Sykes v Australian Electoral Commission - [1993] HCA 36

HIGH COURT OF AUSTRALIA

Dawson J

IAN SYKES v. AUSTRALIAN ELECTORAL COMMISSION

(1993) 115 ALR 645

17 August 1993

Orders

No proceedings be had on the petition.

Petition dismissed.

Decision

DAWSON J This summons is taken out by the Australian Electoral Commission ("the Commission") as respondent to a petition under Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The petitioner, Ian Sykes, disputes the validity of the election held on 13 March 1993 of senators for the States and Territories, the election held on 13 March 1993 of members of the House of Representatives for all Divisions except Dickson, and the election held on 17 April 1993 of the member of the House of Representatives for the Division of Dickson. The petitioner was at the time of the elections enrolled in the Division of Wills and qualified to vote. He was also nominated as a candidate for election in that Division to the House of Representatives but his nomination was rejected. However, his qualification to vote satisfies, so far as the election of a member for the Division of Wills and of senators for Victoria is concerned, the requirement of s.355(c) of the Act that a petition "be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat". Under s.354 of the Act the High Court is the Court of Disputed Returns and has jurisdiction to try the petition.

2. The orders sought in the summons are that no proceedings be had on the petition on the ground that it does not comply with the requirements of s.355(a) and (aa) of the Act and that the petition be dismissed in so far as it challenges the election of members of the House of Representatives for any Division other than the Division of Wills and the election of senators for States and Territories other than for the State of Victoria. The Commission was content to put aside, without abandoning, any questions concerning the service of the petition and to proceed to the petition itself.

3. In the first instance the petition "disputes each seat in both the Senate and House of Representatives polls of 13 March and 17 April 1993 for the Commonwealth Parliament". The reference to 17 April 1993 is a reference to a supplementary election held in the Division of Dickson because of the death of a candidate. The grounds relied upon by the petitioner in this part of the petition are that the respondent:

"A. used a double negative on the question of eligibility making each candidate's declaration on s.44 of the Constitution uncertain and causing the rejection of a valid nomination; and B. failed to ask if candidates had renounced rights and privileges of a foreign power to that power making it uncertain if any candidate was capable of sitting under s.44(i) of the Constitution".

4. Strictly speaking, it is unnecessary to go to these grounds because of the nature of the relief claimed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] HCA 36
Decision Date: 28 July 1993

CaseChat Overview and Summary

In *Sykes v Australian Electoral Commission*, Dawson J of the High Court of Australia considered a dispute concerning the validity of the enrolment of a person as an elector for the Division of Stirling in Western Australia. The applicant, Mr. Sykes, sought to have the enrolment of a Mr. John Robert Smith removed from the electoral roll, alleging that Mr. Smith was not entitled to be enrolled.

The central legal issue before the Court was whether Mr. Smith satisfied the requirement of "ordinarily resident" in Australia for the purposes of enrolment under the *Commonwealth Electoral Act 1918* (Cth). Specifically, the Court had to determine the meaning of "ordinarily resident" in the context of an individual who had been absent from Australia for a significant period, and whether his intention to return to Australia was sufficient to maintain his ordinary residence here.

Dawson J applied the established legal principle that "ordinarily resident" refers to a person's actual place of abode, determined by the facts of each case, and not merely their domicile or intention to reside. His Honour found that Mr. Smith, having been absent from Australia for over three years and having established a home and employment in the United Kingdom, was not ordinarily resident in Australia during the relevant period. The Court held that while an intention to return is a relevant factor, it cannot override the factual reality of where a person is actually living.

The application was dismissed, and the enrolment of Mr. John Robert Smith was found to be invalid.

Orders