Sykes v Cleary

,

• ~

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

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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

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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 the House of Commons in 1941, which
wrote the report "On Offices or Places of Profit
under the Crown", House of Commons paper No 120 of
1941. Volume 1 of the supplementary materials
provided by the Attorney-General, in this case,
consists of the whole of that report together with
the appendices.
At page xxxix of the report, the committee

members dealing with the public service, or the
civil service rather in that country, had no
difficulty in dealing with the question of
eligibil~ty of civil servants for parliamentary
election. In paragraph 51, immediately under the
heading of "The Civil Service" - this is on
page xxxix - the Committee said this:
The exclusion of civil servants from all

active or public participation in party
politics, and therefore from membership of the
House of Commons, is such a cardinal point in
the constitution that it is unnecessary to
give reasons for it in this Report. But some
attention should be given to the methods by
which they are at present disqualified from
membership of the House of Commons, and to the
exact definition of the class which should be
disqualified as civil servants.
The principle is perhaps spelt out concisely

in two passages which were included in our outline:
one is from the 16th edition of Erskine May and we
go back to the 16th .edition because that was the
last edition that was published before the
enactment of the House of Commons Disqualification
Act of 1957 which changed the law in England,
although did not change it so as to permit the participation of civil servants in Parliament.
Then the passage in paragraph 10 of our

outline, contained in Erskine May, the author was
obviously Sir Gilbert Campion:
Just as the presence in the House

of Commons of ministers responsible for all
the departments of state is a necessary
condition of parliamentary government, so it

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is an equally essential condition that the
permanent officials of such departments should
not be permitted to sit in the

House of Commons. No long experience of the
working of the parliamentary system of
government was required to show that

In the same paragraph of our outline we include an
departmental officers could not sit in the opinions of their chiefs, and that they could not actively support any political party without ceasing to be permanent.
extract from Maitland's Constitutional History
of England, and these are lectures delivered in
1887 and 1888 at a time before our Constitution
came into being. Professor Maitland, in dealing in his text with the eligibility of office holders for
membership for the House of Commons, tracing
English constitutional history from the Act of 1875 which excluded the holders of office of profit from Parliament, but in a curious kind of way permitted
those who were Ministers of State for the Crown to
be re-elected. Dealing with that constitutional
history, Professor Maitland said this:
The rough general outcome is this, that

the holders of high offices of State can sit
in the House but acceptance of such an office

vacates the seat. On the other hand the
holders of subordinate offices in the civil
service of the Crown are in general absolutely
disqualified from sitting in the House. Our
present system of government demands that the
heads of the great departments, those who
collectively form the ministry, shall be in
parliament and answer for the business of

their departments. I say our system demands
this; our law, of course does not demand it.

I interpolate that our Constitution, unlike

England, does demand it because of the provisions
of section 64.
On the other hand the subordinate officers of the civil service are excluded by law, and the
consequence is that we have a permanent civil
service, a body of civil servants unidentified
with any particular policy - were they in
parliament they might easily fall out with
their superiors, and we should have the whole
civil service changing with the ministry.

This elemental principle of responsible government
is nowhere else expressed in our Constitution other
than in section 44(iv). It is nowhere contained in

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any statute, for example, of the common - although
particular statutes of the Commonwealth might
recognize it. For example, section 47C of the unsuccessfully contest parliamentary elections a right of re-entry into the public service, they
having previously resigned, of course, for the
purpose of the election.
Nowhere else in the Public Service Act, for

example, is there a proposition to be found that
membership of the public service or the status of
being a public servant is incompatible with
parliamentary participation.

BRENNAN J: These considerations apply when the

subject-matter of the Parliament's jurisdiction
includes the subject-matter with which the public
servant might otherwise be concerned. Here we have
Federal Parliament and a State public servant.
Conscious of your reference to the concluding
paragraph of section 44, may it not be read as
indicating that the Queen's Ministers for a State
are themselves specially selected for reference out of a concern for caution rather than anything else? What does one say, for example, of the Ministers
for State of a territory or the public servants of
a territory?

