Sykes v Australian Electoral Commission

[1993] HCATrans 205

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Melbourne No M47 of 1993

B e t w e e n -

IAN SYKES

Petitioner

and

AUSTRALIAN ELECTORAL COMMISSION

Respondent

Summons

DAWSON J

Sykes(S) 1 28/7/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 28 JULY 1993, AT 10.24 AM

Copyright in the High Court of Australia

MR I. SYKES:  Your Honour, I appear for myself. I

anticipate your question as to the signing of the

petition, having been here before.

HIS HONOUR:  You are used to this procedure, Mr Sykes.

MR SYKES: That is right.

HIS HONOUR:  I will give it to you before we call on

Ms Kenny to announce her appearance and you can

identify your signature.

You are the Ian Sykes named "in the petition?

MR SYKES:	Yes, I am.
HIS HONOUR:	And that is the signature which appears on the

second page of the petition, is it?

MR SYKES:  Yes, that is my signature and the second

signature is that of Mr Noel Smyth who is this

gentleman here behind me, and the third signature

is Mr Daniel Hogarty, who is this person.

Mr Daniel Hogarty is the person who is spoken of in

part 'D' II of the petition. I saw those people

sign it as well and that is my name and

handwriting.

HIS HONOUR:  Thank you. If you would hand it back. Well

now, Ms Kenny, you seek leave to appear for the
respondent.

MS s.c. KENNY:  I seek leave to appear for the Australian

Electoral Commission. (instructed by the

Australian Government Solicitor)

HIS HONOUR:  You have no objection to leave being granted,

Mr Sykes?

MR SYKES:

No.

HIS HONOUR: Leave is granted. It is your summons again, is

it not -

MR H. BORENSTEIN:  Your Honour, before the Court moves on to

the summons, might I seek leave to appear on behalf

of Mr Cleary who is a successful candidate named in

the petition in the Division of Wills, and I seek
leave to appear on his behalf for the purpose of
seeking leave to enter a conditional appearance for

the purpose of putting arguments as to the

jurisdiction of the Court to entertain this

petition. (instructed by Maurice Blackburn & Co)

HIS HONOUR:  Yes, Mr Borenstein. Is any objection raised to

Mr Borenstein's appearance?

Sykes(S) 2 28/7/93

MS KENNY:	Not by me, Your Honour.
HIS HONOUR:	Mr Sykes?
MR SYKES:	Your Honour, I would agree to an appearance if it

was consistent with Order 68 rule 6(1) and (2).

That means it is an ordinary appearance, not a

conditional appearance.

HIS HONOUR:  I did not understand you to seek leave to enter

a conditional appearance.

MR BORENSTEIN:  Your Honour, I did indicate that my client

does seek to enter a conditional appearance because

he does seek to challenge the jurisdiction of the

Court having been properly invoked by this

petition.

Your Honour might recall that on the last

occasion when Mr Sykes petitioned the Court in

respect of the by-election in Wills a similar

application was made to Your Honour and granted,

both to Mr Cleary and to one of the other

candidates in the election and on that occasion

Your Honour was referred to a decision of

Justice Mason, as he then was, in the matter of

McCauley v Hamilton Island Enterprises, (1986)

61 ALJR 235. In that case the defendants made

applications both to set aside the proceeding on

the grounds that the Court had no jurisdiction and,

alternatively, to seek a stay of the proceedings

under a different order of the Court's rules.

At page 236 His Honour records that in order

to preserve the first and second defendants'

position in relation to the question of

jurisdiction, "I granted them leave to enter a

conditional appearance", and it is on that basis

that I ask Your Honour to grant leave to Mr Cleary,

at this stage, to enter only a conditional

appearance.	Of course, if jurisdiction is found by
the Court then, by operation of the rules, the

conditional appearance becomes unconditional. But

at this stage Mr Cleary is concerned to protect his

ability to challenge the jurisdiction without being

seen to concede the validity of the petition.	It
is on that basis that I ask Your Honour, for the
specific purpose of challenging jurisdiction, to

grant leave to enter only a conditional appearance.

HIS HONOUR:  Yes. I am a bit mystified as to how entering

an unconditional appearance could confer

jurisdiction on the Court if it does not have it

but, still, I probably expressed that mystification

on the previous occasion too, did I?

Sykes(S)	28/7/93
MR BORENSTEIN:	I think Your Honour did but at the end of

the day Your Honour granted the leave on _he

understanding that the matter of the jurisdiction

would be dealt with expeditiously and, of course,

on this occasion, we are here to deal with it

today.

HIS HONOUR:  Well, we are not. We are here to deal with

Ms Kenny's summons.

MR BORENSTEIN:  That is so, Your Honour. The summons that

Ms Kenny has issued goes to that issue,

Your Honour, and we would simply wish to put

arguments in support of that in so far as

additional arguments are required or are seen to be

necessary.

HIS HONOUR:  Very well, Mr Borenstein. Mr Sykes, it cannot

injure you if I give leave to enter a conditional

appearance. I do not know what effect it has.

MR SYKES: Fine, I accept that.

HIS HONOUR:	And, as Mr Borenstein points out, if it turns out that the Court does have jurisdiction then it
becomes an unconditional appearance, so if you
accept that we will proceed on the basis that it is
an unconditional appearance. You do not have anything to say about that, do you, Ms Kenny?
- MS KENNY:	I have nothing to say on that matter,

Your Honour.

HIS HONOUR:  It seems to me an excess of caution but,

still - all right, then we can proceed, and you

have leave to enter a conditional appearance,

Mr Borenstein.

MR BORENSTEIN:  Thank you.

MS KENNY:  Your Honour, once again, apart from the matter of signature, there are the two problems of

publication and service. It would appear from the
petitioner's affidavit of service of 12 May 1993

that he has not complied with Order 68 rule 5 and,

further, it is unknown to the respondent whether

Mr Sykes has in fact complied with Order 68 rule 3,

that is, publication in either the Commonwealth or

State Gazettes or a newspaper circulating within relevant divisions.

HIS HONOUR: Yes. Service, as I read the papers, was

effected by electronic means in Parliament House.

MS KENNY:  I think that, Your Honour, is not a means known,

unless by substituted service, to this Court. But

it may be, Your Honour, that as in the last case we

Sykes(S) 28/7/93

might leave the matter of service aside for the

moment.

HIS HONOUR:	Very well.
MS KENNY:	That is not to be taken as abandoning the question of service but, if my submission is
correct, that should lessen, at least, the need to
serve every sitting member of the House of Representatives and senators. And, similarly,
Your Honour, in relation to publication, there may
be a problem.
HIS HONOUR:	What is the problem?
MS KENNY:	The problem is the respondent does not know

whether Mr Sykes has complied with the gazettal
requirements or published his petition in a

newspaper. It may be, again, that we can leave

those two questions to one side for the moment and

return to them when Your Honour has delivered

judgment on these submissions.

HIS HONOUR:	Very well.
MS KENNY:	Your Honour, in form, once again, Mr Sykes, as

petitioner, challenges the election of every member

of the House of Representatives on 13 March and

17 April 1993, the latter being the election in the

Division of Dickson. He also challenges the

election of every member for the Senate on 13 March.

Your Honour, again, I would submit that it is

not open to the petitioner to challenge any

election other than an election for the seat of

Wills and for senators for the State of Victoria.

It would appear that Mr Sykes was qualified to vote

at the election for Wills.	Your Honour, do you
wish me to repeat again - - -

HIS HONOUR:  No, no.

MS KENNY:	May I simply
HIS HONOUR:	I think I might just ask Mr Sykes - Mr Sykes,

you heard the arguments which were put in the last

case, did you not?

MR SYKES:  I did, yes.

HIS HONOUR: Concerning the impossibility, as Ms Kenny

submits, of challenging the whole of an election,

the submission being that a petitioner is confined

to challenging, so far as the House of the division in which he is enrolled and so far as the Senate is concerned, senators for Victoria.

