those words, that is “to the “Supreme Court”…..the tribunal being constituted by a single Judge”, as justifying a conclusion that the power was conferred personal designata, and ‑ ‑ ‑

GAUDRON J: Or was it that it was a special tribunal independent of the court?

MR FINCH: They used, I think, both expressions, not only here but later. I could take your Honours ‑ ‑ ‑

GAUDRON J: Well, they certainly asked the question –I am reading at page 304:

or did it in substance create a new and separate tribunal, consisting of a Judge of the Supreme Court as a persona designata?

MR FINCH: Yes, that is why I say, your Honour, they used both expressions at the same time and ‑ ‑ ‑

KIRBY J: I think that is a very important point of distinction in the legislation. Section 354 says, “The High Court shall be the Court of Disputed Returns”, whereas here it is said it shall be vested in, in brackets, the Supreme Court constituted by a single justice. Hyphenate all those words and you have a new and different tribunal.

MR FINCH: That is why I say to your Honour the legislation is different and for that reason does not stand for any authority that in circumstances such as the present where the High Court is constituted plainly not the Judge as persona designata, but the same result should flow. The wider ‑ ‑ ‑

KIRBY J: You have taken a much heavier burden when you seek to have the Court overrule a decision that has lasted nearly 100 years, and if it is simply distinguishable by the legislation, you do not have to assume that burden.

MR FINCH: As your Honour recalls, that was my first point, that they simply do not stand for the proposition that is put because they concern different legislation. But your Honours will see – and I will not take your Honours all the way through it now – there was quite a discussion in both of these cases about the nature of the powers conferred by the equivalents of Division 1 and Division 2, and on one reading of those discussions, it might be thought that their Honours were there saying that wherever one finds such powers, one sees in them a non-judicial character.

We say that would be a false impression. One of the reasons it is a false impression is that they were written in the context not of conferral of jurisdiction on a court, and that entirely different considerations such as those referred to by Justices Gaudron and Gummow in Kable apply when the jurisdiction is plainly conferred on a court. The fact that this was recognised even prior to Holmes v Angwin appears from the extract that I took your Honours to from Chanter v Blackwood where in 1904 Justice O’Connor said it in terms that if one finds this jurisdiction in a court, then the court acts according to law. We say that there is plainly indicated in that sequence of cases the answer to the proposition that these powers are in some way inherently non-judicial. The answer is, we say, they are not inherently non-judicial and that conclusion is reinforced where they are exercised by this Court rather than some other committee or body.

I will not take your Honours through the rest of those decisions. They have perhaps been discussed enough along the way. But the next decision which is relied upon is that of Webb (1939) 61 CLR 313. In the same way, I will not take your Honours all the way through it.

The same distinction, your Honours, is available when considering this case. It was a different tribunal, but a similar distinction is available. If your Honours look at page 317 in the judgment of the Chief Justice, there was a slight wrinkle in this case which is of some interest, because it illustrates the proposition we are putting, perhaps. Your Honours see that the matter came before the High Court in this way. There was an Elections Tribunal which was established under the Elections Act 1915 of Queensland. Section 101 of that Act, constituted that Tribunal this way: it:

shall be constituted by a judge of the Supreme Court. The Elections Tribunal shall be a court of record.

Following the approach in Holmes, the Court decided that that Elections Tribunal was a court which had had power conferred upon it persona designata. Importantly though ‑ ‑ ‑

GUMMOW J: But they really had to decide here that the Queensland Full Court ‑ ‑ ‑

MR FINCH: That is what I was coming to, your Honour. Importantly, there was a provision in this Act for an appeal to the Full Court, and the Court was of the view that because the appeal was on a question of law, that once it reached the Full Court stage and the Full Court was adjudicating the question, there was nothing inherently non‑judicial about it, and that it was judiciable by the High Court.

It is important in two ways: firstly, it is not authority for the proposition that powers of this sort are non‑judicial wherever you find them, because where you find them, in this case, was different to where you find them in today’s case, because the power was conferred on a judge considered to be a person upon whom the power was conferred persona designata. But, even in that case, once the power left a persona designata adjudicator and moved into a court, there was no difficulty.

At page 319, the Chief Justice made that plain. He said, at about point three, he agreed:

The elections Tribunal is not the Supreme Court of Queensland –

and then at about the middle of the page:

The respondent succeeds in establishing…..that the elections Tribunal is not –

that court. His Honour then sets out the appeal right in section 118. And then at the bottom of the page:

the respondent then contends that it is not a judgment –

that is, of the Full Court -

which affects any rights of the parties so to be a judicial act which can be the subject matter of appeal. The contention is that it is a decision in aid of administrative or parliamentary action. In my opinion an answer to this contention is to be found in the facts that the Elections Tribunal itself is established as a court of record and that an appeal may be taken to the Full Court upon questions of law. The Full Court…..is exercising a judicial function between parties.

Although that was the majority view, I should point out, your Honours, that Justice Starke, with whom Justice McTiernan agreed, thought that the non‑judicial nature of the Elections Tribunal, in essence, infected the whole process from top to bottom, and then even when it reached the Full Court of Queensland, the power being exercised was non‑judicial. But that view did not prevail.

I will not take your Honours back, but your Honours will recall the reference to Chanter v Blackwood at page 75, which is relevant in the same connection. A case I have not taken your Honours to yet, in a similar connection, is R v The Governor of South Australia (1907) 4 CLR 1497. Your Honours, in that case what occurred was that there was:

A petition presented to the Court of Disputed Returns under the provisions of the Commonwealth Electoral Act 1902 –

This was just before the introduction of the predecessors of Division 2.

The Parliament of South Australia, assuming to act under sec. 15 of the Constitution, chose a person as senator to fill the vacancy –

which resulted from the determination of the Court of Disputed Returns. The candidate who had been declared not duly elected, then applied to the High court for a writ of mandamus to compel the governor to issue a writ for a new election, essentially challenging the decision of the Parliament to simply choose somebody.

Your Honours see the history commences at page 1498 at about the middle of the page, and then towards point 7:

The petition was heard before His Honour Mr Justice Barton, who on 1st June 1907 declared the election was absolutely void –

Then at page 1503 – I will attempt to make this as brief as possible, your Honours - your Honour sees that a submission was made, which is close but not right on the matter which is of interest today:

The power to inquire into election matters is not part of the judicial power of the High Court as such, but is given to it as a special tribunal, and can only be exercised in respect of the matters committed to it as such tribunal by the Statute: Holmes v Angwin.

The reference there to section 192 of the Act is a reference to the predecessor of section 353 in today’s Act.

Then Justice Barton gave the judgment of the Court and, turning to page 1509, your Honours see it recited there that, at about point 3:

In execution of the power conferred by section 47, the Commonwealth Electoral Act 1902 provided that the Court of Disputed Returns may declare that a senator who has been returned as elected was not duly elected, or that an election was absolutely void. It also provided that if the Court declares that the election is absolutely void a fresh election shall be held.

Then, turning through, having recited that question, reciting on page 1512 in terms which I will not take your Honours unduly to:

it is settled law that a mandamus will not lie against an officer of the Crown to compel him to do an act which he ought to do as agent for the Crown, unless he also owes a separate duty to the individual –

Interestingly though, it says at page 1513 – and this is interesting in the light of the fact that this is 1907, the year after Holmes v Angwin – one of the judges on the Court says in the last paragraph:

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, although it is not terribly important, it was plain that there was in his Honour’s mind, having been a judge in the previous year in Holmes v Angwin, absolutely no doubt that if the conferral of power was a conferral upon the Court rather than upon a person upon whom was conferred persona designata, there was no question about the exercise of judicial power.

KIRBY J: Could those words in commas be taken to mean “whether Parliament calls this Court the Court of Disputed Returns or anything else, it remains the High Court of Australia under the Constitution”?

MR FINCH: Yes, “and we can give that power to it”. The fact that it has got the label “Court of Disputed Returns” stuck on the door, we say, is neither here nor there. There are certain limitations and boundaries provided for in the Act which confers jurisdiction but that is no different to many sorts of jurisdictions which have limits and boundaries, circumstances in which relief can be granted and cannot be granted.

GLEESON CJ: Mr Finch, how long do you expect to require to complete your argument on the jurisdiction question?

MR FINCH: I have almost finished on jurisdiction. I would then have to move to the difference between Divisions 1 and 2 which, I think, have been dealt with out of order along the way.

GLEESON CJ: Yes. I thought you had covered that.

MR FINCH: Then I have to deal with the question of foreign. The other questions I was going to leave to the written submissions, your Honour. On the question of foreign, I think I would be reasonably short, perhaps about an hour, three quarters of an hour.

GLEESON CJ: Very well then. We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Finch.

MR FINCH: I thank your Honours. In the course of exchanges in the morning I think I have said all I need to say or can say about judicial power. There are some additional matters which are in the written submissions, and if I may, with respect, adopt the submissions filed by the Attorney as well.

In connection with the competition between Division 1 and Division 2, if I can put it that way, there is another argument that we had intended to take your Honours’ time with this afternoon, but to avoid taking undue time perhaps I can leave it to Mr Bennett. It concerns the role of the continued application of the common law and the implications that that might have for the inclusions of Division 1.

If I can then move on to the question which is next raised, question (b) under the stated case, concerning the issue of whether the United Kingdom is, for the purposes of section 44(i) of the Constitution, a foreign power. I will not take your Honours’ time with preliminary questions on that. Your Honours will recall that the question of when one asks that question has been addressed in Sykes v Cleary, and I will not take your Honours all the way through it. Your Honours may recall that in the report of that case at 176 CLR 77 Chief Justice Mason and Justices Toohey and McHugh discussed the question of when one asks this question and discussed it in terms of the importance of the process of choice being examined. It had been suggested that the time of declaration of the poll was the relevant time but, as your Honour said, that is the announcement of the choice and not the making of the choice.

GLEESON CJ: I do not understand it to be suggested that there was any material change in the facts of circumstances between the date of nomination and the date of declaration of the poll.

MR FINCH: Your Honour is right. Whatever else be the case, it does not matter in this case because for the whole of the relevant period covered by the term of the election, the circumstances did not change. So that nothing turns on the precise time at which the question might be asked. For that reason, I was not going to take your Honours through the various authorities about when that time is. If the question is relevant to be asked and answered, we would, with respect, adopt what was said by the majority in Sykes v Cleary.

This case, in so far as it concerns the question of whether or not the first respondent was a citizen of a foreign power, is not made more difficult by questions which have arisen in other cases before this Court of the acquisition or loss of citizenship in certain circumstances involving personal attachments and the like. There is no dispute that at all material times the first respondent was an Australian citizen and a citizen of the United Kingdom. The question is whether, in light of those circumstances, the disqualification is operative.

KIRBY J: Is there a preliminary factual question as to whether, by making her pledge to Australia, that that signified, as a matter of fact, that the respondent was renouncing her United Kingdom citizenship, a matter upon which our Constitution would speak for itself and not be determined by a United Kingdom statute in that regard?

MR FINCH: We would say that is not a preliminary question, that question most appositely arises when one considers, in the words of Sykes v Cleary, whether “reasonable steps had been taken to renounce”.

KIRBY J: But they are words in a judicial opinion, they are not words of the Constitution.

MR FINCH: That is right, your Honour, but the question, we say, of the status of any renunciation is, we say, one which is passed at the time of reasonable steps. There is no dispute between the parties that at all material times the first respondent was a citizen of the United Kingdom. The question is whether, by what she did, what she thought, what she believed, she had taken effective steps to renounce that citizenship and we say that, consistent with the decision in Sykes v Cleary, that what she has done is not sufficient to qualify as reasonable steps.