MR FAJGENBAUM:

It may be that in respect of them some

implied limitation might have to be read into
section 122, so as to restrict the power of the
Parliament to permit territorial public servants to
participate in the Commonwealth Parliament.
But it is clear, in our respectful submission,

on the face of section 44 that it did not
discriminate between state and federal public
servants. The founding fathers knew that it did
not discriminate and that was why the amendment was

moved by Sir John Forrest, which included in the exempted class of the prohibition the Ministers of Crown for the State, and it is to be recalled that
at the time the Constitution was drafted the
principle that prevailed then was a principle of
the indivisibility of the Crown. As mystical as
that might be, it was an assumption upon which
section 44 was drawn, and the assumption upon which
the motion for the amendment was moved, almost

without argument, at the Melbourne convention. I
say almost without argument, because there were
only two speakers and both supported the motion.

DAWSON J:	I suppose the wording of paragraph (v) of section 44 supports your argument, where the
Commonwealth is to be singled out, it is done so
expressly.

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MR FAJGENBAUM: Yes, that is so. The pecuniary interest

provisions relate only to interest in contracts or
agreements with the public service of the
Commonwealth, I am indebted to Your Honour.
It appears from the case stated book at

page 21, at lines 20 to 22, that Mr Cleary was an
unattached officer at the time of his nomination
until his resignation, and it may be thought that
by virtue of being an unattached officer that he
held no office, on the view that you cannot have an
office of profit unless there is some vacant

office, or some office which can be filled. When
not filled, it is vacant awaiting to be filled.
Questions relating to the unattached officers in the public service have been considered by
Professor Campbell in a research paper which she prepared for the Coombe's Royal Commission into
Government Administration of which she was a member
in the 1970s. Relevant extracts from that paper
are found in volume 2 of the supplementary
materials provided by the Attorney. The extracts
begin at page 358 and relevant paragraphs in her
paper begin at paragraph 17 on page 361. The first
sentence is:
Judicial authority bearing on the
interpretation of the relevant provisions of
the Constitution is scanty, and such as there
is inconclusive. One source of difficulty is
the concept of an office of profit under the
Crown. There appears to be no reported
English judicial decisions on the features of
such offices - probably because such cases as
have arisen have been decided by the House of
Commons in exercise of its jurisdiction to
determine questions concerning the

qualification of members. Then Professor Campbell deals with a number of
Indian decision which I will not detain the Court with. Then, in paragraph 21 turns to English
authority which arises in the tax area. She refers to a proposition of Mr Justice Rowlatt in the Great
Western Railway Co v Baker where he described an
office of profit for the purposes of the English
legislation as:
a subsisting, permanent, substantive position,
which had an existence independent of the
person who filled it, which went on and was
filled in succession by successive holders.

Then, in the last sentence of paragraph 21,
Professor Campbell said this:

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The subject-matter and purposes of tax
legislation being so different from that of
section 44(iv) of the Australian Constitution, the relevance of Rowlatt J's definition of an
office to the question of what is an office
under the Crown is open to doubt.
22. Having regard to the reason why holders
of offices of profit under the Crown have been
disqualified from sitting and voting in
Parliament, it is difficult to understand why
the disqualification should attach only to the
occupants of positions which exist
independently of those who hold them.
Section 44(iv) of the Australian Constitution contains in a generalised form provisions of
British statutes dating back to the early
eighteenth century. The mischief against
which these statutes were directed was the use
of Crown patronage to win support of members

of the House of Commons. The Succession to
the Crown Acts of Settlement of 1705 and 1707
which were the principal Acts ..... spoke of
offices or places of profit, but in those
days, these terms were more commonly used than
expressions like the service of or under the
Crown. What needs to be remembered is that in
the eighteenth century, individuals who today
would be classified as public servants or
employees of the Crown were still regarded as
the holders of a species of proprietary right.
The grant of public offices frequently entailed the grant of an incorporeal
hereditament to which particular duties were
attached but which also carried with it the
right to charge and retain fees and the like
for the performance of those services.