Sykes(S)	28/7/93
MR SYKES:	Yes, I understand that but I wish to argue

that - - -

HIS HONOUR: Well, you wish to argue to the contrary.

MR SYKES:	Yes, I wish to argue to the contrary.
HIS HONOUR:	But you do not wish Ms Kenny to repeat the

arguments which were put in the previous case?

MR SYKES:  No, I do not, Your Honour. No, I think if she

gave me a copy of the cases she referred to, that

would be sufficient.

HIS HONOUR:  If you would give Mr Sykes a copy of Muldowney

v Australian Electoral Commission, Ms Kenny.

MS KENNY:  Mr Sykes has a copy of Muldowney, I understand,

Your Honour.

HIS HONOUR:	Has he? Very well, you may take it that you have repeated the arguments which you have already
put in the previous case.  You have no objection to
that, Mr Borenstein.
MR BORENSTEIN:	No, Your Honour.
MS KENNY:	It would follow, Your Honour, if my submission

were accepted upon that argument, that the prayer

for relief in 'A' of Mr Sykes' petition would fail,

his prayer being that, "These elections" -

presumably, all the elections which he seeks to

contest - be declared void and, similarly, his

prayer for relief in 'B' would fail.

The next matter which I would like to address

is the question of compliance with section 355(a)

and (aa) again. The first ground that I would like

to turn to is ground 'C', the effect of which is

that the petitioner disputes each seat in the

Senate and in the House on the grounds that the

Australian Electoral Commission wrongly, "Accepted

for the seat of Wills the invalid nominations of"

the following candidates. In fact, Mr Sykes seeks

to challenge all but two of the candidates for the
seat of Wills but the most important challenge is

the challenge to acceptance of the invalid

nomination of the successful candidate, and in this

case the successful candidate was Mr Philip Cleary,

and that appears from the affidavit of Ms Dawson,

filed on 16 July.

HIS HONOUR:	Yes, I have read that.
MS KENNY>:	The petitioner alleges that the nomination was

invalid by reason of:

Sykes(S) 6 28/7/93

Philip Cleary who being insolvent breached

section 44(iii) of the Constitution.

It is submitted that in relation to that allegation

Mr Sykes has failed to comply with section 355(a)

because he has failed to set out the material

facts. Section 44 of the Constitution relevantly

provides that:

Any person who ..... -

(iii) Is an undischarged bankrupt or

insolvent .....

shall be incapable of being chosen or of

sitting as a senator or a member of the House

of Representatives.

And in Nile v Wood, (1988) 167 CLR 133, at

page 139, the Court held that the word

"undischarged" in section 44(iii) was attached to

"insolvent" as well as to the word "bankrupt",

being:

part of a composite reference to the status of

a person who has been declared bankrupt or

insolvent and who has not been discharged from

that condition.

The Court further held that the petition in

that case was defective because it did not assert
that the person charged was an undischarged

insolvent; it merely asserted, as ·here, that the

person was an insolvent, and that was held to be a

failure to comply with section 3SS(a). As the

Court has already noted, a petition cannot be cured

outside the period of 40 days fixed by

paragraph 355(e) and the Court so held that in Nile

v Wood at page 137.

So, it is submitted that the petition fails to will depend, that is, that it fails to allege that	disclose the most important fact upon which relief
Mr Cleary was an undischarged insolvent, and that
is fatal, in my submission, to - - -

HIS HONOUR:  Now, you say that Mr Cleary having been

elected, if the petitioner on ground 'C' fails in

the allegation made in respect of Mr Cleary, then

he cannot succeed on any of the other grounds which

are alleged in 'C'?

MS KENNY: Yes, Your Honour, that is so.

HIS HONOUR: That being because of what?

Sykes(S)	7	28/7/93
MS KENNY:	For two reasons:	in this case it would not be

relevant to consider the validity of the

nominations of the other candidates because one

cannot challenge the successful candidate. In the

earlier Sykes matter - - -

HIS HONOUR:  In other words, whether or not their

nominations were valid does not matter because they

were not elected.

MS KENNY: That is correct, Your Honour.

HIS HONOUR:  And the fact that people may have voted for

them, in the end, does not matter.

MS KENNY:  It may have been different if the petition had

contained an allegation that the successful
candidate had been elected to office on the invalid
preferences of another candidate. That would be a

material fact which would, or should if it be so,

have been included within the petition in

accordance with section 355(a), but no such fact is

alleged and that defect is, in my submission,

fatal.

HIS HONOUR:  Yes, I see.

MS KENNY: This case is in a different position from the

earlier Sykes matter. In that case, Your Honour,

the position of the other candidates was relevant

or could have been relevant to the question of

relief and Your Honour, in the case stated,

referred certain questions concerning other

candidates to the Full Court. But now that the

Full Court has held in Sykes v Cleary that come

what may, if the successful candidate is found to

have been invalidly elected, the election in the

House of Representatives is void, then the position of the other candidates is irrelevant to the question of relief.

That appears, Your Honour, in Sykes v Cleary,

(1992) 176 CLR 77, at page 102, in the joint

judgment, and page 108 in the judgment of

His Honour Justice Brennan. The reason why the

Court, in that case, considered the position of the other unsuccessful candidates is stated to be that

they may have wished to stand for election but that

is by the by.

HIS HONOUR: Subsequently.

MS KENNY: Subsequently. That is by the by in this

particular instance. So, in my submission,

section 358(1) of the Act would prohibit any

further proceeding being had, at least on

ground 'C' of Mr Sykes' petition.

Sykes(S) 28/7/93

If Your Honour were against me in relation to

the other unsuccessful candidates - - -

HIS HONOUR: Just stopping there for a moment, what does "no

proceedings shall be had" mean? Do I dismiss the

petition if your submission is upheld or do I grant

a stay?

MS KENNY:  There is a difficulty there, Your Honour, and I

must admit it worried me. I notice in Nile v Wood

the petition was dismissed; in the case before

His Honour Justice Brennan, the petition was

dismissed; but, in my submission, the appropriate

order would be to grant a stay because "no

proceeding" would seem to contemplate that no

proceeding at all be had.

HIS HONOUR:  Maybe it would be safer to proceed in the words

of the section and say that, "no proceeding be

had", but you cannot throw any light on why that

particular phraseology was adopted.

MS KENNY:  No, Your Honour. I can only inform the Court

that in previous cases the Court has determined to

dismiss the petition.

HIS HONOUR: 

Yes, very well.

MS KENNY: 

Your Honour, if Your Honour were against me in

relation to the other candidates, I would submit
that Mr Sykes has failed to set out those facts in

relation to Mr Kardamitsis and Mr Minas which would

justify any grant of relief and the Court should

dismiss the petition or strike out the matters

relating to Mr Kardamitsis and Mr Minas.

The petition alleges a want of attestation as

to the renunciation of certain rights which are

undefined in Greece but there is no legal basis for

requiring any such attestation, either in the Act

or elsewhere.

In relation to Mr Minas, the deficiencies of

the petition are clear in that the petitioner has
not alleged the subject-matter upon which he

relies.

He does not allege, for example, that

Mr Minas had the privileges and rights of a citizen

of Greece nor, for that matter, does he allege that

in relation to Mr Kardamitsis.

In relation to Mr Kardamitsis, he does not

allege that at the time of his nomination that any

rights that he had - that Mr Kardamitsis had not

taken reasonable steps to dispose of any such

rights that he had had in accordance with the

Full Court's decision in Sykes v Cleary, and I

would refer the Court to page 108 and to page 114.

Sykes(S) 9 28/7/93

Then in relation to the other candidates,

Mr Murgatroyd, Mr Mantell and Ms Savage, it is

submitted that having regard to the number of votes

cast and the distribution of preferences, whatever

the position be in relation to them, it could not
affect any relief granted, for two reasons: first,
because the Full Court has held that if the

unsuccessful candidate was invalidly elected, the

election is void but, in any event, they received

such a small proportion of the votes that the

question really falls to one side. And I would

simply refer to section 365 of the Commonwealth

Electoral Act.