Considerations of the sort referred to by your Honour were looked at in that case by Justice Gaudron but we say that, in light of the decision of the majority, the decision is reasonably simple, and I will come to it in a moment and I will not spend undue time on the facts, but we say that the steps taken, such as they were, by the first respondent in respect of her British citizenship fell somewhere between those that had been taken by Mr Delacretaz and those that had been taken by Mr Kardimitsis in Sykes v Cleary. In both of the circumstances of those individuals, the Court found that they had not taken sufficient steps.

On your Honour’s point for a moment, your Honours will recall, and this is something that Justice Gaudron adverted to in Sykes v Cleary, there was a change in the renunciation, if I can put it that way, legislation which occurred in 1986. Perhaps I can take your Honours very briefly to Sykes v Cleary just to take up that point before I get on to the other points.

KIRBY J: In a sense there is an earlier question, is there not, in the sense that Mr Delacretaz was a Swiss national originally and Mr Kardamitsis was a Greek national?

MR FINCH: Yes.

KIRBY J: Upon one view, the position of the United Kingdom is different in our Constitution from either Switzerland or Greece.

MR FINCH: It is.

KIRBY J: We have to construe what “foreign power” means not in theory or in general or for other purposes as, for example, in the Spycatcher litigation in the general law, but what it means in the context of the Australian Constitution.

MR FINCH: Yes.

KIRBY J: That is a constitution that makes several references to the United Kingdom which we have to consider in the context whether those references expel what might otherwise be the notion that the United Kingdom is now seen as a foreign power from the meaning in that provision, section 47.

MR FINCH: Yes. Your Honour, I will come to this in a moment. It is a little out of order. What we say is that what is meant by “foreign power” has not changed since 1900. The content of the definition, though, in the sense of the list of countries comprehended within that definition has changed. That is not because the definition itself – the words have not changed their meaning, it is just that those words apply to a different set of countries by reason of an evolution rather than a revolution of legal and political circumstances. That evolution was summarised in Nolan which I will come to in a moment.

CALLINAN J: Mr Finch, does anything turn upon he use of the word “power” in “foreign power”? The notion of power may have an implication of something that is perhaps not benign. It is an unusual phrase when “foreign countries” and other different expressions are used in the Constitution.

MR FINCH: Yes. Your Honour recalls that it is used in connection with the other phrase, “citizen or subject of”. The utility of the use of the word “power” is that it may include not only a country but an individual, so that one may be, for instance, a subject of a foreign power in the sense that one is a subject of a foreign King.

CALLINAN J: It does not say that, though. I would not equate “King” with power. Indeed, these days not too many monarchs do have too much power.

MR FINCH: Yes. Your Honour, we would say that because of the juxtaposition of the words “subject or citizen” and the words “foreign power”, that power cannot describe a process, it has got to describe an entity.

CALLINAN J: Yes.

MR FINCH: If it describes an entity, we would say that the only sensible entities which exist for consideration would include individuals such as monarchs, or perhaps dictators, Parliaments or countries.

CALLINAN J: “Power” does not strike me as synonymous with “monarch” or “dictator”; it strikes me as having something to do with a polity.

MR FINCH: Yes.

KIRBY J: It may be that the word was chosen because of the fact that in 1901 there were many empires and therefore a person might be a subject in the Belgium Congo of the King of the Belgiums, and Belgium would be, for that purpose of foreign power, that they may not be in the country, Belgium.

MR FINCH: Yes, it may be though that the key to your Honour’s remark though is that that person was a subject of the King rather than a subject of the country. We would say that the word “power” is apposite to encompass the sort of entity which exercises the dominion over the person in question, whether it be an individual, an institution or a country, but the word is of perfectly wide application. What, for today’s purposes, that debate means, I would suggest, with respect, is perhaps uncertain; it does not affect our argument on whether or not the first respondent is a citizen of a foreign power. We say that whatever else “power” means, it certainly includes the United Kingdom.

CALLINAN J: Well, not if one were to take the view – and I am not suggesting that this is the view that should be taken – that the reference to “power” is intended to be a reference to something that is non benign, as it were.

MR FINCH: We would, with respect, would not say that there is anything about the word “power” which necessarily or even incidentally imports malevolence of any sort.

CALLINAN J: No. It is an unusual word to chose though, is it not?

MR FINCH: Yes. It is perhaps an early 20th century sort of word.

CALLINAN J: “Foreign nation”, “foreign sovereign”, “foreign country”; all of those might have been more apt or better encompassed by your argument.

MR FINCH: It is not a phrase which appears anywhere else in the Constitution and certainly not defined in the Constitution. The sorts of phrases which are used to denote what we might call “otherness”, for want of a better word, in the Constitution, are those we have extracted in paragraph 44 of our written submissions. The expressions include “other countries”, “aliens”, “foreign corporations”, “external affairs” and a more specific instance, “the islands of the Pacific”. For today’s purposes though we say it is sufficient to submit that the word “power” is wide enough to encompass the United Kingdom, so there is certainly no reason to read it as being narrower than that.

CALLINAN J: Well I think you have got to define it myself; I do not think you can simply say it encompasses something without first defining it.

MR FINCH: Yes. The task could be approached in the context of the rest of the words of 44(i). Your Honour recalls that there are some introductory words which are not relevant to today’s processes:

Any person who –
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power –

It is plain, we say, that the words “foreign power” are simply to be taken as an indicator of the sort of entity in the international affairs to which persons commonly acknowledge allegiance, obedience or adherence. They would include not only countries in the general sense but individuals in the sense of monarchs or institutions in the sense of Parliaments. It is difficult to imagine, we say, what else “foreign power” could mean. We would not ‑ ‑ ‑

HAYNE J: Is it not language which at the time of its original use was apt to encompass both the Republic of France, the King of the Belgians and other forms of nation state organisation?

MR FINCH: Yes, and we would say quite deliberately so, your Honour. It means, as widely as it can, to encompass the concept of otherness. That is something not Australia, the set of all things not being Australia.

CALLINAN J: Why does not the word “alien” do that?

MR FINCH: We say that, in effect, it does do that. An alien is a person who is a citizen of a foreign power. It is just that the word “alien” is directed to individuals. This is directed to the entity to which that individual owes allegiance, obedience or adherence or is a subject or citizen.

CALLINAN J: Do you say that the word “alien” could have been used?

MR FINCH: No, because the object of section 44(i) is to look at the entity rather than the person. “Alien” is used, we say, as a description of the person. I ‑ ‑ ‑

GUMMOW J: You would not be an alien if you owed allegiance to the Crown.

MR FINCH: That is right.

GUMMOW J: But you might also, by reason of some circumstances, owe allegiance to some other country and therefore be disqualified under 44(i), which is this case, on your case.

MR FINCH: Yes, your Honour. With respect, precisely.

McHUGH J: An Australian citizen could come within section 44.

MR FINCH: Yes, your Honour, and two of them did in Sykes v Cleary. Your Honour found, with the other members of the majority ‑ ‑ ‑

McHUGH J: Yes, but an Australian born. A citizen in residence could come within 44(i). In Joyce’s Case it was held that holding a British passport, even though you are an American citizen, meant that you owed allegiance to the British Crown.

MR FINCH: There is no reason for distinguishing your Honours’ and other remarks in Sykes v Cleary between people who are Australian citizens because they were born here and people who are Australian citizens because they acquired it some other way, and there is no reason for making that distinction in this case either. We do not suggest, for instance, that such benefit or advantage as the first respondent can marshal in this case is any weaker because she was not born an Australian.

McHUGH J: No, Lord Haw-haw was hanged because he still had a current British passport, even though he was American born, and he fled to Germany just before the start of the war.

MR FINCH: We say this boils down to a very simple question, but one of the questions that is not raised here is a question which involves any distinction between an Australian born citizen and a citizen who has acquired Australian citizenship in some other way, but we say that is simply is not raised, and would not affect the argument if it were.

McHUGH J: You seem to put a distinction between what in the jurisprudence of this Court is called a connotation and denotation or which Professor Dworkin would say is the difference between concepts and conceptions.

MR FINCH: Yes, your Honour. The distinction of connotation and denotation has been used in this connection, your Honour, in the authorities as your Honour knows.

McHUGH J: But given that “foreign power” is an abstract term which is capable of a progressive interpretation or apply to situations of the founders, the framers may have thought it did not apply to you. What do you say about the many references in the Constitution to the United Kingdom together with the words of the preamble and accompanying clause 2 about heirs and successors to the sovereignty of the United Kingdom? Why is not the correct view that whatever “foreign power” means, the Constitution indicates that the United Kingdom is outside the concept?

MR FINCH: We say that it does not do that. The references to the United Kingdom elsewhere in the Constitution are there as a matter of historical record. None of them mean “considered alone” or “together” but, at some stage, after 1900, the country called the United Kingdom would not become a foreign country. The Acts which are recited there which involve that country, legislative Acts and other Acts, remain recited as they are. They are historically correct. We do not seek to change them now.

McHUGH J: But how could England have been a foreign country for the purpose of the Constitution before 1986? After all, the Commonwealth Government and the States went to the United Kingdom Parliament and asked it to legislate for them.

MR FINCH: Your Honour is aware that there is an interesting debate about when, if at all, the United Kingdom became a foreign power. What we are suggesting occurred – I am jumping ahead a little again, leaving aside some of the background, and this is discussed in Nolan ‑ ‑ ‑

McHUGH J: In Nolan?

MR FINCH: Yes, this process of evolution and, we say, discussed in a binding way which is directly applicable to the circumstances of this case. This was an evolutionary change. There were a number of signposts along that evolutionary path to a developing foreignness in the United Kingdom and the full stop to the process, if one looks to put a full stop anywhere, occurred with the passing of the Australia Act.

KIRBY J: These are Acts of Parliaments. How can they change the Constitution without the authority of the people?

MR FINCH: Because the Constitution is not being changed, your Honour. What is comprehended by the words “foreign power” is changing as a matter of international polity.

GLEESON CJ: If Western Australia had effectively carried out one of its numerous threats to secede, would it now be a foreign power?

MR FINCH: Yes.

GAUDRON J: That might depend, might it not ‑ ‑ ‑

MR FINCH: Of course, it depends on whether we accepted it or not and whether we continued to maintain that that Act was invalid but, assuming that it effectively seceded, the answer is yes.

GAUDRON J: There is an area of Western Australia which ‑ ‑ ‑

MR FINCH: Prince Leonard’s principality of Hutt.

GAUDRON J: Yes. It has not been recognised.

MR FINCH: No.

KIRBY J: Is Paua New Guinea a foreign power? It must be, must it not, on your ‑ ‑ ‑

MR FINCH: I think the answer must be yes, your Honour.

KIRBY J: It was not, of course, at the time of the Constitution. That, you would say, was an illustration of how something can move in and then out of its relationships with Australia?

MR FINCH: Yes.

KIRBY J: Start as a foreign power, or part of the German empire, at least the non‑Papua part, and come into our polity as a territory and then move out and become a foreign power.

MR FINCH: It simply depends on the changing nature of the relationship between countries. There is no rule that says they cannot change. There is nothing in the Constitution that says expressly or impliedly that the United Kingdom, despite its historic links, which are of course acknowledged, cannot become a foreign power.

KIRBY J: You have to bite on Justice McHugh’s question because the words “United Kingdom” appears in this text. It is still in the Constitution, and it has to be somehow reconciled with “foreign power” in section 44(i).

MR FINCH: We say the Court has already done that exercise in Nolan and I will take your Honour to that.

KIRBY J: But not for this purpose. That was on the alien question.

MR FINCH: Yes, your Honour, but we say in that case “alien” is simply the other side of the coin of “foreign power”. The discussion of the relationship between Australia and the United Kingdom in that case we say is applicable to both arguments. There is no good ground of distinction between talking about a subject or citizen of the United Kingdom and deciding whether the United Kingdom had so distanced itself over the years so that its subject was now an alien, and speaking solely of the United Kingdom without reference to any of its subjects.