If I can interrupt there and refer to a passage in book two of Blackstone's Commentaries which are set

out at page 215 of this volume, the Court will see
the mid-18th century view of offices where
Blackstone says, at page 215:
Offices, which are a right to exercise a

public or private employment, and the fees and
emoluments thereunto belonging, are also
incorporeal hereditaments: whether public, as
those of magistrates; or private, as of
bailiffs, receivers, and the like.

I come back to Professor Campbell; she continues:
If one accepts that the term 'office of profit
under the Crown' is a relic of a bygone age in
government administration, and that the
British legislation which provided the model

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for section 44(iv) of the Australian
Constitution was really aimed to exclude from
the House of Commons those in the service of
the Crown and who were entitled to profit from
that service, one cannot but avoid the
conclusion that the Supreme Court of India was
in error in supposing that an office is
something which exists and must exist
independently of the holder thereof.
If the Supreme Court's view were to be
accepted and applied in Australia, the results

would be quite absurd. To take an example:
Under the Public Service Act 1922-1973
(Commonwealth) there is a group of officers of
the Australian Public Service who though
officers within the meaning of section 7 of
the Act, are not holders of offices created
under section 29 of the Act. These are the
so-called 'unattached officers'. They,
together with the occupants of officers,
constitute the Australian Public Service.

I think that last sentence should be 'They,
together with the occupants of offices'; I think
the "r" is spurious in there. And then
Professor Campbell, in the next sentence, refers to
the provisions of the Public Service Act relating
to:
unattached officers -

and continues:
On the Indian Supreme Court's definition of an
office, unattached officers of the Australian
Public Service might well not be regarded as
holders of office under the Crown. Yet in all
material respects their position is no
different from that of public servants who

occupy offices in departments. It would be
quite ridiculous not to regard them as holders

of offices of profit under the Crown within the meaning and intent of section 44 of the
Constitution.

So we adopt that language which might - and if it

sounds offensive, we ask to be forgiven. It would
be quite absurd, ridiculous, not to regard a
teacher holding an unattached office, or being an
unattached office, within the service of the Crown
in right in the State of Victoria, as not holding
an office of profit under the Crown within the
meaning of section 44.
That the proposition made by

Professor Campbell in relation to tax cases, and
what Mr Justice Rowlatt said, was only relevant to

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tax cases and no significance to section 44 of our
Constitution. That proposition gained some comfort
a tax case which had to consider what an office was
from a speech of Lord Wilberforce in the House of
within the meaning of the English tax legislation,
and at page 860 Lord Wilberforce set out
Mr Justice Rowlett's definition, at about line E; a
definition which he says was:
bred into the bones of every practitioner in
income tax matters -

but what he then went on to say in the next
paragraph demonstrates, with respect, that the
English taxation conception of "office: was
peculiar to English taxation law; that English
taxation law had its own, as it were, private
lexicon. In the paragraph immediately below
line F:
Because this was the origin of the income

tax meaning of "office," I have doubts as to
the value, or indeed legitimacy, of now
resorting to a dictionary for a definition.
Of course it would be desirable in an ideal
world for expressions in tax legislation to
bear ordinary meanings, such as the citizen
could find out by consulting the Oxford
English Dictionary. But it is a fact that many words of ordinary meaning acquire a
signification coloured over the years by legal
construction in the technical context such
that return to the pure source of common

parlance is no longer possible. I think that
"office" is such a word.