Then turning to ground 'A' of Mr Sykes'

petition, Mr Sykes disputes each seat in the Senate

and the House:

On the grounds the Australian Electoral

Commission wrongly:

Used a double negative on the question of

eligibility making each candidate's

declaration on section 44 of the Constitution

nomination. uncertain and causing the rejection of a valid

And it is submitted that Mr Sykes has not here set

out anything which would justify relief under the

Act, and I would refer again to Cole v Lacey,

112 CLR, at page 51. The first matter is that

clearly the allegation would not entitle the

petitioner to any relief in relation to those

elections where nominations were not effected.

Secondly, it would not defeat the validity of the

election of a successful candidate where a valid

nomination had been rejected. That would simply be

a matter extrinsic to the return of that candidate. Thirdly, the allegation is too vague and

uncertain to stand. The location of the double

negative is not stated and the petitioner does not

state by reason of what facts the double negative -

if I may call it that - caused any nomination, and

if so what nomination, to be invalidly rejected.

He does not state when, where or on what date or in

what circumstances that nomination was effected.

But leaving all that to one side, if it be assumed

that the petitioner is referring to one of the

questions on the forms for nomination of

candidates, the allegation that the Commission

wrongly used the double negative question must fail

because the Commission is required to use forms

appearing in the schedule to the Act and those

forms are adopted by section 166 of the Act.

Sykes(5) 10 28/7/93

So that if one goes to section 166, it adopts

forms in Form C through to DA, and then if one goes

to Form Con page 282 of the reprint Your Honour

will see that towards the foot of the page the form

provides in the case of nomination of senators

that:

I, the candidate named above, state that:

I am not, by virtue of section 44 of the

Constitution incapable of being chosen or of

sitting as a Senator.

Answer:

Yes [ ] No [ ]

And it goes on to say:

I am qualified under the Constitution and the

laws of the Commonwealth to be elected as a

Senator -

et cetera.

Now, if that be the question to which Mr Sykes

refers, and it does not appear on the face of the

petition - and that is a fatal defect, in my

submission - but if Your Honour were against me on

that, none the less any such question is clearly

adopted by the Act and approved by Parliament. So

that whatever basis one looks at, Mr Sykes cannot

establish that, as he alleges, the Commission

wrongly used any such question, it being the

question approved by Parliament.

I should add, Your Honour, that the petitioner

does not set out or allege any facts which would

indicate that the Commission employed a form of

question other than that approved by Parliament.

As to ground 'B', the petitioner alleges that

he disputes each seat in the Senate and the House:

On the grounds the Australian Electoral

Commission wrongly:

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

section 44(i) of the Constitution.

Again, it is submitted that nothing which is

asserted in ground 'B' would satisfy the

requirements of section 3SS(a) nor entitle the

petitioner to the relief which he seeks. The

Sykes(S) 11 28/7/93

conduct of the Commission, particularly in relation

to the acceptance and rejection of nominations, is

controlled by Part XIV of the Act. So, the

qualifications for elections are dealt with in 163

of the Act. The mode of nominations, as I have

already indicated to Your Honour, is dealt with in

section 166 of the Act. The person to whom that

nomination is made is dealt with in 167 of the Act.
There are provisions dealing with grouping and

party endorsements in section 168 of the Act. The requisites for nomination appear in section 170 of

the Act, and that requires that:

A nomination is not valid unless, in the

nomination paper, the person nominated:

(a) consents to act ..... and

(b) declares that -

he is qualified under the Constitution to be

elected and that:

the person is not, and does not intend to be,

a candidate in any other election -

and then there are provisions dealing with

citizenship and particulars of citizenship are

requested. All those matters are dealt with in the

forms appearing in the schedule.

The only power to reject a nomination and

requests appears in section 172 and that provides

that:

Subject to subsection (2) -

of 172 -

a nomination shall be rejected by the officer

to whom it is made if, and only if, the

provisions of section 166 -

through to 171 -

have not been complied with -

and I shall not read the remainder of the section,

save that it appears that the Commission was

without any power at all to make or ask a question

or make a request of the kind identified by the

petitioner in ground 'B'.

And so it is submitted that there could be no

duty nor power to ask any question of the kind
contemplated and there is no material fact asserted

in ground 'B' which would entitle the petitioner to

Sykes(S) 12 28/7/93

the relief sought, nor would the Court be in a
position to grant, nor is there any ground

disclosed which could form a basis for the relief

sought.

There remains only grounds 'CI' and 'DII'. In

'CI' the petitioner asserts that he disputes the

seats on the grounds that the Commission wrongly

accepted the invalid nominations of certain

candidates and:

Rejected the valid nominations of:

Ian Sykes who complied with the Commonwealth

Electpral Act 1918 and was a citizen entitled

to restand for Wills.

In this ground the petitioner asserts the outcome

for which he contends. He does not, it is

submitted, set out the material facts upon which

that outcome would depend, as section 355(a) would

require him to do.

Your Honour, the exhibit PD4 to the affidavit

of Ms Dawson includes the nomination form completed

by Mr Sykes and in response to the Commissioner's

request for particulars, the petitioner simply

replied that he had citizenship as he was "a

subject of Head of State; Mother: Australian".

Now, that, on this application, is irrelevant but

it does show that whatever facts had to be set out

in the petition would have included at least those

kind of facts and, in my submission, more facts

than that in order to satisfy a claim or contention

that his nomination had been invalidly rejected.

But in any event, ·even if Mr Sykes' allegation

were correct, it could have no effect on the

election of a successful candidate and it could

not, therefore, entitle the petitioner to the

relief which he seeks in 'CI' of his prayer for

relief, namely, that "The wills election be

voided" because whatever the position, the election

of the successful candidate was valid or cannot be

successfully challenged and it is immaterial what

the position of other nominations were.

In relation to ground 'D', it is again

submitted it discloses no facts which would

indicate that a valid nomination was rejected.	The
ground is that the Commission:

Rejected the valid nominations of:

Daniel Hogarty as a Senate candidate from

Victoria for answering no to the question in

'A' above.

Sykes(S) 13 28/7/93

Now, it is not asserted that that answer was

wrong nor is it asserted that Mr Hogarty was misled

but if that is put to one side, even if Mr Hogarty

answered the question wrongly, no further facts are

asserted which would suggest that his nomination

was wrongly rejected. The circumstances of its

rejection are simply not set out and, in any event,

even if the contention made by the petitioner were

correct that it had been wrongly rejected, it would

still not affect the election of the successful

candidate in the seat of Wills, in this case

Mr Cleary.

So that it is my submission that each of the

prayers for relief are unavailable or cannot be
granted by this Court under section 360 of the Act,

the petitioner fails to establish those facts which

would be necessary to establish to support the

petition and that the Court should, in my

submission, dismiss it. Those are my submissions,

Your Honour.

HIS HONOUR:  Thank you, Ms Kenny. You support Ms Kenny's

submissions, do you, Mr Borenstein?

MR BORENSTEIN:  Your Honour, I do and I ask for the

opportunity of giving Your Honour just some brief

submissions in addition to what has been put to

Your Honour. There are some references to some of the authorities which my friend has not given

Your Honour which I would like to give Your Honour.

HIS HONOUR:  Perhaps if you put them now, 1· think that would

be the convenient course.

MR BORENSTEIN: Yes, I am happy to do that, Your Honour.

Firstly, might I give Your Honour a specific

reference to section 365 of the Commonwealth

Electoral Act which my friend referred to in the

earlier matter and which, Your Honour might recall,

has the effect of protecting the validity of an

election where there has been some error or

omission by an electoral officer which did not

affect the result of the election.

Your Honour, my learned .friend has made

submissions to you about the allegations in

grounds 'A' and 'B' and also in relation to

ground 'D' where it is asserted that there may have

been some error in the conduct of the election by

the returning officer. I support the submission

which my learned friend makes to you about the fact

that the returning officer was acting in accordance

with the obligations under section 172.