GAUDRON J: I am wondering if it is not so much the United Kingdom you should be concentrating on, but the Queen of the United Kingdom as the foreign power. It may be one thing to say that the United Kingdom is a foreign country, another thing to say that the Queen of the United Kingdom is a foreign power.

MR FINCH: We would say both.

GAUDRON J: You might have to, might you not, for 44?

MR FINCH: We would say that the Queen is a foreign power, but so is the United Kingdom.

GAUDRON J: The former is a more difficult proposition, I would have thought.

MR FINCH: It is perhaps a little more difficult. We say we do not have to put it.

McHUGH J: May not both those answers be wrong? May not a foreign power mean no more than a sovereign that has no power to legislate to the Australian people?

MR FINCH: I am not sure what your Honour means by the word “sovereign”. The use of the words ‑ ‑ ‑

McHUGH J: I mean sovereign because I mean an entity, be it human or political, in which is vested sovereign power to legislate.

MR FINCH: Yes.

CALLINAN J: As used in the Constitution. “The Queen in Parliament” meaning the Queen in the United Kingdom Parliament.

MR FINCH: We say that that is no longer the case, that the reference there should be taken to the Queen in right of the Queen of Australia and that in so far as the right of any foreign legislature to legislate in respect of Australian laws at least since 1986, that that is the end of that process and that can no longer occur.

McHUGH J: But this a British statute, however unpalatable that may be to many people. It is still to be construed in accordance with the Interpretation Act of the United Kingdom. When I swore an oath in accordance with the schedule to the Constitution, was that not to the successors of Queen Victoria?

MR FINCH: Your Honour swore, in particular, to the Queen in right of Australia being one of those successors. The fact that she was also a successor of a Queen and was herself a Queen of the United Kingdom we say is no longer relevant.

KIRBY J: The schedule to the Constitution is only an oath taken by Ministers of the Crown as part of the Commonwealth.

McHUGH J: Yes, as Ministers.

KIRBY J: That refers to Queen Victoria. One thing that may support you here is that section 44– you have to look at what the purpose of the provision in section 44 is and it would seem to me the purpose is to ensure that people who take their place in the Parliament are under no conflicting obligation to any other nation, to put it in a very general way, and that if one is looking at that then in the evolution of Australia’s relationships with the United Kingdom if you are looking at the purpose of 44(i), the United Kingdom is now an entirely separate and distinct nation, we are now an entirely independent and distinct nation, and reading 44(i) with today’s eyes, the United Kingdom, although the language seems a little uncomfortable for us to use it, is a foreign power and the Queen in right of the United Kingdom is the sovereign of a foreign power and the purpose is to make sure that people who go into our Parliament are under no conflict of interest and duty or allegiance, whether it is to Fiji or Tonga or Switzerland or Greece or the United Kingdom, but only to Australia.

MR FINCH: Yes. We agree with that, your Honour.

CALLINAN J: Mr Finch, the problem I see with the evolutionary argument is this, that how can anybody say, looking back, at what point the change occurred? Now, I know what you say. You say that the evolution is complete and we can now say that Australia is separate and the United Kingdom is a foreign power but, if you start talking in terms of an evolution, you really have to be able to identify an event or a point in time, because otherwise people do not know their rights and obligations or indeed their status.

MR FINCH: Not necessarily, your Honour. We say it is part of the nature of an evolutionary process that it is very unlikely that one would be able to put one’s finger on it, stop the process and say, “At this moment the evolutionary page was turned and the entity moved from one thing to another”.

CALLINAN J: That is the difficulty.

McHUGH J: That is going to cause a few difficulties for the common informer suing for his or her “hundred pounds a day”.

MR FINCH: It may do, your Honour.

GAUDRON J: All you have to say is that it had clearly occurred by the time of the decision of this Court in Captain Cook v Kirmani.

MR FINCH: Yes.

HAYNE J: Is not the problem of the common informer dealt with entirely by resolving the particular case in which the common informer informs?

MR FINCH: Yes.

HAYNE J: That identifies the rights at that time.

MR FINCH: With respect, yes. Standing in this case at this point of time, it may well be difficult to reach out to various points of time and identify changeover points. If one has to do the exercise in another case, we say one does it in that case in those circumstances and looks at the relevant circumstances. It may well be, for instance, taking up something that Justice McHugh said earlier, that an important staging point, and perhaps the final staging point, was the Australia Act 1986 but it should be acknowledged, though, that 11 years before that time Chief Justice Gibbs had already made several remarks about the status of Australia as an emergent, independent and sovereign nation.

KIRBY J: I thought these things were said in the 1940s in relation to what had already happened by that stage when talking about the divisibility of the Crown. I though that some of the Justices have said that you cannot actually put your finger on when it happened but somewhere it occurred.

MR FINCH: Yes.

KIRBY J: Justice Murphy I think took the view that it began as at the moment of Federation.

MR FINCH: Yes, that was not a terribly popular view.

KIRBY J: No. Well, the other view has been that it happened somewhere in the period of the 1920s, possibly as a consequence of the First World War, the Versailles Treaty and all the other steps that were taken, but I am sure there are decisions on the divisibility of the Crown issue in which the Court has referred to this.

MR FINCH: There are quite a number of cases about it. They are summarised both in our written submissions and in the Attorney’s written submissions, your Honour.

GUMMOW J: None of those cases face up to the point that until 1986, State Governors were appointed by the Crown on the advice of British Ministers, and imperial honours were awarded by the Crown on the advice of British Ministers, true enough, initiated by an Australian State.

MR FINCH: That is why, your Honour, I said earlier I wanted to take the Court straight to ‑ ‑ ‑

GUMMOW J: That does not sound very foreign.

MR FINCH: - - - what the Court said in Nolan which speaks as of recently and, more particularly, speaks as of after 1986, and the events of that year can be put into the evolutionary context of the relationship between the two countries. It is not just Nolan, there are a number of other decisions. Notably, there is a decision of Justice Hayne on the same point.

GUMMOW J: The real problem was that contrary to what people of the mind of Alfred Deakin wanted, the States persisted to cling to these links. That was the problem. It was not that the British stubbornly insisting on them, it was the States who were stubbornly insisting on them.

MR FINCH: In fact, there is very little evidence of ‑ ‑ ‑

McHUGH J: I am not sure of that. There is, or there was on the books of the New South Wales Parliament, an Act passed by the Wran Government which purported to allow the Governor to do something – I forget what it did now, but ‑ ‑ ‑

GAUDRON J: Order to abolish appeals to the Privy Council and the Governor would not sign it.

McHUGH J: Yes.

GUMMOW J: That is because his letters of instruction were limited, and the letters of instruction were drawn up in Britain.

MR FINCH: Yes. There is no doubt, your Honours, such reluctance as has been, seems to have been most notably at this end of the relationship. One can see an example of that, perhaps, in the time which it took for the adoption of the Statute of Westminster.

GUMMOW J: The States did not want to be part of the Statute of Westminster that is what Captain Cook is all about, Captain Cook Cruises v Kirmani.

MR FINCH: Yes, it seems to be an example of that, that it took, I think, 11 years for that statute to be adopted.

McHUGH J: But there was also a provision in the Statute of Westminster Act that it did not apply to the States.

MR FINCH: Yes, but we say that that has all been subsumed into the evolutionary process, such that, by 1986 the Australia Act could declare, apparently, as an existing fact, Australia’s independence and sovereignty and do so without reservation and in terms which made it clear that there should be more legislative interference from the United Kingdom to Australia.

McHUGH J: This is the sort of argument, “Well, I know he is a fat man but I cannot tell you what weight he is”? It is that sort of argument.

KIRBY J: Or when he became fat.

MR FINCH: Or when he became fat.

CALLINAN J: How long before Captain Cook did it occur, before the decision in Kirmani?

MR FINCH: We do not point to a date, your Honour.

CALLINAN J: You cannot. I mean, what were people’s rights and obligations and what was their status in 1981?

KIRBY J: What about all those British subjects who were elected to the Parliament, took part in all those votes?

MR FINCH: That is a different question, your Honour. That is a special provision of the Australian legislature which says that people were given status had given rights. That had nothing to do with whether the country from which they derived their status was foreign or not. They could have said the same about Mongolians if they had liked.

CALLINAN J: If you can have an evolution type of argument about this, I would have thought you can have the same argument about all sorts of constitutional propositions and that must give rise to enormous difficulty.

MR FINCH: We say not. We say that the concept of the evolving content of definitions - and when I say “content” I mean what is included within the scope of the definition from time to time - is not novel or surprising. There is no reason to think that it is either mandated by the Constitution or a useful thing to do, to freeze international polity as at 1900 and pretend that the range of countries denoted by foreign power is the same now as it was then.

CALLINAN J: Something like this arose in relation to the Irish Free State, did it not?

MR FINCH: Justice Gummow has described those developments in a case called Kenny ‑ ‑ ‑

GUMMOW J: Mr Kenny.

MR FINCH: Yes, which is on our list of authorities, your Honour, and, with respect, there is a detailed history of what happened there and the effect upon Mr Kenny of the various changes in sovereignty, if I can put it that way.

CALLINAN J: What happened with India, do you know?

MR FINCH: Particularly in relationship to Australian citizenship?

CALLINAN J: No, in relation to the Imperial Parliament, when India became independent and partition occurred.

KIRBY J: Well, it first became a monarchy and the last viceroy was sworn as the Governor‑General and then in 1950 they became a republic as from 26 January 1951.

CALLINAN J: Was that by virtue of Imperial legislation?

MR FINCH: I cannot recall that; I thought there were Acts on both sides, your Honour, but I cannot say I can remember them at all.

KIRBY J: I think the first step, that is to say, to become independent, was Imperial and Indian, and the second step was as a result of a constituent assembly only of India.

MR FINCH: In further answer to your Honour Justice Callinan’s question, there is no virtue at all in preventing the evolution of the content of definitions.

McHUGH J: Well, I agree with you, but in this case it can lead to some interesting results in this very section. Take paragraph (iv):

holds any office of profit under the Crown -

Supposing a Minister is given an appointment by the Crown of the United Kingdom; is he or she disqualified under section 44 or, on your evolutionary argument, does the Minister escape the reach of section 44?

MR FINCH: On our evolutionary argument, the Crown would simply be an office of profit under a foreign power’s government. There is no particular reason to consider him as any different than an employee of a foreign corporation in those circumstances.

McHUGH J: I mean, he need not necessarily owe any – I suppose he might be entitled to rights or privileges of a foreign power.

KIRBY J: He might face a few political sanctions.

MR FINCH: Yes.

GLEESON CJ: I notice that the preamble to the Australia Act, concentrating on the Commonwealth Act, describes it as:

An Act to bring constitutional arrangements.....into conformity with –

what might be referred to as a factual status.

MR FINCH: That is why I said, your Honour, it was apparently declaring an existing state of fact when it said:

a sovereign, independent and federal nation - - -

KIRBY J: So it was not declaring a state of fact when it terminated the residual Privy Council appeals; that was something new?

MR FINCH: No, your Honour; the words here used, as the Chief Justice points out, is to bring certain things “into conformity with the status”, and sensibly that can only be the existing status and sensibly it cannot be a status which is conferred by this Act.

KIRBY J: I know it is an eccentric and personal view, but I have always wondered what the United Kingdom Parliament was doing enacting a law in 1986 in relation to Australia at all.

GLEESON CJ: Probably responding to a request.

KIRBY J: Well, it may have been, but it is a question of whether it ought to have been fussing around in our affairs. We have our own Constitution and our own way of changing it.

McHUGH J: Well, they did it in Canada as well, did they not?

MR FINCH: Yes.

GLEESON CJ: In your argument, is it the corollary of the proposition that the Commonwealth of Australia has the status of a sovereign and independent nation, that every other nation is foreign?

MR FINCH: Yes.

