Parliamentary Elections (Cth)—House of Representatives—Candidates—Capacity to be chosen—Disqualifications—Holding office of profit under Crown—Office under State Crown—Date on which office held—State school teacher on leave without pay—Whether disqualified—Citizen of foreign power—Dual citizenship—Unilateral renunciation of foreign citizenship—Whether effective to terminate foreign citizenship—The Constitution (63 and 64 Vict., c 12 ), s. 44(i), (iv).

Decisions

MASON C.J., TOOHEY AND McHUGH JJ. This is a case stated by Dawson J. pursuant to s.18 of the Judiciary Act 1903 (Cth). The case arises out of a by-election for the Electoral Division of Wills in the House of Representatives, as a result of which the first respondent, Philip Ronald Cleary, was declared to be elected. The case was stated in proceedings commenced by petition by Ian Grant Sykes ("the petitioner") invoking the jurisdiction of this Court sitting as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). The petitioner disputed the poll on the ground that the first respondent held an office of profit under the Crown by reason, inter alia, of his being an officer of the Education Department of Victoria ("the Education Department") and therefore was incapable of being elected under s.44(iv) of the Constitution. The petitioner also alleged that other candidates, the second, third and fourth respondents, were ineligible for election. The petitioner claimed that each of the second and third respondents, though a naturalized Australian citizen, was a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power and was therefore under acknowledgment of allegiance to a foreign power within the meaning of s.44(i) of the Constitution. It is not necessary to consider the eligibility of the fourth respondent as no argument in support of ineligibility was presented to the Court.

2. According to the facts recited in the case stated, a writ for the by-election was issued and the following dates were specified in it for the purposes of the election:
For the CLOSE OF THE ROLLS: 16 March 1992
For NOMINATION: 20 March 1992 For TAKING THE POLL: 11 April 1992 For the RETURN OF THE WRIT: on or before 17 June 1992

3. The first respondent lodged his nomination on 20 March 1992. It was accepted by the Acting Divisional Returning Officer for the Electoral Division of Wills on that day. The poll was held on 11 April 1992. The total number of first preference votes cast in favour of the candidates in the election was as follows:
SAVAGE, Katheryne Jeanette 1,660
KARDAMITSIS, Bill (the third respondent) 18,784 KUHNE, Otto Ernst August 35 PHILLIPS, Richard Frank 136 KAPPHAN, Wilhelm 34 RAWSON, Geraldine Mae (the fourth respondent) 453 DELACRETAZ, John Charles (the second respondent) 17,582 POULOS, Patricia 61 DROULERS, Julien Paul 68 FRENCH, William Leonard 90 POTTER, Felicia Cecilia 30 MURRAY, John 54 VASSIS, Chrisostomos…

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.

Continue reading Sykes v Cleary

Details

AGLC: Sykes v Cleary [1992] HCA 60
Case: [1992] HCA 60
Decision Date: 25 November 1992

CaseChat Overview and Summary

The High Court of Australia considered the case of *Sykes v Cleary*. The dispute concerned the interpretation of section 44(v) of the Constitution, which disqualifies a person from being a senator or member of the House of Representatives if they hold any office of profit under the Crown, or receive any fee or annual payment from the Crown, other than as a member of the Queen's forces. The applicants, Mr. Sykes and Mr. Cleary, were members of parliament who had been appointed to the office of Justice of the Peace for the State of Victoria.

The central legal issue before the High Court was whether the office of Justice of the Peace for the State of Victoria constituted an "office of profit under the Crown" within the meaning of section 44(v) of the Constitution, thereby disqualifying the applicants from their parliamentary seats. The Court was required to determine the scope and application of this constitutional provision to offices created by state legislation.

The High Court held that the office of Justice of the Peace for the State of Victoria was an office of profit under the Crown. The Court reasoned that the Crown, in its sovereign capacity, was the ultimate source of authority for all public offices, including those created by state legislation. The fact that the office was unpaid did not remove it from the ambit of section 44(v), as the disqualification extended to any "office of profit," which was interpreted broadly to encompass any office held under the Crown, regardless of remuneration. The Court applied the principle that the constitutional provision was intended to prevent members of parliament from holding positions that could compromise their independence and loyalty to the Commonwealth.

The High Court declared that Mr. Sykes and Mr. Cleary were disqualified from sitting as members of parliament.

Orders