In In Re Wood the Full Bench of the Court in fact recorded that the electoral officials do not

Sykes(S) 14 28/7/93

have a general mandate to refuse nominations but

must act in accordance with the requirements of

section 172. That appears in 167 CLR 167 at about

point 7 where the Court says:

the ministerial officer who accepts

nominations has no general power to refuse a
nomination in due form -

and they refer to section 172.

So we submit, in support of the submissions

that have been made, that where, in conformity with
the requirements of the Act, candidates have filed the appropriate prescribed nomination forms, there

is no discretion in the returning officer or the

electoral officers to refuse those and therefore,

without something more, it cannot be said that

there has been any conduct which would invalidate

the election and even if there were some error, it

would be necessary for Mr Sykes to demonstrate how

that affected the result in order to be able to

bypass the provisions of section 365, and he has

not done that in his petition.

In relation to paragraph 'C', again I support the submissions that were made by my learned friend

and particularly in relation to the manner in which

this should be approached, namely to look at the

position regarding Mr Cleary first, because he was

the successful candidate, and the proposition which

she put to Your Honour about looking to his

position first. Putting aside the position of the

unsuccessful candidates if he was validly elected

is also the subject of a ruling by the Court in In

Re Wood, which again appears at page 167 of that

report in about the middle of the page, where the Court refers to the decision of Hickey v Tuxworth

and finds it unable to accept the conclusion in

that case and states that:

if the unqualified candidate's nomination in

was properly on the ballot paper, it is
difficult to see how the election miscarried.

The problem of want of qualification arises

under the Act if an unqualified candidate is

elected, but an election is not avoided if an

unqualified candidate stands. If it were
otherwise, the nomination of unqualified
candidates would play havoc with the electoral
process -

that case was formally correct and his name

So that is the passage which is the authority for the proposition which my learned friend put to you.

Sykes(5) 15 28/7/93

We also support the submission which she makes

that the allegation in the petition about Mr Cleary

is deficient and does not comply with

section 355(a) of the Electoral Act. Might I point

out to Your Honour that the allegation is in terms

very similar to that which was made against Mr Wood

in the Nile v Wood case and which is set out at

page 138 of the report in that case. At about
point 7 of the page, the Court there comprising

Justices Brennan, Deane and Toohey set out the

allegations in the petition against Mr Wood, and

the allegation about insolvency is almost identical

to that here where it reads simply, "Robert Wood is

insolvent". Of course, the Court then goes on to
discuss what the meaning of insolvency was on a
historical basis and found that the allegation
could not be sustained. But in relation to the

form of the allegation, at page 139 the Court says:

Paragraph 2(d) -

which is the relevant paragraph -

merely reproduces one of the words in

s 44(iii) of the Constitution.

They find that to be inadequate. That, together with the other inadequacies, led to the petition

there being dismissed.

In relation to the other nominations that are

referred to in paragraph 'C', again we adopt the

submissions that were put to Your Honour that they

do not set out any of the necessary facts to

demonstrate that relief under the Act is justified.

My learned friend gave Your Honour a reference to

Cole v Lacey. Might I also indicate to Your Honour

that in Nile v Wood itself at page 138, the Court

there also made a similar ruling on the authority

of Cole v Lacey. There is a further authority in a
decision of a Full Bench of the Court in In the

Matter of a Petition by Helen Therese Berrill,

(1978) 52 ALJR 359 where, at page 360 in the

judgment of the acting Chief Justice Gibbs, as he

then was, he says:

Further, it is established by the

decision of Griffith CJ in Cameron v Fysh that

if the petition does not set out the facts

relied on to invalidate the election it is not

possible to allow an amendment of the petition

after the period of forty days has elapsed,

for to do so would in effect be to permit an

evasion of the requirements of s 185(e) -

which is the predecessor to 355. But again, they

speak of the facts relied on to invalidate the

Sykes(5) 16 28/7/93

election. In that judgment the other four members

of the Bench agreed. So that there is considerable

authority for that proposition as to what the facts

that need to be set out must show.

I adopt, without any additional comment, Your Honour, the submissions that were made about

the rejection of Mr Sykes' nomination. Similarly

in relation to Mr Hogarty, I submit that on the

basis of the submissions that have been made, the
petition does not meet the requirements of

section 355(a). As was said by my learned friend,

paragraph (aa) was inserted in 1990 for the express
purpose of increasing the requirement for

particularization of the allegations that were

made. That appears from the explanatory memorandum which accompanied the bill and also from the second

reading speeches.

As to the orders which Your Honour should

make, I note the question Your Honour raised in

terms of the terminology in the Act, it is not easy

to understand why the courts have not adopted a

process which reflects that terminology, but I can

say to Your Honour that in Nile v Wood, in Cole v

Lacey and in Berrill, which were cases which dealt

with this issue of non-compliance with the need for
the material facts, in each of those cases the

Court dismissed the application rather than make an

order in another form. So in my submission, the

appropriate course for Your Honour to take with

this petition is to dismiss it with costs.	If Your
Honour pleases.

HIS HONOUR:	Yes, Mr Sykes.
MR SYKES:	Your Honour, first I refer to the state of the

paperwork. I was only given a copy of the various

forms from the Electoral Commission this morning,

so I am at somewhat of a disadvantage, although I

did read at the Court files on Thursday week the

submission of the Commonwealth Electoral Commission

and the attachments.

HIS HONOUR:  You are prepared to proceed though, are you,

Mr Sykes?

MR SYKES:  Yes, I am, and I have given that undertaking to

the Electoral Commission, but nevertheless it has
put me at a slight disadvantage. Secondly, of

course, I have had nothing at all from Mr Cleary.

HIS HONOUR:  But you are not asking me to do anything about

it?

MR SYKES:  No, I am not.

Sykes(S) 17 28/7/93

HIS HONOUR:  Mr Sykes, what is the position with service?

We need not dwell on this, but - - -

MR SYKES: That is the next point on the paperwork. First

of all, service has been effected through the Parliament in the way set out in an affidavit issued by me.

HIS HONOUR:  That is by an officer of the Parliament sending

the petition by electronic means to each member?

MR SYKES: That is correct. Secondly, I personally served a

person over 20 years of age at Mr Cleary's

residence at 21 Hoffman Street on that following

Sunday, so he was served, in a way, doubly. That

fact is also set out in my affidavit. So far as the advertisements in the gazettes, an affidavit

also exists on the file which sets out that the

petition has been advertised in the Commonwealth

Gazette and in the Victorian Gazette, plus all

other gazettes.

HIS HONOUR:	Yes, very well.
MR SYKES:	Also in the affidavit it is stated that notice of

lodging the petition in the Court, plus a summary

of the petition, has been published in The

Australian newspaper and in a paper called The

Courier, which is commonly referred to as The

Coburg Courier. That is the main paper circulating

in the electorate of Mr Cleary.

I now turn to the material in the affidavit of Peta Dawson of the Electoral Commission which is in

justification of various submissions made to you

today. First may I turn to PD6 which is the last

attachment to the form." Those figures,

Your Honour, are not to be relied upon, and I give

the following as mere examples. If we refer to the

judgment of Sykes v Cleary of 1992, the correct

figures given for the various votes received by the
candidates include 18,784 by Bill Kardamitsis.	The
affidavit of PD6 indicates that although

Mr Kardamitsis received 29,499 votes, he suffered a swing against himself of 6.8 per cent.

Your Honour, the figures are not to be relied on.

All except two of them, in my opinion, are wrong.

That is the end of that.

If we turn to attachment PDS, we see a copy of

a letter of rejection of the application by the

nomination of Ian Grant Sykes, which is myself, to

stand again as a candidate for Wills. In my opinion, it is not possible for a divisional returning officer to reject a candidate in the way

he did. He can reject a candidate only if the mode

of the nomination is incorrect. That is, I think,

Sykes(S) 18 28/7/93

sufficiently set out in sections around 170, 166

and 167 as well as 172 of the Commonwealth

Electoral Act. Also, it is set out in the

electoral handbook of the department themselves,

where they simply say on page 8, regarding

rejection of nomination:

A nomination shall only be rejected if the

provisions relating to the mode of the

nominations are not complied with. No

nomination shall be rejected simply by reason

of a formal defect or error in the nomination.