KIRBY J: And is a foreign power.

MR FINCH: Yes.

KIRBY J: Even New Zealand?

MR FINCH: They are very powerful, your Honour.

GLEESON CJ: Well, I imagine Iceland is a foreign power.

MR FINCH: Yes.

KIRBY J: That I can accept.

MR FINCH: But what the Chief Justice says to me, we accept; the answer to that question is yes. The short answer to what does “foreign” mean now, it means simply other than Australia. It could be fitted up with some bells and whistles but, boiling it down, that is what it means.

KIRBY J: You have not put any emphasis on the purpose of the section.

MR FINCH: That is because I actually have not started to read it yet, your Honour, as I was responding to some questions before I got to my explanation about what our approach was to it.

KIRBY J: It seems to me that is a strong argument in your favour for the purpose. Allegiance and undivided loyalty to Australia by its elected senators and members.

MR FINCH: Yes. The purpose of the section is self-evident. It does not need any particular digging around to find it and ‑ ‑ ‑

GLEESON CJ: It may come down to this, Mr Finch: it may be self‑evident that the corollary of the proposition that Australia is a sovereign independent nation is that every other nation is foreign, but the central question is, is it not, whether having regard to the terms of the whole of the Constitution, the United Kingdom is an exception to that.

MR FINCH: Yes, and that is why we say Nolan is the case to which your Honours should turn because precisely that question was looked at in the context of determining whether or not a British citizen was an alien. One can test that proposition this way: it would have been a very good answer to the suggestion that the British citizen was an alien to suggest, as was suggested, that that cannot be said of a citizen of Great Britain because Great Britain is not foreign to us. We say that the discussion in Nolan - and his Honour Justice Gummow took it further in different circumstances in Kenny and his Honour Justice Hayne has also addressed the question in Joosse – I am not quite sure how it is pronounced – and I will come very briefly to each of them, your Honours – addressed precisely these questions in terms which we say indicate that the time has arrived when the United Kingdom, for the purposes of the Constitution, is a foreign power and is not excepted from the corollary proposition, if I can take up the Chief Justice’s wording.

Your Honours will recall that Nolan is reported in (1988) 165 CLR 178, and the question arose, as your Honours recall, in connection with the Migration Act 1958, section 12 thereof. That section had changed somewhat over the years. By the time this case arose it said, at the bottom of page 181 it is extracted:

“Where –
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence…..
the Minister may order the deportation of the person.”

Your Honours see it about point 4 of page 182 that it was common ground at the time of the making of the purported deportation order, the plaintiff was a non-citizen, that is, of Australia.

Then over to 183, the submission which gave rise to the relevant discussion is summarised at about point 2:

The primary submission on behalf of the defendants is that the provisions of s.12, being confined in their application to “non‑citizens”, come within the power of the Commonwealth to make laws with respect to “alien”: sub-s. (xix). For the plaintiff, it is submitted that that legislative power cannot validly extend to a person, like himself, who is a subject of the Queen for the reason that such a person is not an “alien” for the purposes of the Constitution regardless of his origins, nationality or citizenship or of the capacity in which the Queen holds his allegiance as a subject.

Then their Honours went on to discuss, we say, in terms which are directly applicable to current circumstances, what “alien” means. Your Honours see:

As a matter of etymology, “alien”, from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person’s lack of relationship with a country, the word means, as a matter of ordinary language, “nothing more than a citizen or subject of a foreign state” –

that is why I said, your Honours, that this is a useful discussion. This is the other side of the coin of what is a foreign state.

GUMMOW J: Another side of the coin is that the foreign state in question as it now exists as regards both its territory and its institutions is not as it existed in 1901. Its territory is not the same because it no longer claims south of Ireland. Its institutions are not the same because its ultimate judicial authority is no longer, in some matters, the House of Lords, the European Court of Justice. Its judicial branch of government, it seems to me, has radically changed.

MR FINCH: Yes. That is, with respect, part of the defect that would be involved in freezing definitions as at 1900.

GUMMOW J: Yes.

MR FINCH: Because there is simply no guarantee, and indeed every likelihood that present day geographical or geopolitical circumstances, legal circumstances, will be completely different, so that the content of the definition would be workably meaningless. Their Honours go on to say then:

Thus, an “alien” has been said to be, for the purposes of United States law, “one born out of the United States, who has not since been naturalized –

et cetera, et cetera.

KIRBY J: I just think there is a little bit of a difficulty, is there not, in looking at the word “alien” in an Act of the Parliament made under a power which refers to aliens for the purpose of that part of the Constitution, and then trying to pluck out words that are said in that context for the quite different context and purpose of section 44(i)?

MR FINCH: We say, with respect, not, for these reasons: it is quite plain from these introductory words that the Court is endeavouring to see what “an alien” means by first characterising an alien, and we say uncontroversial terms, as a subject or citizen of a foreign country.

HAYNE J: “Alien” as used in 51(xix), not in the Act?

MR FINCH: Yes. It is a constitutional definition which has been reached for here. “Alien” in the Constitution means - and in the process of reaching that definition the members of the Court say, “The thing I am considering is, in a sense, an emanation of a foreign power”, “a subject or citizen”, in these words, “of a foreign power”.

KIRBY J: Yes, but that is for the purpose of the meaning of “alien”, which is a grant of power which conventional theory would say has to be given the widest ambit.

MR FINCH: But what we say is “alien” means nothing if it does not include some concept of what is above the alien, the foreign power, or here the foreign state. Their Honours go on, as we say they were compelled to do, logically, to consider what “alien” meant by considering what “foreign state” means. The two things go hand in hand. Before one can say of a given person that they are an alien, one has to know what their allegiance or obligation is owed to. Is it a foreign entity? That is what determines whether they are an alien.

GAUDRON J: There is a bit more to it.

MR FINCH: Amongst other things, and your Honour has identified a number of them in your Honour’s dissent here as well. One of the crucial factors is to determine whether or not the entity to which allegiance is owed – for want of a better word – is a foreign entity. If the entity to which allegiance is owed is not a foreign entity, it is difficult to imagine how the person could be considered an alien. So that the concept of what “foreign state” or “foreign power” or “foreign entity” means, we say, was central to the reasoning in this case. Subtract that from the reading of this case and it does not mean, with respect, anything. Their Honours then go on to say that:

it constitutes an acceptable general definition of the word “alien” when that word is used with respect to an independent country with its own distinct citizenship.

That is a reference back to:

“alien” has been said to be –

at about point 5. Then the most relevant part of their Honours’ discussion is the historical reflections which follow:

The word could not, however, properly have been used in 1900 to identify the status of a British subject vis‑a vis one of the Australian or other colonies of the British Empire for the reason that those colonies were not, at that time, independent nations with a distinct citizenship of their own. At that time, no subject of the British Crown was an alien within any part of the British Empire.

Stopping there, your Honours, no doubt that is what informed the existence in the Constitution at the same time of, for instance, section 34 and section 44. Your Honours recall that section 34(ii) said, in reference to the qualifications of a member - it was a member of the House of Representatives, but I think it is in section 16 it is provided that:

The qualifications of a senator shall be the same –

Section 34(i):

Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

Then section 34(ii):

he must be a subject of the Queen, either natural‑born or for at least five years naturalized under a law of the United Kingdom –

If those framers of the Constitution had thought that the United Kingdom was a foreign power, there would have been considerable tension between that provision and 44(i). It is plain enough that the framers of the Constitution did not think that the United Kingdom as at 1900 was a foreign power.

McHUGH J: But what does it matter what they thought?

MR FINCH: I mention it only as a starting point for looking for the content of the definition. It is said against us in some detail that your Honours ought to stick to what it meant in 1900.

GLEESON CJ: But the meaning of the words “foreign power” has not changed. What you suggest, and the suggestion is controverted, is that the facts relevant to the application of that meaning to the circumstances in the present case have changed.

MR FINCH: Yes.

KIRBY J: But does not that provision in 34(ii), to which you took us, being the qualification member of the House, and the same being the qualifications of a member of the Senate, indicate that, in this context, and for this Constitution, naturalisation of the law of the United Kingdom is not regarded as incompatible with membership of the House of Representatives of the Commonwealth of Australia?

MR FINCH: That was simply a function of, though, whether or not that country was a foreign power at the time, once the content of the definition of “foreign power” changes.

KIRBY J: But you have to read 34(ii) with section 44(i).

MR FINCH: Yes, I accept that, your Honour.

KIRBY J: And the United Kingdom has given a special status there in relation to qualification to be a member. It is just difficult then to say that when you come to 44(i) that ‑ ‑ ‑

MR FINCH: Your Honour recalls this development. Section 34 is a positive statement about qualification. It was enacted until “Parliament otherwise provides”. Parliament has otherwise provided. The reference to the United Kingdom elements of that definition have gone. What Parliament has not done is enacted any exception, because it cannot, to 44(i). Section 44(i) does not apply until Parliament otherwise provides. The negative, the disqualification, remains on foot. There is no longer any tension between 44 and 34. What has happened in the intervening 99 years is that the membership of the team of foreign powers has altered.

KIRBY J: But you say that far from assisting the fact that it was provided that it could be changed by Parliament and has been changed by Parliament, is a recognition of the change of status which the Constitution envisaged could be enacted by our Parliament, and has been enacted. When was that provision relating to the United Kingdom taken out of the Act?

MR FINCH: It did not finally disappear until 1981, interestingly. The short history of it is – I can give your Honours a very brief history. In 1902, the original relevant section was section 95.

KIRBY J: If this is in the submissions, if you just give the reference.

MR FINCH: I am not sure whether I gave the whole of this list to your Honours. I think it is in one of the other sets of submission. But can I say to your Honour this, that the staging points that are relevant are: 1902, section 95 of the Commonwealth Electoral Act. The positive qualification was “must be qualified under the Constitution”. I took your Honours to that earlier today.

The next relevant staging point is 1925 when section 4 of the Act repealed section 69 which had, by then, replaced section 95 and put in wording which is, essentially, the same as 34, that is “subject of the King”. After various renumbering, the next staging point was in 1981 when section 34 of the Statute Law (Miscellaneous Provisions) Act repealed that section 69 and substituted “he must be an Australian citizen”. That very process though, we say, was a recognition of the sort of evolutionary change of which we speak. Not all of these recognitions, of course, fall in step. Some of them are delayed past the time when one might otherwise think they would have occurred. That may be reflected of the sorts of matters to which Justice Gummow referred to earlier.

McHUGH J: Can I tell you one difficulty I have with Nolan, and it is this. The word “subject of the Queen” in sections 34 and 117 created some problems for the argument against Mr Nolan, in that case. Now what could “subject of the Queen” in the Constitution mean, other than, a subject of the Queen? But at 186, in Nolan, the Court seems to come very close to amending the Constitution. It says, the last sentence in the first paragraph of that page:

We would add that, to the extent that there would otherwise be inconsistency in the use of the words “subject of the Q ueen” in the Constitution, it should be resolved by treating those words as referring, in a modern context, to a subject of the Queen in right of Australia.

How can you arrive at that conclusion? If “subject of the Queen” means subject of the Queen in 1900, it must surely mean that now. No question of evolution can change it to mean “subject of the Queen in right of Australia”?

MR FINCH: Yes.

McHUGH J: How can you arrive at that conclusion? If “subject of the Queen” means subject of the Queen in 1900, it must surely mean that now. No question of evolution can change it to mean the subject of the Queen in right of Australia.

MR FINCH: Yes. We say, firstly, that what “the Queen” means in the Constitution can be subject to the process that the Full Court said there, that is, changing times incorporates changing perceptions of what it means and ‑ ‑ ‑

KIRBY J: Is that not what Justice McHugh said in McGinty, that different generations look on the same words and see different things?

