Sue v Hill & Anor - Sharples v Hill & Anor

[1999] HCATrans 187

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

For Judgment

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

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 1999, AT 2.20 PM

Copyright in the High Court of Australia

_____________________

(Reasons for judgment were delivered)

GLEESON CJ:   In these two cases, which were commenced in the Court of Disputed Returns, the election of Mrs Hill as a senator for the State of Queensland was challenged on the ground that, at the date of her nomination, she was incapable of being chosen as a senator. The specific ground of disqualification alleged was related to s44(i) of the Constitution, and was that, at the date of nomination, Mrs Hill was a subject or citizen of a foreign power, namely, the United Kingdom.

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court.

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners, that is to say, jurisdiction, under Division 1 of Part XXII of the Commonwealth Electoral Act 1918, to consider a challenge to an election based solely on the ground of disqualification under s44 of the Constitution. Four members of the Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) have answered that question in the affirmative, holding that there is jurisdiction. Three members of the Court (McHugh, Kirby and Callinan JJ) have answered the question in the negative, holding that jurisdiction does not exist.

The three members of the Court who held that there was no jurisdiction of the kind invoked did not, for that reason, go on to answer the remaining questions.

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows:

a. The United Kingdom is a foreign power within the meaning of s44 of the Constitution;

b.  at the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a senator;

c.  Mrs Hill was therefore not duly elected;

d.  the consequence is not that the entire election of senators for Queensland was void absolutely.

Those four members of the Court were of the opinion that there should be a recount.

As to the manner and extent of such recount, these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard.  Accordingly each case has been remitted to the Court of Disputed Returns.  In the case of Sue v Hill the Court will sit at 9.30 am tomorrow for the purpose of considering the future course of the proceedings and, if necessary, giving directions.

It was ordered that the Commonwealth should pay the costs of the petitioners and of Mrs Hill.

AT 2.26 PM THE MATTER WAS CONCLUDED