They are words in line - - -

HIS HONOUR:  But I think what you were required to say, was

it not, was why you had Australian citizenship in

effect.

MR SYKES: That is right, but that is a question that

Your Honour might decide, but I do not think can be

easily decided by various divisional returning
officers. It may be, for instance, that a

candidate alleged Australian citizenship by other

means and was completely mistaken in their belief.

But on the other hand, that would then have to be

decided by a court, not by a divisional officer who

may not like the look of you, for example. So

really, they do not have the power to have rejected

my nomination and, in my opinion, they did not have

the power to reject the nomination of Mr Daniel

Hogarty either.

Section 172 of the Commonwealth Electoral Act

says:

No nomination shall be rejected by reason of

any formal defect or error in the nomination

if the officer to whom the nomination is made

is satisfied that the provisions of

sections 166, 167, 170 and 171 have been

substantially complied with.

In my opinion, if one cares to look at the copy of the nomination which was not the final nomination submitted by me for this election but nevertheless was the one before it, PD4, we see that in fact the

nomination did substantially - - -

HIS HONOUR:  What do you mean by that last comment, "this

was not the nomination"?

MR SYKES: It was not my nomination. It was my first

nomination which was rejected. Correspondence took

place with the Electoral Office which has not been

disclosed and a further attempt was made to lodge

my nomination on the last day, which was

Sykes(S) 19 28/7/93

19 February, and it was slightly different from the

nomination that has been included as the

exhibit PD4. In other words, the officer,

Phillip Reeve, of the Wills election, chose to

photostat only the first nomination I submitted,

and not the subsequent nomination.

HIS HONOUR:  There was no difference in the candidate's declaration, was there, that appears on - - -

MR SYKES:  Yes, there was, but not material. I think the

final nomination, "Date granted citizenship", some

word like "not" or "non" was written there.	I
remember it was in a different biro.

HIS HONOUR:  What was written there, Mr Sykes?

MR SYKES:  "Non". I will get the nomination if you wish.

HIS HONOUR:	"Non"?
MR SYKES:	Yes, it was some sort of disclaimer that

nothing - it was not left blank, as I recall.	I
will get you that if you need it.	So in my

opinion, the electoral officers were in fact
conducting a function of a .court by rejecting a

nomination, and they have no power to do that

because the mode of the nomination was in fact

correct.

The other attachments to the affidavit of Peta Dawson concern the issue of the writ for the

election and the dates that are concerned to see

whether the petition would be in time. As I

understand it, the petition is in time and

therefore they serve to show that the petition as

far as time is concerned has been lodged within the

40 days allowed, I think, by section 355.

HIS HONOUR:  No one is contesting that at the moment,

anyway.

MR SYKES: That is not contested. I understood,

Your Honour, that a reservation might have been
made early in the case as to whether publication

and so forth was properly carried out. Because

publication is said to be forthwith and a date is

involved concerning the lodgment of the petition, I

took it that the position of the Australian

Electoral Commissioner had not entirely abandoned

the fact that the petition might be out of time.

I therefore say that the affidavits filed by

the Australian Electoral Commission, so far as
dates are concerned, may be accepted but, as far as

anything else to do with me is concerned, is not to

be accepted. In fact, the true position is that on

Sykes(5) 20 28/7/93

this occasion the election at Wills was a closely

contested affair where, for example, the absence of

a candidate may have materially altered the

election because, on this occasion, Mr Cleary more

or less just scraped home, whereas on the previous

occasion he had a substantial number of votes in

excess of anybody else after preferences were

distributed. On this occasion he did not.

Therefore, I suggest that it is even more

relevant on this occasion that the lists of other

candidates might be considered. In other words,

because of.an interaction among candidates which

occurs, for example, by people, say, offering

somebody else to pay for their election literature

if they will hand out cards on election day in

which a particular candidate is ahead of another

candidate, often occurs.

So elections are in fact interactive affairs.

The absence of myself, for example, would have

benefited Mr Cleary. If other candidates were

accepted invalidly, in my opinion the election

result could be uncertain because there were more

than two candidates in the election. If there are

only two, of course, interaction cannot occur.

There were more than two candidates. Also as to

the question of sufficiency of any interactive
effect, because the result was close and the number

of candidates on which questions can be raised is

several, I say that the result is uncertain in this

case, whereas probably on the last case where

Mr Cleary had so many votes in excess of anybody

else, the result was not so uncertain on the

grounds of interaction.

That is the end of my submission on the

affidavit of the Australian Electoral Commission,

and I might now turn to the points that I think

they have made or tried to make. The petition

starts with the word "PETITIONING" and ends with

the word "FIT". The submission made by the

Commissioner appears to put more emphasis on what

might be termed the cover page and the backing page

than the actual contents of the petition itself.

The petitioner alleges he was qualified to

vote for Wills and for senators from Victoria and

nothing else. The petition is widely based for the

simple reason that where - and mentions the dates

13 March and 17 April - on the grounds that the

original general election stemmed from an origin on

13 March because a candidate died at Dickson.	A
supplementary election was held - the word
"supplementary" should really be "substituted" -
election occurred requiring the issue of a new
writ.	The original origin of the House of

Sykes(S) 21 28/7/93

Representatives election in which Mr Cleary was

elected was nevertheless subject to those two

original dates. The petition in the submission of

the petitioner can be read as consistent with both

and the whole of the people elected on

the propositions that the petitioner is contesting of senators

13 March and 17 April 1993.

In my opinion that is the correct drafting of

a petition, because of course at that stage the

judgment of Mr Justice Brennan was not available - that came out on 25 June - so really, the petition

cannot really add anything after it is issued, as

is accepted by the petitioner, but it can be struck down. In other words, a red pencil might be ruled; three things that go beyond the power of what the

petition might do.

The petition itself, of course, is an

interactive document with two other institutions.

One of those is Parliament and the other is the

Governor-General. If, for example, the petition

was upheld on ground 'A' or 'B', a general cause

would be given for the Governor-General to dismiss

the Parliament on the grounds that what applied to

the dismissal of one candidate equally applied to

the others, even though no petition was held

against them. Parliament itself could dissolve

itself on that ground because it would seem unfair,

for example, that a member was rejected on a ground

which was common to them all.

So it is the petitioner's submission that

grounds 'A' and 'B' are general grounds, and I do

not think I can find a reference for a petition

which has alleged a general ground, a general

ground being one in which three institutions can

respond: the High Court in a separate action, for

instance, against the members of Parliament, though

no such action has ever taken place, but

nevertheless that would be a ground to be brought

in the High Court - not the Court of Disputed

Returns but the High Court itself - if Parliament

refused to vacate their seats and if the

Governor-General refused to sack them.

I turn to the matter of the specificity of the

complaints in the petition. First, I say that this

petition is in greater detail than the petition

that was accepted before the Court in matter M25 of

1992, which is Sykes v Cleary. So in other words,

this petition sets out more details than that

petition was concerned. Grounds 'A' in the

petition of the petitioner are clearly and

specifically set out so that any ordinary person

reading the petition can make their way through the

Sykes(S) 22 28/7/93

documents to find exactly what the petitioner is

alleging.

The petitioner says a double negative was

used. There is only one double negative in the

form of nomination, and therefore the double

negative referred to can be found. If a double

negative occurs, there is no answer in language of

"yes" or "no". For instance, Mr Hogarty could

answer the question, "I am not, by virtue of

section 44 of the Constitution, incapable of being

chosen or of sitting as a senator" - he can

honestly and properly answer that question, "No,

I'm not; I'm not debarred by the Constitution from

sitting."

HIS HONOUR: That is not what it asks.

MR SYKES: In common parlance, I think it asks that. In

other words, his answer is a double negative cannot

be answered merely by "yes" or "no".

HIS HONOUR:	At the moment I do not see that, Mr Sykes. say that someone is not incapable of being selected means he is capable of being selected. It is	To
perfectly clear.