MR FINCH: I was going to come to that and I ‑ ‑ ‑

McHUGH J: No, I did not say anything about words in McGinty, I said you read the Constitution, particularly in the way you approach it, the terms of implied rights and matters of that nature. Words are in a different field altogether.

MR FINCH: Yes. Your Honour has seen in the written submissions – no doubt in our submissions and other submissions - we do rely, perhaps as a fall‑back position, on various of the sentiments in McGinty and other cases that your Honour is well familiar with to the effect that it is quite legitimate, though, to come to the meaning of the word “Queen” with 1999 glasses on, and when one does so it is quite legitimate, we say, to interpret it as meaning the Queen in right of Australia. That is precisely what the Court did in Nolan.

KIRBY J: That is what most citizens of Australia would think “the Queen” meant in our Constitution.

MR FINCH: Yes.

GLEESON CJ: By “the Queen in right of Australia”, do you mean the Queen of Australia?

MR FINCH: I only say that because that is the exact phrase that the Court used. When one looks at the various Acts which concern the matter it is “Queen of Australia”. I say that because, as Justice McHugh noted, that is exactly what the Court said. I do not think there is any particular magic in the addition of the words “in right of”. I will not just read out what the rest of Nolan said - your Honours are all well familiar with it – but, most importantly, at 184 we say that this is squarely on the point. There is no reason to distinguish it because the case was in fact about aliens, that is subjects or citizens of foreign powers rather than foreign powers themselves. It says at about point 2:

The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown.

That picks up the phrases that Justice Kirby was talking about earlier. Then their Honours go to mention some of the signposts along the way such as the 1948 Nationality and Citizenship Act - again, I will not read it out – through to the bottom of the page. Then at about the middle of the page:

The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an “alien”.

For the purposes of this case, of course, their Honours’ reference to “another country” was a reference to the United Kingdom. This is picking up the point that the Chief Justice raised with me a moment ago:

It is not that meaning of the word “alien” had altered. That word is and always has been appropriate to describe the status, vis-à-vis a former colony which has emerged as an independent nation with its own citizenship, of a non-citizen who is a British subject by reason of his citizenship of a different sovereign State.

Now, again, their Honours are directly addressing the question of whether Great Britain – the United Kingdom – is a different sovereign state and the reasoning is based four square on the proposition that it is and there is no reason, we say, to differentiate your Honour’s reasoning there to the processes which are relevant here. Their Honours pick up a reference from Chief Justice Gibbs in Pochi, which I will not take your Honours back to, in 1982 where his Honour said:

the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian.
Then the other question which was raised by Justice McHugh was adverted to at the bottom of page 185 which is where that discussion starts, as your Honour recalls - the reference to the indications “in the preamble”, “section 34(ii) and section 117”. I will not read it all out but that is where their Honours’ discussion commences. Their Honours deal with that in the way that his Honour has already indicated. The process, we say, is very nicely, with respect, described this way:

It is unnecessary to pursue that point ‑ ‑ ‑

GUMMOW J: You may get some support from Street v Queensland Bar Association. I do not know if that is on your list.

MR FINCH: Yes, we do get some support from that, your Honour.

GUMMOW J: Sir Gerard Brennan said, 186 CLR 505, that Nolan establish that “subject of the Queen” is the antonym of “alien” in 51(xix).

MR FINCH: That is right, your Honour. We have not got it in our written submissions. I think the Attorney’s submissions have a reference to it but that approach has been the subject of approval in that case. At the bottom of page 185 and top of 186, can I, perhaps, conclude treatment of this case by just reading what we say is, with respect, the appropriate approach to these sorts of changes? The “references”, and that is the references in the preamble, 34(ii) and 117:

cannot alter, or avoid the consequences of, the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship. Those developments necessarily produced different reference points for the application of the word “alien’. Inevitably, the practical designation of the word altered so that, while its abstract meaning remained constant, it encompassed persons who were not citizens of this country even though they might be British subjects or subjects of the Queen by reason of their citizenship of some other nation.

And their Honours must be taken to mean Great Britain by that.

GLEESON CJ: As Justice Gummow pointed out a little while ago, the processes of change are not only occurring at this end. There are processes of devolution and of integration into Europe occurring at the other end. That might have consequences also.

MR FINCH: Yes, your Honour. It is, perhaps, restating what I said before but there is simply no practical benefit to be achieved by freezing at any point in time, let alone 1900, the content of the team named by the words “foreign power”. Those foreign powers might not even exist today. They might exist in such a changed form that they bear no relationship to any useful purpose that is served by the exclusion in 44. One simply does not know. The only way that one can sensibly approach it is to look at it, from time to time, as the occasion arises, and that is the case, whether or not it is done for the purposes of looking at the exclusion for the purposes of the Commonwealth Electoral Act or whether it is done for any other purpose which involves a consideration of whether or not someone is an alien.

McHUGH J: In 1900, do you say that any country that was owed allegiance to Her Majesty, did not owe allegiance to a foreign power? Take Southern Rhodesia or Hong Kong, now, were citizens of those countries, did they owe allegiance to a foreign power?

MR FINCH: Well, that may be covered by their Honours’ reasoning where they say, as a matter of historical record – this is prior to the developments we are talking of, at that time, no subject of the British Crown – that, presumably, means wherever they are – was an alien within any part of the British Empire. One presumes that the notion was that there was an indivisible Crown which eliminated the differences which are now described by the word “alien” between the various member States, if I could put it that way, of that broader congregation of allegiances.

GUMMOW J: That is why the immigration power was so important, for Australia to implement discriminatory legislation against other British subjects.

MR FINCH: Yes, and, I think, that important development occurred in 1948, some considerable time ago.

GUMMOW J: No, it greatly exercised the founding fathers. They wanted to ‑ ‑ ‑

MR FINCH: I am sorry, your Honour is talking about the immigration power of the Constitution.

GUMMOW J: The did not want anyone from Hong Kong coming here.

McHUGH J: Ex parte Walsh v Johnson, I mean, they were Englishmen.

MR FINCH: Yes, I thought your Honour was talking about the Immigration Act, but your Honour is talking about the power in the Constitution.

McHUGH J: They would have attempted to be deported under the immigration power.

GUMMOW J: Not the aliens power, that could not touch them.

MR FINCH: Your Honours, I do not want to weary your Honours by constantly going back to Nolan. Can I move on to – in case it was thought relevant, it is not as though Nolan has been a voice in that wilderness, precisely the same sentiments have been expressed by other members of the Court. I think it is on your list of authorities, Justice Hayne referred to this matter briefly in Joosse & Anor v ASIC. The only reported version of that I have seen is in 159 ALR 260. His Honour, in the course of dealing with a wide range of arguments about potential invalidity of various Acts, had cause to consider, at page 264, from lines 15 onwards, these sorts of questions and although his Honour was necessarily dealing with the matter quite briefly, the section on that page and over the page on 265, we say, is to the same effect as the general sentiments expressed by the Full Court in Nolan. It refers to the same historical developments.

KIRBY J: This construction that is being urged appears to have been adopted in Nolan and Joosse, seems to ensure that the Constitution is able to adapt to new circumstances of the Australian people and is not rigidly stuck in a notion which is perpetuating an indivisibility of the Crown that no longer, in reality, exists.

MR FINCH: And, for practical purposes, in light of this particular case, it actually provides for understandable and workable exclusions, that is, the disqualification means something in terms of today’s geo-political world, rather than what would now be a fiction, which is of no utility at all.

I had already addressed in commencing this topic what was meant by “power”; I will not return to that. I think I have already addressed by what is meant by “foreign”. We simply say, boiled down, it simply means “other than Australia”. One can invent ‑ ‑ ‑

GUMMOW J: Well, Australia is not a member of NATO, which may suggest something for the argument against you.

MR FINCH: Everyone in NATO is foreign. The next question which arises, your Honours – I am leaving the question of whether or not the United Kingdom is a foreign power – we say, on the authority of Sykes v Cleary is the question of whether or not reasonable steps were taken, and again, I will not take your Honours’ time by going through Sykes v Cleary at length, but your Honours recall that the question of what was the content of this exclusion was addressed and the possibly unfair consequences of a foreign power, maliciously or otherwise, simply refusing to give somebody a discharge from their citizenship were discussed, and it was concluded that all one had to demonstrate was that one had taken reasonable steps to divest oneself of one’s citizenship.

CALLINAN J: Mr Finch, there was a reference, I think, by Justice McHugh to Rhodesia. That is discussed by Chief Justice Barwick in China Ocean Shipping Co v South Australia (1978-1979) 145 CLR at 182, and there is a reference to a Rhodesian case there.

MR FINCH: Yes.

CALLINAN J: And the Chief Justice said that the Constitution there was conferred:

(an autonomy quite as large and extensive as that to be derived from the Australian Constitution) –

but yet, any unilateral assertion of independence was illegal.

MR FINCH: Yes. Was his Honour then speaking of the Rhodesian circumstance rather than the Australian?

CALLINAN J: Yes he was, but he did say that the Constitution was no less ample than the Australia Constitution, but look, I do not suggest it is of very much more than historical interest.

MR FINCH: Yes. We would not suggest that that would derogate from our argument in any way.

Your Honours will recall in Sykes v Cleary, apart from the question raised by Mr Cleary’s circumstances, which was the office of profit question, the personal circumstances of two persons were raised for consideration, that of Mr Delacretaz and Mr Kardamitsis, and they were both at all material times Australian citizens – that is, each had dual nationality at all times throughout the entire period of the relevant election – and their personal details varied considerably. Mr Delacretaz – one looks at the summary which starts in the introductory section at page 83 at about point 7. He was born in Switzerland.

He migrated to Australia on 13 June 1951 and has lived in Australia since that date. On 20 April 1960 the second respondent became naturalized as an Australia citizen –

interestingly:

In doing so he renounced all allegiance to any sovereign or State of whom or of which he was a subject or citizen –

That, as Justice Gaudron drew attention to, is no longer part of that process. Since 1986 there has been no formal renunciation involved, either in the act or the actual process of becoming an Australia citizen. One sees the reflection of that at page 32 of the case stated book, where your Honours see the Australian Citizenship pledge, which was taken by the first respondent, and your Honours will see that it is a positive pledge of loyalty, but does not involve the renunciation, which up until 1986 had been involved in such pledges of loyalty.

KIRBY J: In keeping with modern notions of dual citizenship is that people can retain their links, but not in Parliament, you say?

MR FINCH: Yes.

KIRBY J: They do not have that privilege if they go into Parliament. It just has to be the one way.

MR FINCH: That is right, your Honour, and for good reason, we say. The importance of that is perhaps not great because even in Sykes v Cleary
where both Mr Kardamitsis and Mr Delacretaz had renounced when they became citizens, they were both found not to have taken reasonable steps. Justice Gaudron dissented about what were reasonable steps in the circumstances, but the majority found that in Mr Delacretaz’s case nothing connected with that renunciation, although it was relevant, was sufficient to constitute reasonable steps. Perhaps even more importantly, when Mr Kardamitsis was considered, he had not only renounced and become an Australian citizen, he had sworn a pile of oaths of allegiance of various sorts as a Justice of the Peace and the like and none of them taken together with the renunciation was sufficient to constitute the taking of reasonable steps.

Without taking the Court in agonising details through all of that, the conclusions were set out at page 108 very briefly in the judgment of the majority. Justices Brennan and Dawson agreed with the majority, and I do not want to labour the point, but when your Honours look at the circumstances of the first respondent set out in the case stated, they do not put her in any different situation at all than either of the second and third respondents in Sykes v Cleary. If one attempts to create a scale of activity and involvement, it would appear that she falls somewhere between Mr Delacretaz at the lower end of the scale and Mr Kardamitsis, perhaps, at the top of the scale. The first respondent has not, for instance, sworn oaths of the sort that Mr Kardamitsis did on many occasions. Her family and other ties ‑ ‑ ‑

KIRBY J: She did not have the occasion.