In other words, the word "office" in English income
tax legislation is of no assistance to Australian
constitutional lawyers seeking to construe

section 44, because it has a legal construction in
a technical context confined to a very narrow
topic.
It is to be recalled that Mr Cleary was on

leave and leave without pay. We contend that those
two facts make no difference. What section 44(iv)
disqualifies is a person holding an office, not a
person discharging or performing the duties that
attach to an office. The grant and the taking of
leave do not in any way involve any removal or
dismissal from or surrender, forfeiture or other
determination of an office. A Justice of this
Court on leave or, indeed, on leave without pay remains a Justice of this Court. The nature of the
office held by the first respondent as one of

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profit did not alter because the leave was taken
without pay. It remained the same office.
There was a Queensland case, Bowman v Hood,

(1899) 9 QLJ 272. That was a case which concerned
Mr Hood, who was elected to the Queensland
Parliament whilst a member of the board of stock
commissioners in Queensland, a position which
attracted remuneration, but Mr Hood had made
arrangements with the board that he would accept no
fees whilst he stood for Parliament, and indeed
afterwards if he was elected. In fact no fees were

paid to him. It was held that this was of no
consequence. It was held to be an office of

profit. At the bottom of his judgment at page 278,
Mr Justice Real said this in the penultimate
paragraph:
Looking at the facts found, it seems to me, as
a question of law, that those facts constitute
the holding of an office of profit under the
Crown. Although he received no fees - no
remuneration in regard to his position on the
Stock Board - he was entitled to be paid a fee
for each attendance; and therefore, it is an
office of profit.

One of the cases that Mr Justice Real referred to
was Delane v Hillcoat, which is referred to in our
outline and I will not take the Court to now.
It may be thought that because Mr Hood had a

right to be paid but he asked not to be paid, the
case is a little different from that of Mr Cleary,
who had no right to be paid whilst he was on leave,
because the leave was on those conditions. The
propositions we say in answer to that are firstly
that the office remains the same - the nature of
the office was not changed - and to refer to the
principle which has been applied in England that is

set out in Erskine May at page 214, again the 16th
edition - and it is referred to in paragraph 13 -
the principle that has been adopted is that if
emoluments ever attach to the office, the fact that
emoluments are not received by the particular
holder is irrelevant.
An example of that was the Stewardship of the Chiltern Hundreds which the Court may recall was an
office of profit under the Crown which was taken by
members of the House of Commons who were anxious to
retire at a time when retirement was not possible
other than by taking a disqualifying office.
The Stewardship of the Chiltern Hundreds was

the available disqualifying office and no
remuneration ever had attached to that office for a

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20 MR FAJGENBAUM, QC

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long time. But nevertheless, for the purpose of
disqualification from the House of Commons,
acceptance of that stewardship constituted a
relevant disqualification. The reference to that
office is at pages xix to xx of the House of
Commons paper, which is, as I said earlier, in volume one of the Attorney-General's supplementary
papers.
If I can now turn to the second and third

respondents and the question that arises under
section 44(i) in respect of them. We contend that
they, at all times, were disqualified by virtue of
section 44 because each of them, although an
Australian citizen by naturalization, remained a
subject or citizen or entitled to the rights or
privileges of a subject or citizen of a foreign
power: Switzerland, in the case of the second
respondent; Greece, in the case of the third.
Accordingly, each of them was under

acknowledgement of allegiance to a foreign power.
"Allegiance" being described by Quick and Garran
as:
Allegiance is the lawful obedience which a
subject is to render to his sovereign •..•. A
subject is one who from his birth or oath,
owes lawful obedience or allegiance to his
sovereign.

DAWSON J:

How do they acknowledge it, having renounced

allegiance?

MR FAJGENBAUM: Because - I will come to that in a moment -

allegiance cannot be renounced except with the
participation of both the sovereign and the
sµbject. It is a reciprocal duty, a duty of
allegiance owed to the sovereign and the duty of a
sovereign to protect.

DAWSON J: But if you go through the form of renouncing,

even if it has no legal effect, it can hardly be
said that you acknowledge it.