MR SYKES:  The answer to that question can be properly put

as, "No, I am not incapable of being selected."

That is an honest proper answer in any language that is used in the English-speaking world, to my

knowledge.

HIS HONOUR:	I do not see that for the moment.
MR SYKES:	I say that language is.breached by a double

negative. It cannot be answered "yes" or "no" in

any proper way. That is my submission, rightly or

wrongly. In other words, I believe that a person

can answer that question, "No, I am not incapable

of being chosen", even if the word "no" is spelt

K-N-0-W which is pronounced with the same symbols,

which is the symbol 00 when it occurs in number.

I next turn to the problem which was raised

whereby it is submitted by the Australian Electoral

Commission that the forms for the election have to

be accepted because they are approved by

Parliament, but that cannot be so on the grounds as follows: first of all, section 166(1) says:

Subject to subsections (lA) and (lB), a

nomination may be in Form -

"may be in the Form". Therefore, there is no need

to follow the forms at the back of this Act and I suggest, in fact, they were not followed in other

Sykes(S) 23 28/7/93

respects. In other words, it is a mere approval

that they may be followed. In my opinion, that

does not give power to the Electoral Commission to

use, for example, the double negative that I

complain of as my first ground.

Ground 'B' is also, in my opinion,

specifically set out so that any ordinary person

reading the petition can see what is alleged. I

say that the nomination form failed to ask

candidates whether they had renounced rights and

privileges of a foreign power to that power, and

the result of that is that a nomination might be

void for uncertainty. That is what I say on that

point and that is a general ground because no such

question was asked, in spite of the judgment of

Sykes v Cleary which, in my opinion, made that a

necessary question. But it simply was not asked.

Ground 'C':  I say that the Electoral

Commissioner accepted people who were clearly

modally incorrect. For example, Cecil Murgatroyd

gave his address on the form, which I inspected at

that electoral office, as a place in New Zealand.

Now, in my opinion, it is clear that that is wrong

and, modally, that nomination could not stand. He

was an active participant in the election and he

handed out how to vote cards.

Vasilios Kardamitsis and Jack Minas had not irrevocably renounced to the Greek minister

concerned their rights and privileges in Greece.

In my opinion that is clear, that they have rights

or privileges as alleged by the petitioner, in

Greece, and they had not given any evidence at all

that they had irrevocably renounced them, and that

is confirmed by a copy of the actual nomination,

for example, of myself, which is an attachment as

PD4, I think it is, to the petition of Peta Dawson.

In other words, no such question was asked, and

that goes to 44(i) of the Constitution, which is

referred to as B.	Katheryne Savage who breached section 44(iv)
of the Constitution by being a paid councillor of the city of Coburg which is an office of
profit under the Crown.

In his submission before this Court in Sykes v

Cleary, Mr Rose said that that was a clear drafting

of what a cause of action might be.

Philip Cleary who being insolvent breached

section 44(iii) of the Constitution.

Well, the Constitution makes it clear that two

aspects are being considered in 44(iii). The sixth

Sykes(S) 24 28/7/93

word is "insolvent" in that section, and the other

word is "bankrupt". Now, those two states of

existence, in my opinion, are completely separate.

A person could be bankrupt, though solvent.	A
person could be not declared bankrupt but
insolvent, and that can apply to any entity.

HIS HONOUR: Well, there is authority against you on that.

MR SYKES:  There is an authority against me, but I say that

that authority is inconsistent with the plain words

of the Constitution. In other words, if a man is

insolvent - I mean, the whole thrust of section 44

of the Constitution seems to me to go to the fact

that a candidate for an election should be a free

and independent party, not subject to pulling or

pushing or privilege or any pressure by the

administration itself. And all the sections of 44,

in my opinion, go to the aim of ensuring that

candidates are really, if you want to put it in the

affirmative, sticking up for Australia, and if you

want to put it negatively, that they do not have
various defects, and one of those defects is

insolvency.

Now, Cleary is the most important person on

list C, and in that I agree with a submission of

the Australian Electoral Commission, and therefore
his insolvency is, in the submission of the

petitioner, not provable by the petition itself,

which is merely a series of allegations, all of
which are not proved in the petition itself, they
are not required to be, but in fact they are proved
by the powers of this Court under other sections of

the Act. For example, 360 of the Act gives the

power of this Court to compel the attendance of

witnesses and the production of documents. Now,

clearly, such things arising after the discussion

of a petition generally - the petition's

requirements are 355 - these are really saying how

these things might be established. For instance,

another power of the Court is to examine witnesses

on oa~h. That is section 4.

Now, in my opinion, it is unreasonable that a

petitioner must set out in a petition the proof of

the petition. That is, in my opinion, a ridiculous

assertion and is just not sustainable by looking at

the language of the Act itself. The Act clearly

says you form a petition in certain allegations,

then there are methods of proving them, and the

Court has wide powers to make sure these things are

taken seriously. And why should they not be taken

seriously? If members of Parliament get into

Parliament who are insolvent, and especially if

they are insolvent to the Crown itself, those

people are subject to no independent action and in

Sykes(5) 25 28/7/93

fact might be manipulated by the administration for

the purposes of the administration and against the

ordinary electors. So I think the Act is well

founded and the structure of what has been said by

the Australian Electoral Commission is not

appropriate.

Also, I think the judgment in Wood is in a way

irrelevant to this case, because in Wood's case,

the insolvency alleged might have been a general
insolvency and general rights and privileges
overseas without - Nile v Wood never really

specified, for example, which country Wood was

alleged to have overseas rights and privileges in,

and that was one of the grounds for rejection of

that particular petition.

So I say that that might need to be reviewed

because the Constitution's words in section 44(iii)
are simple and clear, it is one of the shortest
wordings of the Constitution. It would be

difficult to understand why a person who was

insolvent could be allowed into Parliament. It

seems to me that the Constitution says no to that,

and therefore that is the ground alleged.

Now, that being so, it is my opinion that it

is completely inappropriate for the Australian

Electoral Commission to have issued as they did an

affidavit alleging bankruptcy. If we care to go,

for a moment, to the - I am sorry to say,

Your Honour, I have mislaid my copy, but it is in

fact the affidavit of Pushpa Gunasekera of

200 Queen Street, Melbourne, and it is dated

19 July 1993. Broadly, what that does is to say

that a person has searched bankruptcy records.

Now, Your Honour, that just cannot be relevant to

the application of the petitioner. The petitioner

does not suggest in any way that Mr Cleary is

bankrupt, which is a different word in the

Constitution; the petitioner says that he is

insolvent. That means his current assets, minus

his current liabilities, come to a negative

quantity, and that would be a matter of proof. And

I think it is clear what is alleged.

Mr Mantell failed to give an address, as the

final candidate, and that of course is a modal
error and therefore that nomination ought to have
been rejected. There were eight candidates in this

election, and six of them have doubt as to whether

they could have stood at all. Adding that to the

fact that the margin by which Mr Cleary was elected

in this case was very small, it is my submission

that the other candidates should be looked at as

well.

Sykes(S) 26 28/7/93

Also, there is a further reason why other candidates should be looked at as well, and that is

it still goes to relief of what the petitioner is

requesting. The last prayer for relief is for:

Any other order the Court deems fit.

Now, clearly, that is allowing the Court to look at

what type of alternative remedies might be

available if they disagree with what the petitioner

has particularly set out - "any other order the

Court deems fit". So, in other words, the Court is

not stopped in this case from, say, declaring

Mr Cleary not elected and ordering a recount.	It
could do that, for example.	So it still goes to

the relief available to the petitioner in the same

type of way as Sykes v Cleary did in 1992.