MR FINCH: I accept that, your Honour. I am simply enumerating the list of qualifications which might amount to reasonable steps.

KIRBY J: I mean, if we look at it realistically, if you are looking beyond the formalities, somebody who has lived in this country since the age of 11, who had her family here and so on, I mean it is only a constitutional point you have, it is not merits.

MR FINCH: Yes. I am not arguing anything else, your Honour. I am simply placing a first respondent in the scheme of things so far as the authorities have addressed the question of what is a disqualification under section 44(i). Your Honour might well make the same remarks when looking at Mr Delacretaz’s and Mr Kardamitsis’ situation. It could have been suggested, if one is simply dealing with personal merit, that neither of them deserve to be told that they were disqualified from sitting or from being chosen, because they both had – and in Mr Kardamitsis’ case, had significant attachments to the local community and had contributed in his case an enormous amount to the local community, and had personal ties in the way of a naturalised spouse, children born in the jurisdiction.

KIRBY J: What do you say the first respondent had to do as reasonably to divest herself of her United Kingdom citizenship.

MR FINCH: She had to do the same thing that Mr Delacretaz had to do. She had to write to the British authorities and renounce, and it is a matter of formality. In Mr Kardamitsis’ case the onus was even slightly higher. It was not necessarily the case that his discharge from citizenship would occur simply on writing a letter, because it was subject to the approval of the Greek authorities. But even then, it was said that not writing a letter to that effect or making that application meant that he had not taken reasonable steps. That is the conclusion which is reached at page 108 about both of those persons.

KIRBY J: Do we have any idea of how many British subjects born in, say, the United Kingdom who live in Australia who vote in our elections and who are disqualified from being members of our Parliament by this principle?

MR FINCH: The answer is, I do not know, your Honour.

KIRBY J: It would be, one would think, hundreds of thousands.

MR FINCH: Yes. That would not be a ground, though, for reading the disqualification in terms other than its terms.

KIRBY J: The privilege of voting has been cut off at a certain date, has it not?

MR FINCH: The privilege of voting is not connected directly with the privilege of being chosen as a Member of the House or as a Senator.

KIRBY J: I think that present citizens of the United Kingdom do not have a right to vote.

MR FINCH: There was a cut-off date, your Honour.

KIRBY J: That was cut off in 1984, I think.

MR FINCH: I think it may have been 1 May 1987, your Honour. I may be wrong about that, but it was certainly subject to a cut-off.

GAUDRON J: I think it had happened by the time of Nolan.

MR FINCH: It had happened, yes.

KIRBY J: You hear that Australians are members of the United Kingdom Parliament. Do you know about that?

MR FINCH: I do not know about that, your Honour, no.

KIRBY J: There are a couple of Ministers, I think, who are Australian citizens.

McHUGH J: Patricia Hewitt is certainly Australian born.

KIRBY J: They do not have a written Constitution.

MR FINCH: Unless your Honours had wanted me to, I would not seek to take your Honours’ time by addressing on my feet the remainder of the questions. There appears to be very little controversy at the Bar table about what answers ought be given to them, depending on what ‑ ‑ ‑

GLEESON CJ: Yes, and the Electoral Commissioner is here to assist us on the technicalities relating to the consequences of any decision ‑ ‑ ‑

MR FINCH: Yes.

KIRBY J: Could I just ask a question: I know that there is a degree of unanimity, in fact I did not see any disunanimity, but it would seem to me that the position of a House seat is different from a Senate seat in principle, in that in a Senate seat now, as is recognised by the 1977 amendments and is recognised in practice by the mode of the Senate-voting people in very large numbers simply vote for a party. It would seem at least relevant to a discretionary decision as to what order should be made that if there were any risk that a person who has been elected in the interest of a party might be held disqualified, that that party for whom very large numbers of electors of Queensland have voted would not be assured of having its next candidate elected. I realise this is in a sense a point Mr Ellicott should take, if anybody, but would that not be a relevant consideration? You said in answer to me earlier at the very beginning of today that by reason of the distribution of Mrs Hills’ preferences, the likelihood would be that a member of her party would be elected but, if there were any doubt, I must say that would be a matter of relevance to me, because that would defeat the purpose of the electors of Queensland, and that is something I would not willingly lend my decision to.

MR FINCH: The short answer to the question is: it is the position, as we understand it, of the Australian Electoral Commission that by reason of the numbers of people who voted below the line – that is, not in accordance with the group voting system – that it is not presently possible to say without a recount what would be the result of a declared invalidity in the election of the first respondent. It appears from the figures that the likelihood is that treating the first respondent’s candidature as a nullity, that the second in line of her party’s candidates would in fact be then elected, but that is simply on a best guess without any certainty on the relative numbers of people who voted above the line and below the line.

KIRBY J: If that were relevant to the order that was made – that is to say, either that one disqualified the first respondent or did not disqualify her or made some order in relation to the recounting of votes or ordered that there be a complete re‑election for the senators of Queensland, how would we know that until the recounting?

MR FINCH: The first point is that it can and should have absolutely no influence on whether a decision is to disqualify or not.

GAUDRON J: The decision is not to disqualify in the sense that that might enforce some discretion. The question is: was she duly elected? That is not a matter about which there is in any relevant sense a discretion.

MR FINCH: The result of her not being duly elected in terms of political results is completely irrelevant to the question of whether or not she was duly elected. What one does as a consequence of finding that the first respondent was not duly elected is a matter which has been said to be the subject of incidental power in this Court to make directions.

McHUGH J: But under subsection (2) does not the Court have a discretion as to whether or not it declares whether or not a person has been duly elected? Subsection (2) says:

The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

MR FINCH: Yes. It is part of our submission, as your Honour knows, that the Court is obliged to, and has always in the past, acted judicially according to the requirements of the statute and, in so far as they may apply, the requirements of the common law of elections. It has a discretion. What we are suggesting, though, is it should be no part of that discretion to say “all other requirements of disqualification being met, we are not going to declare that she is not duly elected because of the trouble that would cause in the electorate”.

KIRBY J: Even though that would lead to, effectively, the disqualification not just of the first respondent, but the disenfranchisement of the electors of Queensland?

MR FINCH: It that were thought to be a realistic possibility, then that is the sort of matter which should be addressed when talking to the Court of what direction should be made following such a declaration.

GLEESON CJ: I am not sure that the stated case refers any discretionary question to this Court except the question of the costs of the stated case.

MR FINCH: Your Honour recalls the stated case goes on to ask ‑ ‑ ‑

GLEESON CJ: Was the election void?

MR FINCH: Yes.

GLEESON CJ: And should the respondent conduct a recount?

MR FINCH: Yes.

GLEESON CJ: Full stop.

MR FINCH: Now, if it were borne in upon your Honours that there was some reason that no recount should be conducted because that would have some unfortunate effect, then the matter would be ‑ ‑ ‑

HAYNE J: What, unfortunate political effect? Is that what you are saying?

MR FINCH: That is what I am saying, yes.

HAYNE J: Yes. A remarkable submission in this Court.

MR FINCH: The first thing I would say, as I have said earlier, is we say that is not an available submission.

GAUDRON J: And if it were, you would have to worry about whether or not it was judicial power that had been conferred.

MR FINCH: Yes. We simply say that that consequence is simply not part of the discretionary range of considerations for the Court. It is simply not.

HAYNE J: Indeed, the last time such a submission was made, I think there was some fear expressed for the life of counsel who made it, given the reaction from at least some members of the Bench.

MR FINCH: I think I have been strenuously resisting it so far, your Honour.

HAYNE J: Yes.

MR FINCH: So that our answer is simply that it is not part of the discretionary armoury of the Court to consider that sort of matter when considering these sorts of orders. The discretion that exists is one which is exercised judicially, dependent upon what the statute says are the considerations to be addressed and, if they be relevant, what are the relevant tenets of the common law of elections which may apply.

KIRBY J: But there can be nothing more fundamental, can there, to a democratic polity and the election of a democratic legislature than that it should reflect the will of the people?

MR FINCH: That is not about qualification, your Honour. That is a different and political question, not a question of the legal boundaries of qualification and whether those boundaries have been met by the candidate.

KIRBY J: As Chief Justice Dixon said, everything about the Constitution is political in one sense.

MR FINCH: Yes. That remark, we would say, still would not involve the Court in exercising its discretion on other than strictly judicial grounds based upon the statute and whatever common law is available.

KIRBY J: Even though it would result in a return of a senator who was of a different political complexion to the party of the senator who is disqualified on this constitutional point?

MR FINCH: If so, that is the result of the combination of the Constitution and the Commonwealth Electoral Act which provide the only framework for a proper election.

KIRBY J: What happened to this Senator Wood? He was an independent senator, was he not, so there was not a party ‑ ‑ ‑

MR FINCH: That was a reference case and there was a recount, and I think he was actually affiliated with the Nuclear Disarmament Party.

McHUGH J: Yes, and Senator Irina Dunn took his place, did he not, if I remember rightly?

MR FINCH: Yes. Now, your Honours, unless there was anything further, I had intended to sit down and otherwise adopt, with respect, the written submissions of my learned friend Mr Bennett.

GLEESON CJ: Thank you, Mr Finch. Mr Swan, you I think confine your submissions to the matters that have not been addressed by Mr Finch?

MR SWAN: Questions (d), (e) and (f), your Honour, yes. But the Solicitor-General and I have agreed that he should precede me, if that pleases the Court.

GLEESON CJ: Very well. Yes, Mr Solicitor.

MR BENNETT: May it please the Court, it is convenient to start with the last question while that is fresh in your Honours’ minds, and that is of course the issue concerning the United Kingdom. May I start by putting what has been described as a denotation/connotation argument in a slightly different way, and that is this, that when one construes any statute, including the Constitution, and when one looks for parliamentary intent or its equivalent, whatever that is in the case of the Constitution, one is looking at that intent for the purpose of seeing the meaning of the document and the meaning of the words used in the document and the meaning of the sections in the document.

One is not looking at “parliamentary”, or “founding father” intent, for the purpose of saying, how would they, if they were a court, have decided the case on the facts before us? That is not part of the process of interpretation. One simply does not ask, “What would either Parliament or, in this case, the founding fathers, have said about this problem?” What one says is, “What do the words of the Constitution mean?” Having got a definition, if necessary, by reference to whatever intention may be relevant, one then says, “How does that apply to the current situation?”

McHUGH J: I do not disagree with what you have just submitted but you have left out a very important, perhaps, qualification. At what point of time do you ask that question? As the words would be understood on 1 January 1901 or as they would be understood if the Constitution was passed yesterday?

MR BENNETT: Your Honour, whichever of the two views one takes, one does not ask ‑ ‑ ‑

McHUGH J: Well, it is a fairly important distinction as far as I am concerned.

MR BENNETT: Your Honour, it is a very important distinction and it is a distinction on which people have taken different views, as your Honour knows, and on which the United States Supreme Court, of course, has been bitterly divided for a long time. But my submission is, in a sense, in a different realm of discourse to that question, because whichever view one takes of that, one does not even ask what the intention was in relation to the application of the law to the facts, or in relation to the application of what one says it means, to the facts. Let me give your Honours an example which, although it did not find a reflection in the judgments of this Court except, perhaps, by implication, is a very clear illustration of what I mean.

The Scientology Case involved the issue of whether the words “religious institution” in the Victorian Payroll Tax Act of, I think, 1968, did or did not include the Church of Scientology. That involved construing the words “religious institution” and then asking if that church fell within it. One of the arguments raised by the Commissioner for Payroll Tax, and not even referred to by the Court in its judgment because it was, we would say, dismissed with such division, was that in the same year as the payroll tax was passed, the Victorian Government also passed an Act banning the practice or the propagation of scientology, an Act subsequently repealed a few years later.

