Sykes v Cleary - [1992] HCATrans 241

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Commonwealth Electoral
Act 1918-1980

Office of the Registry

No M25 of 1992

Melbourne
IAN SYKES

Petitioner

and
PHILIP CLEARY

First Respondent

JOHN DELACRETAZ

Second Respondent

"BILL" KARDAMITSIS

Third Respondent

GERALDINE RAWSON

Fourth Respondent

AUSTRALIAN ELECTORAL COMMISSION

Sykes(4)

27/8/92

Fifth Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 27 AUGUST 1992, AT 9.54 AM

MR FAJGENBAUM: If the Court pleases. If I may be forgiven

a momentary capitulation, our contention is that at
the time Mr Cleary was chosen wh,ich was certainly
at the time that he was elected, he held the

relevant office of profit. He was chosen at the
poll by the electors. What happens after the poll,
in the scrutiny and in the declaration and in the
return of the writ, is simply the process by which
the popular choice at the poll is finally
determined and certified and returned to the
Speaker, the Governor-General or as the case may
be.
We say further than that, because the choice

is to be by the people and that that is a
deliberative process by the people, it is inherent
in section 44 that eligibility be held at the time
of nomination and we refer to some of the matters
discussed by Mr Justice Wright in Harford v Linskey
and we do not repeat them.
There are also additional reasons why we

contend that a candidate ought to be eligible at
nomination and they are found in considerations
arising out of the Electoral Act; for example,
arising under section 179, that if only one

candidate is nominated that candidate is thereby
duly elected. Also, the problem that arises
because of the provisions that are made for postal
and pre-poll voting in Parts XV and XVA of the Act,
provisions which enable electors to complete the
ballot papers before polling day.
At the adjournment yesterday afternoon I had completed our contention as to why an office of
profit under the Crown in right of the State was an
equal qualification with that of an office of
profit under the Crown in right of the
Commonwealth. And that all Crown servants ought to
be excluded from Parliament is, in our submission, a consequence of one of the fundamental principles
of responsible government which our Constitution

Sykes(4)

27/8/92

contains. The correlative of the principle that Ministers of the Crown ought to be in Parliament
and answerable for that which the public service
does, is that the public service itself remain
outside Parliament and remain, and be seen to
remain, as politically neutral. And these
propositions of the exclusion of civil servants
from political participation in Parliament as an
elemental principle of responsible government was
blindingly obvious, if I may say so, to the Select
Committee of…

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: [1992] HCATrans 241
Decision Date

CaseChat Overview and Summary

The High Court of Australia, sitting as the Court of Disputed Returns, considered the eligibility of Mr Cleary for election to Parliament. The dispute concerned whether Mr Cleary held an office of profit under the Crown at the time of his election, which would disqualify him from serving in Parliament under section 44 of the Constitution.

The central legal issue before the Court was the precise point in the electoral process at which a candidate must be eligible, specifically whether eligibility must be held at the time of nomination or at the time of election. The Court also had to determine whether holding an office of profit under a State Crown constituted an office of profit under the Crown for the purposes of section 44, and the underlying constitutional principle of responsible government that informed this exclusion.

The Court reasoned that the principle of responsible government requires the public service to remain politically neutral and outside of Parliament. This principle dictates that Crown servants should be excluded from Parliament to maintain the integrity and perceived impartiality of the public service. The Court considered historical precedent and reports, such as the 1941 House of Commons report on Offices or Places of Profit under the Crown, which underscored the fundamental nature of excluding civil servants from parliamentary membership. The Court's analysis focused on the constitutional implications of holding such an office at the time of election, rather than nomination, and the broad interpretation of "office of profit under the Crown" to encompass state offices.

Orders