Now, the next thing is to say as to whether

section l(c)(i) is sufficiently clear under

section 355 of the Commonwealth Electoral Act. It

seems to me that the words in the petition are

clear:

Ian Sykes who complied with the Commonwealth

Electoral Act 1918 and was a citizen entitled

to restand for Wills -

in other words, in my opinion that sufficiently

sets out that Sykes is alleging that he had

complied - he ~s averring that he has complied with

the Commonwealth Electoral Act and was then

entitled to restand for Wills, but was not. And in

my opinion, that rejection adds to the uncertainty

of the election in Wills. In other words, at least

one candidate put forward and was not allowed to

restand or stand at all if some other candidate had

applied at the first time.

I now turn to 'D':

Daniel Hogarty -

who was also rejected -

as a Senate candidate from Victoria for

answering No to the question -

the double negative question. I have asked,

Your Honour, several candidates how they have

answered that and they have all said they have

asked the electoral officer at the place where they

lodged their nominations how to answer that

question, because it is confusing. It is slightly

mitigated, I admit, by a thing like a codicil which

appears as the next question, which more or less

affirms that you are allowed under the Constitution

Sykes(5) 27 28/7/93

to stand.	I will just give you that.	The question
after:

I am not, by virtue of section 44 of the

Constitution, incapable of being chosen or of

sitting as a Senator -

is followed by a declaration

I declare I am qualified under the

Constitution and laws of the Commonwealth to

be elected as a Senator.

Now, Mr Hogarty answered "Yes" to the second

question but "No" to the first question, and a long

correspondence then took place between Neil McKay,

who is the registered officer of the Pensioners and
Citizens Initiated Referenda Party, and the
Australian Electoral Commission, especially through

David Muffett, as to why their candidate was

rejected, and he is not, in a way, capable of

proper rectification anyway, for the simple reason

he had the luck to draw No 1 at the top of the

team, so he was pushed off and two other people

stood on the team for that party. So if the

election was reheld, he would be extremely lucky,

for example, to draw the same position again.	I
mean, he could draw that position but probably
there are 16 or 17 chances - or more than that
number - that he would not in fact draw such a
favourable position.

So, in my opinion, Mr Hogarty ought not to

have been rejected for answering "No" to that

question, on the ground that you perhaps do not

find favour with, which is the double negative, but

also on the ground that it comes under a minor

error. In other words, especially with Mr Hogarty

having confirmed that he is qualified to stand

under the Constitution, in my opinion, the answer

people's minds really as an insufficient error for	"No" is at least subject to some ambiguity in some
him to have been rejected. None of the letters
have been given to the Court by the Australian
Electoral Commission but, in my opinion, it is clear that he was rejected because he answered "No"
to that question, and I do not think that there has
been any objection to that is in fact the reason he
was rejected. There has been no answer to that.

I then say that ground 'A' is set out with

sufficient detail under section 355(a) and 355(aa)

in each matter to enable the Court to start

accumulating evidence to see whether the assertions

in the petition can be proved or might be upheld.

I say that it applies to Mr Cleary as well as to every other person named.

Sykes(S) 28 28/7/93

I now wish to turn to a recent judgment, which

is Muldowney, a judgment by Justice Brennan, the

Acting Chief Justice, delivered on 25 June 1993.

First I will refer to page 11 point 4,

approximately, where a ground for illegality did

not provide a sufficient reason. Now, "sufficient"

means that a weighing process is going on within

the judge's mind as to whether something should be

rejected because of a sufficiency. Therefore, an

additive process is going on and I think that that

is correct in terms of the petition that this

petitioner has put in, namely, that a large number

of anomalies have occurred, both in those people

who were accepted that ought not to have been

accepted, and those people who were rejected that

ought not to have been rejected.

Therefore, if the policy is followed of a

sufficiency of reason, then the additive process

within the petitioner's petition in this case is

consistent with a more likely or probable

conclusion that the result in Wills and the result for six senators in Victoria at the very least, is not sufficiently certain. So in that respect I

confirm the general approach and methodology of

His Honour Justice Brennan in Muldowney's case.

I now look at that case, page 12 point 5,

where it says:

An elector whose name appears on the Roll for

the Division of Boothby may sign a petition in

compliance with s.355(c) disputing the

election of a member of the House of election of Senators for the State of South

Australia but not a petition disputing an

election of members of the House of

Representatives for other Divisions or of

Senators for other States or Territories.

Your Honour, it is my submission that that sentence

is unsound and it is unsound for the following

reasons: that, for example, should Mr Cleary have

been rejected and not me, Mr Cleary living outside

the boundaries of Wills - which he does, he lives

three streets or so outside, in another electoral

division - he would then not have been able to,

say, challenge me as a successful candidate,

although the only interest in any outcome he really

had was in the Election Division of Wills, which is

the seat he wanted to stand for, rightly or
wrongly. So, in other words, if that is to be a
dicta, it only applies in a certain type of case.

Also, I point out that the Act does not require the petitioner to be the signatory at all.

Sykes(S) 29 28/7/93

The petitioner could, in fact - Ian Sykes could

dispute the election, for example, and not sign the

petition at all. There is no reason for that. If

somebody, for instance, in Darwin, knew a terrible

fault about some politician in terms of the

Constitution, I see no reason why the Crown should

exclude that person from giving evidence, which

would. - - -

HIS HONOUR:  I do not understand why Mr - I see, you say if

he had not been a candidate at the election he

could not dispute it?

MR SYKES: Yes, in other words, if our positions had been

reversed or I had lived outside the electorate.	I
mean, I have only stood for Wills, he has only
stood for Wills, and therefore it would seem very unfair against him. Also, is the general proposition, why should the Crown have an interest
in limiting the justice it can dispense? For
example, it would be absolutely ridiculous if
somebody had a car accident in the electorate of
Wills and then could raise the defence that they
lived in the electorate of Heidelberg.	The Crown

is, in a sense, indivisible, and that is what it

means. In other words, you divide law equally

among everybody. That means anybody can be a

petitioner. It is in the interest of the State to

cleanse itself when things go wrong, that anybody

can petition. They need not be the signatories.

But the Act requires that somebody in that election

must sign the petition. That is clear, and that is

the sort of person who stands in the shoes of the

Crown as a sort of litigant with an interest in the

outcome; a sort of man or woman who has got an

interest in the outcome of that seat. And all that

does is to make sure that the petition is sensibly

based, so far as the Court can do that.

HIS HONOUR: Yes.

MR SYKES:	It does not guarantee it, of course, but the thing is that it makes it a requirement to make it
appear that there is a person with a cause of
action.
HIS HONOUR:	Yes.
MR SYKES:	So I say that that section of the judgment of

His Honour Justice Brennan is unsound and

therefore, seeing the same question is raised in

this writ, that would be a point that could be

reviewed perhaps at an appropriate time.

I now turn to another section, on page 14

point 5 of the judgment where His Honour

Justice Brennan says:

Sykes(S) 30 28/7/93

The framework of the Act as well as the

language of s.355(c) indicates that the

jurisdiction of the Court of Disputed Returns

does not extend to the making of a declaration

that the entirety of a general election is

void. The jurisdiction to declare an election

void on the petition of a person "who was

qualified to vote thereat" is limited to those

elections in which the petitioner was an

elector entitled to vote.

Well, I say, for the same reasons as already given,

that that cannot, in my opinion, be maintained

either. It is true that the language of the Act

contemplates that you challenge senators or persons

in that electorate; that is clear, I agree with

that part. But I do not agree, for the rest of the
sentence, on the grounds that the person who was
qualified to vote thereat need not be the

petitioner, for nothing in the Act requires that

and, furthermore, I say it is a matter of public

policy that that ought not to be upheld. In other

words, if somebody has got a complaint about

anybody else in any other electorate, as well may

be the case, or lives in another electorate, they

should be allowed to challenge that result as a

matter of proper conduct.

Then we look at the problem of whether the

Court can really, in effect, send a message to the

Governor-General and to the Clerk of the

appropriate House, disqualifying all of them.

Well, in my opinion, that might be sound, that you

can only do that - this is my submission - but on

the other hand, it is pussyfooting around to do

that, in my opinion, because all you are really

doing is, in my opinion, acting as a mis-adviser to

the Governor-General.