The argument was, well, how could Parliament possibly have intended to include scientology religious institution when it expressed its views about that group so clearly in another Act passed within some months of that Act? That was a totally irrelevant argument and one, as I say, which this Court did not even deal with. Although, it, of course, might have affected the result if it had been a valid argument. The reason is that it is quite irrelevant how the Victorian Parliament might have thought that case should be decided. What was relevant was, what was the connotation of what it meant by “religious institution”?

Now, here, the issue is, what is meant by “foreign power”? Not, did someone intend that, or did the words of the Constitution convey the message that it should or should not include a country then known as the United Kingdom which had certain boundaries and certain characteristics then. That is simply not the question and it does not matter how clearly the rest of the Constitution demonstrates, if it be so, that the founding fathers thought that the United Kingdom was not a foreign power. Of course, there is no doubt they thought that, absolutely no doubt.

GLEESON CJ: But they were right, were they not?

MR BENNETT: Yes, they were.

GLEESON CJ: The United Kingdom was not a foreign power in 1901.

MR BENNETT: Precisely, your Honour.

GLEESON CJ: And, presumably, at that time in our history when our Prime Minister said, “Great Britain is at war and in consequence Australia also is at war”, it still was not a foreign power.

MR BENNETT: Then when we became a party to the Treaty of Versailles the process started moving in the other direction and ‑ ‑ ‑

KIRBY J: I think the Chief Justice’s reference is to 1939. That was what Prime Minister Menzies said in 1939.

MR BENNETT: I am sorry, yes.

GUMMOW J: There was no declaration in 1914, no separate declaration of Australia.

MR BENNETT: Yes.

CALLINAN J: When we approached the United Kingdom in 1986 it is hardly likely that we would have regarded it as a foreign power.

MR BENNETT: On the contrary, your Honour. In order to obtain confirmation that it was and to remove any argument that ‑ ‑ ‑

CALLINAN J: But, on your argument, we do not need confirmation. It is all there, it has all evolved, it has happened. Who is arguing about it?

MR BENNETT: Your Honour, legislatures and others do things for more abundant caution when there is no need to do so all the time.

McHUGH J: There are a number of constitutional questions enacted in that legislation which - if it came before me without it, you could do things under that legislation that you would not get very far with without it, at least as far as I am concerned.

MR BENNETT: Your Honour means the Australia Act?

McHUGH J: Yes.

MR BENNETT: Your Honour is referring to the Australian Australia Act or the UK Australia Act, because ‑ ‑ ‑

KIRBY J: The people were not involved in that.

MR BENNETT: There may be a real question whether the UK Act was necessary or not but, whether or not it was necessary, we put the argument in the alternative and the famous statement was not about fat people. There was a statement in an English case, I think, where one of the Law Lords said, “I do not know when day ends and night begins but I know that midnight is night and midday is day”.

McHUGH J: That was Lord Simonds.

MR BENNETT: Yes, I am indebted to your Honour. That is the issue here. One cannot identify the date but there is no doubt there has been a process and there is no doubt that process has now concluded.

GUMMOW J: How does section 59 of the Constitution now operate, for example? Upon whose advice, if any, may the power to disallow be exercised? I think you would say on the advice on the Australian Ministers?

MR BENNETT: Yes, your Honour.

GUMMOW J: So that if there is a change of government, the new government can, in effect, get rid of the laws of its predecessor within that period by advice under 59.

MR BENNETT: No, your Honour. We get there in a slightly different way. We would submit that when the Constitution refers to the monarch – and this applies to the question asked by Justice McHugh earlier about sections 117 and I think 34 - the connotation of the reference to “the Queen” in the Constitution, in the same way, I suppose, as the denotation includes “the King”, the connotation is ‑ ‑ ‑

GUMMOW J: It is picked up expressly under section 2.

MR BENNETT: Yes, the Queen in her capacity as part of the legislature of Australia. Now, it may be that at the time that capacity merged with other capacities. It may be that there is some ‑ ‑ ‑

GUMMOW J: There is no doubt that in 1901 that meant on advice of British Ministers.

MR BENNETT: Yes, that is so, your Honour.

GUMMOW J: At some stage that changed. Does it now have any life at all, section 59, or a different life?

MR BENNETT: It has a different life, your Honour. It also, of course, is subject to a convention, too, but the ‑ ‑ ‑

GUMMOW J: Conventions can be broken in this country. We have been told from to time that they have been.

MR BENNETT: They can, your Honour, yes. The issue about the justiciability of that is something which is controversial too. The answer to section 59 is this, your Honour, that the words “the Queen” there, the connotation is the Queen in her capacity as one of the three branches of the legislature of Australia, that being a common capacity at the time, a capacity later severed, and thus with the severing of the capacity the denotation of the reference changed and ‑ ‑ ‑

GUMMOW J: It is a practical question. To whom does the sovereign look for advice?

MR BENNETT: The Australian advisers. There is no question of that.

GUMMOW J: How did that change come about?

GAUDRON J: Or did it change?

GUMMOW J: Or did it change?

MR BENNETT: Your Honour, it came about ‑ ‑ ‑

GUMMOW J: Or has it never included British Ministers?

MR BENNETT: A series of steps which would take me a little time to go through, there is the Statute of Westminster, there is the Royal Style and Titles legislation, which I would have to get in Australia, which I think was in the late 40s – I may be wrong about that – 50s - and then ultimately the Australia Acts.

KIRBY J: That was amended again.

GAUDRON J: The Australia Acts deal with the persons whose
advice the Queen acts on in relation to State constitutional links. It does not deal with any question of the advice she acts on with respect to matters covered under section 59. I have an impression, which may be wrong, that she always acted on the advice of Australian Ministers in relation to Commonwealth matters.

CALLINAN J: Section 64 might suggest that, might it not?

KIRBY J: But Justice Gummow is right to point out that sections 59 and 60, as at 1901 would have been on the advice of British Ministers, but it would be completely intolerable today to read those sections as so meaning. We look at the Queen in them, as referring to the Queen of Australia.

MR BENNETT: My only hesitation in answering the question is identifying which of the various steps was the one where that bit got changed. That is the only reason for my hesitation in answering. I can check that easily overnight.

KIRBY J: I think the Court faced this – I realise that it is not exactly the same – but when it talked to the indivisibility of the Crown in cases in the 1930s and the 1940s. You cannot put your finger on the point but, with respect, it does not seem to me that that matters so long as it has happened by now.

MR BENNETT: That is our submission, your Honour.

CALLINAN J: Mr Bennett, what is the role of the Queen’s Ministers of State for the Commonwealth as referred to in section 64 of the Constitution? Why would they not be advising the Queen? Why would they not be the Queen’s executive advisers to the Commonwealth?

MR BENNETT: They certainly would today, your Honour.

CALLINAN J: Why not at the time of Federation?

MR BENNETT: I am not sure that would have applied to section 59 when the purpose of section 59 at the time was to retain some measure of control in London.

GUMMOW J: The concluding sentences of section 74 bring in section 60, do they not? Mr Ellicott may know the answer to this, but the limitation of appeals to the Privy Council in 1968, for example, that was reserved, had to be under 74.

KIRBY J: I think the Royal Style and Titles Act, in the deletion of Her Majesty’s title as Defender of the Faith was reserved, and Her Majesty signified her consent. That would be a matter of proper deference to the position of the sovereign. But I think apart from those sorts of provisions no such matters are now reserved.

MR BENNETT: It is a question I can certainly answer accurately in the morning when it may be simpler to deal with the point.

GUMMOW J: There is also the Privy Council Limitation of Appeals Act 1975, I think. That was the second round of Privy Council limitations. Both of them would have been reserved as of necessity under 74, and I am not sure whether the advice was tendered at those times by Australian Ministers. Though, clearly enough, section 74 had that concluding provision in it to persist Imperial interests as understood in 1900.

McHUGH J: I have some difficulty with this argument of yours that the “Queen” in the Constitution means the Queen in her capacity as one of the branches of Australian government.

MR BENNETT: Yes.

McHUGH J: That cannot be the meaning in covering clause 5, can it, where it talks of:

British ships, the Queen’s ships of war excepted –

MR BENNETT: Yes. There may be a difference, your Honour, in relation to construction of the covering clauses and construction of the Constitution itself.

McHUGH J: If you look at the schedule and the oath, it is to the heirs and successors of Queen Victoria.

MR BENNETT: Yes.

KIRBY J: But as Justice Gummow has pointed out in earlier cases, it is “of the United Kingdom of Great Britain and Ireland” and that does not exist now, so that it has to be read in a slightly different way.

MR BENNETT: No, your Honour; all that says, if one goes to the schedule, your Honour sees there is a footnote to the schedule and I will leave aside for the moment the question of footnotes being part of Acts; it may well be that this is a case where it is not. But, leaving that aside for the moment – I do not think anyone has ever looked at that question – all the footnote is doing is assuming that the person, who happens to be “King or Queen of the United Kingdom of Great Britain and Ireland for the time being” will be the person who fits the connotation that I have described.

GUMMOW J: There is no such person, and there has not been such a person since the time of King George V.

MR BENNETT: That is so, your Honour, which is another, I suppose, aspect of the denotation of the words.

McHUGH J: But if your argument is right, I do not see why tomorrow the States and the Commonwealth could not get together and pass an Act under the nationhood power and say, “The Queen of Australia is now Beryl Brown of such and such a place”.

MR BENNETT: Well, they could, your Honour.

McHUGH J: They could.

MR BENNETT: I am sorry, perhaps I answered that a little too quickly. There are some questions in relation to that, one of which is whether it is implicit in, or part of, the Constitution, that the person who has the office of Queen of Australia, also be the person who happens to be the person who has the office of Queen of the United Kingdom, and the question of how, if at all, that can be changed. The only issue as to how it can be changed is whether it involves an amendment, going through the section 128 procedure, or whether it can be done by the legislatures. That is the only issue. It would not require English approval.

McHUGH J: No, but a notion seems to have grown up that if the States and the Commonwealth get together, they can do what they like with this Constitution.

MR BENNETT: No, they cannot, your Honour, they cannot amend it.

McHUGH J: Of course they cannot. It is the people’s Constitution, and it can only be amended through section 128.

MR BENNETT: That is so, your Honour, but what I have described as denotation and connotation and where it may, in this case, more accurately be described as a process of interpretation only looking to intent, if at all, for the purpose of defining the meaning of the Constitution as opposed to defining its application.

McHUGH J: Well, I have no problem with that, Mr Bennett. I can think of hundreds of examples about how words in the Constitution now cover events and transactions which were never thought of in 1900 and, indeed, may have even been contrary to what the framers of the Constitution, either intended or expected or hoped, but you still have to define the meaning of various terms. I know “connotation”, “denotation”, is often used in the jurisprudence in this Court; I prefer Dworkins “Concepts and Conceptions”, but you have to determine, as far as I am concerned, what did the word “foreign power” mean in 1900, at an abstract level.

MR BENNETT: Yes.

McHUGH J: And the same with “Queen”. Now it seems to me, when the Constitution talks about “Queen”, I find it very difficult to think that in 1900 it meant Queen of Australia. That is a gloss that is now put on it.

MR BENNETT: Well we view it slightly differently, your Honour. We do not say it meant Queen of Australia. We say what it meant was the Queen, in whatever capacity it was, which was relevant to her being part of the Australia legislature.

McHUGH J: Well, I know you say it and it fits the argument, but it is with all the benefit of hindsight. I doubt if that would have occurred to any person in 1901 that that was the meaning of the Constitution.

MR BENNETT: Well, your Honour, if you had ‑ ‑ ‑

KIRBY J: It occurred to an awful lot of people, if you asked them today with the glasses of 1999.

MR BENNETT: It is question of what degree of generality one attributes. They certainly intended that, but the question is at what level of generality they intended it. They might not have articulated it in that way.