MR FAJGENBAUM:	I am sorry, Your Honour.
DAWSON J:	If you go though the form of renouncing

allegiance, it nevertheless can hardly be said that
you acknowledge it.

MR FAJGENBAUM:

Because it was an acknowledgment as a result

of participation in the communities as citizens of
those communities from which they came. They had
acknowledged their allegiance by being subjects.
In other words, being a subject or a citizen of a

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foreign power carries with it an obligation of
allegiance but - - -

DAWSON J: But having renounced, they are not under that

acknowledgment any longer, are they?

MR FAJGENBAUM:

We contend it is a matter for the foreign

law but under our common law one could not renounce
without the consent of the sovereign. But be that
as it may, we need not be sidetracked by issues -
and perhaps they are a sidetrack - of allegiance
because the critical question is questions of
citizenship or being entitled to the rights or
privileges of a citizen.
The difference between citizen and subject as

Quick and Garran quickly identify is that "citizen"
is the term usually employed in republican
societies, "subject" is employed in monarchical
societies.
Section 44(i) could not be more broadly expressed than it is. Earlier drafts of the provision and other colonial provisions of a
similar kind which had been enacted before 1900
will demonstrate how broadly that draft could be.

GAUDRON J: Presumably it has to be the individual's

acknowledgement under section 44(i), does it?

MR FAJGENBAUM: Yes. Section 44(i), to begin with, is not

premised on any basis than an estranged citizen or
once a British subject cannot be disqualified by
it. It is apt to exclude Australian citizens as
well as those who have never been Australian
citizens. To begin with, the Constitution itself,
in sections 15 and 34, prescribed being a subject
of the Queen as a qualification for membership of
both Houses of Parliament, albeit in those sections
the provisions were expressed "until the Parliament

otherwise provides". But, nevertheless - - -

BRENNAN J:

Am I right in understanding your answer to

Justice Dawson to be that you are not relying on the first limb of section 44(i)?

MR FAJGENBAUM:	Our central point is the second limb, yes.
BRENNAN J:	"is a subject or a citizen or entitled to"?

MR FAJGENBAUM: "subject or citizen", yes.

MR BRENNAN:	Does that mean subject or citizen recognized as such, or entitled to those benefits, under the law
of Australia or under the law of some other
country?

Sykes(4)	22	27/8/92
MR FAJGENBAUM:	We say under both laws.	What we say is that

under our rules, conflicts rules, and as is
understood in the common law - I will come to this
in a moment, if I may - it is dealt with in
paragraph 16 of the outline.

DEANE J: Does that mean that if some foreign country

declared you to be an honourary citizen, with all
the rights and privileges of a subject or citizen, against your will that the Australian Constitution
disqualifies you from being chosen as a member of
the Parliament?

MR FAJGENBAUM: It may, but it is not a problem, with

respect, that arises in this case, because each of
the respondents was capable of renouncing his
original citizenship in accordance with the law of
that original citizenship.

DEANE J: But it is a problem with the reasoning of this

case.

MR FAJGENBAUM: Yes. It may be. Well we do not shy away

that that may be the consequence of it, yes. And
that that may be the consequence of it and if we
compare section - - -

DEANE J: So if Australia was at war with a country, that

country could effectively clear the Australian
Parliament by conferring honourary citizenship on
all the members of the Australian Parliament.

MR FAJGENBAUM:

It would have to be accepted, with respect.

I thought Your Honour's proposition involved a
grant and an acceptance by the Australian of the
honourary citizenship.

DEANE J:, Well except, that is not what it says, is it,

which means once you say that the words "entitled
to the rights or privileges of a subject of a

foreign power", must be qualified by something such
as acceptance of that entitlement. It sets us out
on the path of what is the appropriate
qualification.

MR FAJGENBAUM: It may, yes.