HIS HONOUR: That may be your opinion, Mr Sykes - - -

MR SYKES: That is my opinion, yes.
HIS HONOUR:	Yes, but we have got to come back to what the

requirements are under the Act.

MR SYKES: That is right, exactly. Well, the requirements,

in my opinion, do not indicate that a petition

cannot really give a general ground, and if that is

so and that is held against me, then of course that

is how it is, but I am arguing that that ought not

to be held against me. I say that there are

general grounds for voiding an election, in which
case the High Court is one of the three pillars of

the society - - -

HIS HONOUR:  I think you have made that point.

Sykes(S) 31 28/7/93

MR SYKES:  Yes, I have made that point enough before you,

thank you. In other words, the advice it should
give to the Governor-General and to the Clerk of the Senate should be clear. The outcome of this

sort of action, it is not a great heap of gold for

a petitioner, it is a letter to the

Governor-General and to the Clerk of the Senate or

the House of Representatives. That is the product of the action. And I think the Crown ought not in

any way to be restrained from what it can do, and I

see that there are two disabilities in that

judgment referred to that appear to me to be

unnecessarily limiting the power.of the Crown

which, in my opinion, goes to the question as to

whether the Crown can be divided up in that way.	I
say the law cannot be divided that way and that it
is applicable more or less to - - -

HIS HONOUR:  Now, you are repeating yourself again,

Mr Sykes.

MR SYKES:  That is correct; that is my opinion. On

section 355(a) of the Commonwealth Electoral Act, I
disagree with the submission of the Australian

Electoral Commissioner that, for example, the

matter represented in 'CI' does not have an effect

on the successful candidate. My rejection, for

example, could have caused Mr Cleary to get a lot

more votes than he would otherwise have got and

that could have easily altered the course of the

election.

HIS HONOUR:  You have made that point too, previously.

MR SYKES:  Yes, thank you. On the point about disclosure,

the Australian Electoral Commission said that I

disclosed no facts. I say that, for the reasons

already given, that is not the function of a
petition, it is to say what the grounds are so the

other person is notified.

HIS HONOUR:	You have made that point.
MR SYKES:	I have made that point before.
HIS HONOUR:	You have said that it is facts, not the

evidence by which they are proved.

MR SYKES:  Yes, that is right. I agree with the submission

of Mr Borenstein that, under section 172, the

electoral officers accepting the nominations have,

in fact, very limited discretion to refuse a

nomination and I say that the only extra

particularization I could have given in the

petition would have been in fact to start arguing

the case which is, in my opinion, not the function

Sykes(S) 32 28/7/93

of the petition. That ends my submission,

Your Honour.

HIS HONOUR:  Thank you, Mr Sykes. Ms Kenny, or

Mr Borenstein. Ms Kenny, perhaps.

MS KENNY:  Your Honour, I have very little to say except

that questions of service and publication we might leave to another time and the respondent will take the opportunity to examine the affidavit, if it

appears on the Court file.

The matter of proof of facts or facts asserted: it would be my submission that Mr Sykes

has himself gone in to some of the facts which he
might have included in the petitio~ but he has not
included; those relate to himself in ground 'CI',

and to Mr Hogarty. In substance, as I understand him, he has said that Mr Hogarty's nomination was

in fact withdrawn by the group supporting

Mr Hogarty and other candidates were submitted.

Now, all that is really by the by but it serves to underline the fact that the petition does not set out those facts which were necessary to ground it and it is not a question, as Mr Sykes has said, of

going in to the evidence, it is simply the facts

are not there.

As to section 170, the position would appear to be that section 170(l)(c) requires particulars

of other means and section 172 says that the

relevant officer may reject a nomination if

section 170 is not complied with, and that would

appear to be the basis for action in this case.

As to the question of double negative, I do

not think I need say to Your Honour that a double

negative usually means a positive, and on that

basis the question is perfectly clear. In any

event, Mr Sykes seems to be saying that the

relevant question was a double negative which

appeared in the nomination form, and that may be

so, but he did not state that in his petition and

that is a fact which is fatal to his petition in

any event. In any event, the question
substantially follows the form of section 44 of the

Constitution.

As to the matter of the affidavit of

Ms Gunasekera, in one sense what Mr Sykes says is

quite correct; it is irrelevant to any matter

before the Court.	The question is, does the
petition on its face conform to section 355.	The

affidavit is before the Court to give, by way of

background only, and it stands for no more than

that.

Sykes(5) 33 28/7/93

As to the matter of what one does if the Court

is minded to follow His Honour Justice Brennan in
the Muldowney case, it would be my submission that

Mr Sykes is quite correct when he says that

grounds 'A' and 'B' raise general grounds and, in

my submission, there is nothing which can be saved

under grounds 'A' and 'B'; they would fail

completely on the basis that they challenge the
general election as such, they are not attached to
any matter relating to the Division of Wills or to

the election of senators. The only matters which

might conceivably relate to those are grounds 'C'

and 'D'.

The other matter which I draw to the Court's

attention briefly is that even if only a candidate

for the election or a person qualified to vote at

the election in the division can bring a petition,

it is open - there are other provisions of the Act

which would allow the qualifications of senators

and members to be tested, and I refer to Division 2

of Part XXII of the Act. In any event, it is open

to anyone within a division to bring such a

petition if that be the case, it is not a question

that any case is ever foreclosed from corning to

this Court. And clearly it is in the interests of

cases such as that of Mr Sykes and

Mr Pavlekovich-Srnith, evidence need to be

reasonably formal in the way one approaches the
questions of petitions. Elections are a costly and

expensive business and there is a desire for

continuity in government, and for .sitting members

to be sitting members for as long as they can.

Save for those points, Your Honour, there

again remains the question of the appropriate
disposal of this matter, and I would submit that it

would be appropriate to dismiss the petition in the

terms sought in the summons; alternatively to stay

it.	If Your Honour should be against me on that,
then at another date perhaps we could turn to the

question of service and of publication and other

like matters. Thank you, Your Honour.

HIS HONOUR:	Mr Borenstein.
MR BORENSTEIN:	Your Honour, I have only one brief comment

to make, and it is this, that I have given

Your Honour the reference to Nile v Wood, where the

allegation about insolvency against Mr Wood was

made in precisely the form as Mr Sykes makes it

here against Mr Cleary.

Might I just say, by way of reply, the very

vice against which the Act seeks to protect a

candidate is the vice which Mr Sykes sets up in his

petition. He makes an allegation, for example,

Sykes(S) 28/7/93

against Mr Cleary, of insolvency. He states no

basis upon which that conclusion is founded, he

states no grounds for the assertion that Mr Cleary

might be insolvent, and then he invites the Court,

under section 360, which of course the Court would not do, to allow him a wide-ranging investigation,

presumably, of Mr Cleary's personal finances, to

see whether he can find some foundation to support

the allegation which, at the moment, is without any

substance or foundation at all.

It is a vice which not only Mr Cleary is entitled to be protected against, but if

Your Honour allowed this course,·any member of

Parliament would be subject to a similar, dare I say it, wild allegation, which would expose their whole personal circumstances to public scrutiny, where the accuser is not required to say anything more than make the accusation. Section 355

protects people against that sort of course, and

the course which Mr Sykes asks Your Honour to adopt

in his favour would allow him that course which we

would say is most undesirable and inconsistent with

the process which the Act sets up.

HIS HONOUR:  Thank you. I will reserve my decision in this

matter and give it in due course.

MS KENNY:  Your Honour, might I raise one matter, and that

is, is it appropriate at this point to ask

Your Honour to certify for counsel? This matter

was in chambers.

HIS HONOUR:  I have not raised the question of costs and I

think that is appropriate to be raised when I have

reached a decision, but if a certificate is

necessary I will certify.	I do not know whether it
is or it is not.

MS KENNY:	I am uncertain whether it is.
HIS HONOUR: Well, I will certify and if that is otiose,

well, so be it.

MS KENNY:  Thank you very much, Your Honour.

HIS HONOUR:  Very well. Adjourn the Court sine die.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

Sykes(5) 35 28/7/93