McHUGH J: Justice Kirby and I have a philosophical dispute about this. Justice Kirby seems to me to take the view you can interpret the Constitution as if it was passed yesterday.

KIRBY J: No, no, I followed McGinty and Justice McHugh’s statements in McGinty faithfully.

MR BENNETT: Well, your Honour, all I can do is repeat that the argument I am putting lives happily with either result in relation to the disagreement your Honour refers to.

GLEESON CJ: Subject to the important qualification concerning the possible special meaning that the expression might have in relation to the United Kingdom, which can be put to one side for the moment, the words “foreign power” are ordinary English words, are they not?

MR BENNETT: Yes, your Honour.

GLEESON CJ: Their meaning has never changed.

MR BENNETT: That is so, your Honour.

GLEESON CJ: Section 41 of the Constitution uses the words “adult person”. What does the expression “adult person” today mean in section 41?

MR BENNETT: Your Honour, it means a person over 18 today.

GLEESON CJ: What did it mean in 1901?

MR BENNETT: A person over 21.

GLEESON CJ: How did the change come about?

MR BENNETT: By legislation.

McHUGH J: But it does not now. King v Jones holds it still means a person over 21, does it not?

KIRBY J: It may need to be re-examined with today’s spectacles.

McHUGH J: What do we have to do, overrule King v Jones. That is what it held, that an adult means a person over 21 because that is what it meant back in 1901.

KIRBY J: Some people say it ought to be younger today.

McHUGH J: This is the point that throws up the real distinction. I mean, if you were to ask who is an adult person today, I would not have the slightest doubt that it means a person at least over the age of 18, maybe even younger, as Justice Kirby suggests. But if you ask what does it mean in the Constitution, it is a different answer.

MR BENNETT: Yes. Your Honour, “adult person” is not as strong an example as “foreign power”, because what is an adult person may depend to a greater extent on legislation and a lesser extent on what people believe or think about the adulthood. It may be a more difficult case, adult person, but ‑ ‑ ‑

GLEESON CJ: Let us take a practical example. It may be that there is no situation better calculated to throw up the question whether another nation is a foreign power than war. Mention was earlier made of the fact that at the outbreak of the Second World War, it was the view of the Prime Minister of the time that Britain’s entry into the war automatically brought us in too.

MR BENNETT: Yes.

GLEESON CJ: Could that be suggested today?

MR BENNETT: No.

GLEESON CJ: And, if not, why not.

MR BENNETT: There may also be a question as to the extent to which the statement by Mr Menzies was a legal, as opposed to a political, statement.

CALLINAN J: Ships were on a wartime footing the next day. It seems to me to have been ‑ ‑ ‑

MR BENNETT: Yes, there may be a question, though, as to whether his view of the law was correct, even in 1940, but your Honours do not need to go into that. The short point is there is nothing less relevant to whether or not the United Kingdom is a foreign power today than to ask whether it was or whether the founding fathers thought it was in 1900, and that really is the whole of the argument. It can be put as shortly and simply as that. The mere fact that other references in the Constitution may be predicated on it not being a foreign power is not because the words “foreign power” were being used in a way that necessarily has the consequence that Great Britain can never be excluded, but because at the time that was, for a number of very good reasons, the assumption being made, and that assumption was reflected in a number of places. But one does not even look at that to ask what is the meaning of the words because the meaning of the words has nothing to do with whether Great Britain was a foreign power at the time.

HAYNE J: Does the argument come to this, Mr Solicitor, that the criterion of reference that you put forward, the criterion of distinction that you put forward for foreign power, is that it is a country subject to sovereign power separate from the sovereign power operative or existing in Australia?

MR BENNETT: Yes, your Honour, even if ‑ ‑ ‑

HAYNE J: And that that criterion of reference has applied from 1901 forward, though it may have different practical application?

MR BENNETT: Yes, your Honour, that is exactly what I am putting. I add the comment, I suppose, even if one of the branches of legislature happens to be the same person in different rights.

McHUGH J: But, without pinning myself to the exact details of what Justice Hayne put to you, I have no problem with that as a general description but it is these frequent references throughout the Constitution to the United Kingdom. Could I give you an illustration of the United States jurisprudence. It prohibits cruel and unusual punishments and, as you are aware, there is a great debate as to whether or not the death penalty is a cruel and unusual punishment. People like Justice Scalia say the Constitution recognises that you can put people to death, therefore it cannot be a cruel and unusual punishment. The others, such as Justice Brennan, Justice Marshall, Justice Douglas would say, “no, it does not matter that the Constitution seems to assume that it is not”. Cruel and unusual punishment has to be given a meaning in the 1980s, 1990s, and they would say it is a cruel and unusual punishment. But in this context I am with Justice Scalia.

MR BENNETT: Your Honour, may I deal with that directly, because that is probably the best example one can think of to test the distinction I am trying to draw. There is a controversy between Justice Scalia, on the one hand, and Justice Brennan on the other, and other judges in various positions, as to whether one looks to original intent or one looks to the words through more modern eyes. That is a central difference of approach and ‑ ‑ ‑

McHUGH J: No, I think Justice Scalia would deny that he is an originalist. He goes to the semantic meaning, not the intended meaning of the framers.

MR BENNETT: I still accept that, your Honour, as the distinction. But the question of whether the meaning of cruel and unusual punishment is affected by the reference in other parts of the Constitution to no person being deprived of life or liberty, et cetera, is more on the lines of what we are talking about here.

It would be perfectly consistent with the approach of Justice Scalia with his broad approach, not his narrow approach, for him to say, “Although I look to what the founding fathers meant by a cruel and unusual punishment, I look at the criteria of what they meant by cruel, and what they meant by unusual. But whether a particular punishment, namely, the death penalty, falls within that definition is not something I look to them for. That is something which I have to look to something different to define. But what I look to their minds for is not whether the death penalty is included, but what is the meaning of the words, and I get a meaning for the word “cruel”, I get a meaning for the word “unusual”, I get a meaning, perhaps, from the hendiadys, if you read it together. But what I do not do is say, and this particular form of punishment, whether it be a corporal punishment or a capital punishment or anything else, their views on that would be irrelevant”. And, indeed, the construction of the Constitution as a whole on that would be irrelevant. It would be irrelevant, on my submission, to look at the reference to no person being deprived of life or liberty in order to construe what cruel and unusual punishment meant, because all that shows is that a particular form of punishment was not regarded as cruel and unusual punishment at the time, which is not ‑ ‑ ‑

GLEESON CJ: But one of the arguments you have to address is that, although if section 44 stood alone in its application to the changing facts and circumstances it might now be concluded that the United Kingdom is a foreign power, the facts and circumstances in 1901 concerning the relationship between the United Kingdom and Australia were such, and the assumption made by the founding fathers were so obviously right that there is now reflected in a variety of places in the Constitution an approach taken by the Constitution to the relationship between Australia and the United Kingdom that denies the first conclusion.

MR BENNETT: Well, your Honour, the short answer to that is that whatever else one finds in all the sections that are referred to of the Constitution about the relationship, whatever else one finds and what appeals to the Privy Council about the Acts reserved for the Queen’s pleasure, about all sorts of little bits and pieces that one can – even section 117 of “A subject of the Queen” – all those bits and pieces one can point to have nothing to do with the meaning of the words “foreign power” in section 44.

HAYNE J: But 34(ii) has the most direct reference. Section 44(i) must be read as capable of operating in conjunction with 34(ii) and the equivalent provision in relation to the Senate, must it not, and 34(ii) in its reference to “subject of the Queen” must be given due weight in coming to understand what is meant in 44(i)?

MR BENNETT: No, your Honour, because there is not a relationship of exclusion between 34(ii) and 44(i). For example, a person who had been naturalised for less than five years would fall, neither within 34(ii), nor 44(i).

KIRBY J: But is there not also the answer that was given earlier, and that is that the genius of the Constitution acknowledged that there would be changes in this regard, and could be, by the opening words “until the Parliament otherwise provides”, and the Parliament as otherwise provided.

MR BENNETT: Yes, that is the second argument which I put.

McHUGH J: Yes, but the problem – I am sorry, it is not a problem, but all the things you have to face up to is that, give the words in 44 an ambulatory meaning, progressive meaning, nevertheless, other provisions of the Constitution indicate, in effect, that it has to be read, notwithstanding the width of section 44(i), this paragraph does not apply to the United Kingdom.

MR BENNETT: None of the other provisions suggest that. There is nothing ‑ ‑ ‑

McHUGH J: Let it be assumed that all these changes had been made but the Parliament had not otherwise provided with in terms of section 34, how would your argument go then?

MR BENNETT: Your Honour, the changes your Honour describes could not have taken place in the form they have taken place if Parliament had not otherwise provided under section 34. It would be an inconceivable situation.

McHUGH J: Well, use your imagination, which is not lacking on occasions, and assume that Parliament had not otherwise provided.

MR BENNETT: Well, your Honour, then we would not be here for another reason. Then the decision in Nolan might not have been made in the same form ‑ ‑ ‑

McHUGH J: That is right.

MR BENNETT: - - - and there might be real questions about whether the steps which have been described as bringing us to total independence, had occurred, because one very basic one would not have occurred, indeed, one of the most basic, but it has and, in a sense ‑ ‑ ‑

HAYNE J: What is the step, you say, is one of the most basic steps? What is the step you identify as that?

MR BENNETT: The “otherwise providing” under section 34, your Honour, because if one did not have that ‑ ‑ ‑

KIRBY J: The argument against that is that when you actually look at the constitutional text, it is, as Justice Hayne has pointed out, 44(i) and 34(ii). That is the constitutional text, and although Parliament is given a power to change it, when you are looking to what the actual Constitution meant, you have to somehow reconcile those two.

MR BENNETT: But, your Honour, I can equally say the fact that the test is not diametric, is not exactly the opposite, the fact that the words under section 44(i) are not the exact opposite words of the words under 34(ii), are relevant. They are relevant in two ways. First, a person could fall within both. A person who has dual citizenship falls under 34(ii) and 44(i) and secondly, a person who has been naturalised within five years falls within neither, is neither a citizen of a foreign power nor under 34(ii) so the two simply are not provisions which are read together as part of an overall scheme. They are laying down different criteria for different purposes.

KIRBY J: Have you looked at the British North America Act? Is there any lesson from the way they moved in Canada to deal with these issues, both the jurisdiction of the Court of Disputed Returns and this issue of qualification for membership of the Parliament?

MR BENNETT: We have not looked at it for the second purpose. We have for the first purpose.

KIRBY J: Perhaps, if you would not mind, just having a look at that overnight.

MR BENNETT: I will have a look at those overnight.

GLEESON CJ: Do you say that somebody who is qualified under section 34 may still be disqualified under section 44?

MR BENNETT: And vice versa, your Honour.

GLEESON CJ: Yes, for example, 44(iii).

MR BENNETT: Yes, but even dealing only with 34(ii) and 44(i), even dealing with those two alone, there are four possibilities. You can be within one, the other, both or neither.

HAYNE J: But is that a submission that 34(ii) and 44(i) are to be read together because at the time of the Constitution dual citizenship could be contemplated.

MR BENNETT: We do not read them together, your Honour. We say they are dealing with two different subject matters. They are certainly related subject matters obviously but it is dealing with them in different ways and laying different criteria and one would not read down the words “foreign power” in 44(i) because of the provisions of 34(ii) which merely indicate nothing more than that until the Parliament otherwise provides, the assumption on which things are being done is going to continue. I see, your Honours, it is ‑ ‑ ‑

GLEESON CJ: Is that a convenient time?

MR BENNETT: Yes, your Honour.

GLEESON CJ: Then we will adjourn until 10.15 in the morning.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 MAY 1999

[1999] HCATrans 116

Key Legal Topics

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Constitutional Law

Administrative Law

Legal Concepts

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Standing

Procedural Fairness

Natural Justice

Proportionality