DEANE J:

I am not suggesting it is necessarily against you

in this case.

MR FAJGENBAUM: Yes. It is a problem that the section

creates, and that it would not be a problem if the
section was expressed in the form in which it left
the 1891 Convention in the draft bill, and the form
in which it remained until the bill came to
Melbourne in 1898. The bill, as it went through
Adelaide and Sydney in 1897, was in the 1891 form.

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We set that out shortly. And it would not have
been a problem if some of the other colonial
provisions had been adopted, for example, the
Western Australian enacted in the 1880s, I will
bring the Court to that in a moment.

DEANE J:

But once one accepts that the plain words of 44(i)

must be read down by some qualification to avoid
absurdity of the type I put to you, one has then
embarked on a search of the appropriate
qualification.

MR FAJGENBAUM: Yes. One may find it in criteria of reason;

one may find it in criteria that are understood by
common lawyers that one is a citizen by virtue of
one's place of birth or by one's relationship by
blood, as it were, being a child of a citizen or
grandchild of a citizen.

DEANE J:

The point is that the words on which you rely do

not require you to be a subject or a citizen, they
only require entitlement, not acceptance of
entitlement.

MR FAJGENBAUM:

We do not have to go that far in this case

because each of Mr Delacretaz and Mr Kardamitsis,
the second and third respondents, were in fact
citizens and because they were citizens they were
entitled. There was no contrast in their
respective cases.

DAWSON J: They did not know they were citizens.

MR FAJGENBAUM: That is true, but that, with respect, is a

problem - ignorance of the law.

DAWSON J: Except that that law is a fact.

MR FAJGENBAUM: Yes, it is a fact, of course, but it is a

problem that arises. What are the consequences
when somebody does something in ignorance of the

relevant law?

BRENNAN J:

It must be a question that is referred to our

law in the first instance.

MR FAJGENBAUM:

In the first instance what our law says, and

is to be found in Oppenheimer v Cattermole,
(1976) AC 249. That was a question arising in
England about a German refugee who had been
deprived of his German nationality by the laws of
Nazi Germany and had it restored by the laws of
postwar democratic western Germany, and there was a
tax question arising under a taxed treaty as to
what country Mr Oppenheimer was a citizen of at the
relevant time. But the relevant passages, to be
found in the speeches of Lord Hailsham and

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Lord Cross who delivered the two major judgments in
the House of Lords, demonstrate, with respect, two
propositions. One is that at common law, a
question of foreign nationality, a force to be
determined according to the municipal law of the
foreign state concerned, and the dual nationality
was always known to the English law, and that the
coexistence of British and enemy nationality was
always possible under English law.
At page 263 to page 264 at the paragraph beginning at the bottom of the page,
Lord Wilberforce criticizes the reasoning of
Lord Denning in the Court of Appeal below, saying:
I do not find this reasoning convincing. It
proceeds upon the basis, which is contrary to
Stoeck v Public Trustee, that English law can
decide who is and who is not a German
national, and appears to assume that the
coexistence of British and enemy alien
nationality is an impossibility. But this is
not so.

Lord Cross, with whom all the other law lords
agreed in the relevant respects, said this at
pages 278H:
Our law is, of course, familiar with the
concept of dual nationality - indeed the
relevant part of the tax conventions proceeds
on the footing that a man may be at one and
the same time a British subject and a German
national - and the English law which is to be
applied in deciding whether or not
Mr Oppenheimer was a German national at the
relevant time is not simply our municipal law
but includes the rule which refers the
question whether a man is a German national to
the municipal law of Germany. But the fact
that our law recognises that a man as well as

being a British subject is also a German
national does not in the least affect either
his rights or his duties as a British subject.

GAUDRON J:

Is that true of Australia in circumstances where

citizenship is obtained by naturalization?

MR FAJGENBAUM:	We say yes, because first -
GAUDRON J:	I wonder why there is this need to renounce

earlier citizenship.

MR FAJGENBAUM:

We say for two reasons.

We say firstly that

that law, the proposition that it is a matter for
the municipal law of the foreign countries
concerned, has been accepted by Judges of this

Sykes(4)

27/8/92

Court, for example, R v Burgess Ex parte Henry,
(1936) 55 CLR 608. Both Sir John Latham at
page 649 and Mr Justice Dixon at page 673 referred
and accepted the proposition that the question of
foreign nationality falls to be determined
according to the municipal law of the State
concerned.
That is the first step in answer to

Your Honour Justice Gaudron. The second step is
that the renunciation under Australian law was of
no consequence so far as Australian law's
recognition of the foreign nationalities concerned.
It is to be remembered that each of the second and third respondents could have renounced his foreign citizenship under the foreign law. Neither did so,
albeit out of ignorance.

DAWSON J: But the renunciation is a renunciation of

allegiance, is it not?

MR FAJGENBAUM:	Yes, not of citizenship.
DAWSON J:	How does this become relevant? Only if the Court

were to consider ordering - in the event that the
petitioner succeeds - - -

MR FAJGENBAUM:

Only if Mr Cleary were disqualified.

The

ineligibility of the second and third respondents
to be candidates does not affect the validity of

the Election itself. If Mr Cleary is otherwise not
disqualified, his election is good. But if
Mr Cleary otherwise is disqualified for the reasons
which we have advanced, then the Court has a
discretion to order a special count: in other
words, to ask the electoral officers to recount the
votes ignoring any preference expressed in favour
of Mr Cleary.

DAWSON J:

Is anyone in that event going to ask for a

recount?

MR FAJGENBAUM:

Yes. My friend, Mr Bell, asked for that on

behalf of the third respondent.

DEANE J: You are using "renouncing" in a special sense

here, are you, in the sense of renouncing in
accordance with the law of the other country?

MR FAJGENBAUM: Yes, and a renunciation that is prescribed

by our law as having, for our own domestic
purposes, the effect of producing the result that
the renouncing formally dual citizen is now solely
an Australian citizen.

DEANE J: That would carry with it, would it not, the

proposition that this Court should recognize an

Sykes(4)

27/8/92

unspoken qualification of the oath of allegiance
which the two candidates concerned had taken.

MR FAJGENBAUM:

No.

DEANE J: Why not? I mean, why would not this Court treat

. the oath of allegiance as completely unqualified
and as excluding competing allegiance to any other
country?

MR FAJGENBAUM: Well one has to ask, what is the oath of

allegiance; what is the legal consequence attached
to it? At the time the second respondent, took an oath of allegiance and he signed a
declaration of renunciation which had no status in
Australian law at that time. It was an administrative requirement; it was not prescribed
by legislation or statutory rule.
Now, the renunciation itself, therefore, by

Australian law had no legal consequences attached
to it. The oath of allegiance by Australian law,

of its own, could have simply meant that upon its
taking, Mr Delacretaz was now recognized as an
Australian citizen. But the common law understood
dual allegiances, dual nationalities, so the oath
of allegiance by itself - - -

DEANE J: Well that is not the question; the question is

whether our Constitution, which set out the oath of
allegiance in a schedule, if my recollection is
correct, in a context where, on your argument it
did not accept dual citizenship or nationality,
permits the interpretation if the oath of
allegiance does not involve renunciation of
citizenship or being subject to the government of
any other foreign country?

MR FAJGENBAUM:

But the oath of allegiance, with respect,

that was prescribed in the Constitution, was not
one that - it was a prescribed oath of allegiance,
but it was not prescribed as something necessary
for naturalization; it was an oath of allegiance
which was expected of Australian citizens holding
offices under the Constitution.

DEANE J: But our question is, what is the significance -

when I say our question, what I am exploring with
you is what is the significance of an oath of
allegiance in the terms prescribed by the
Constitution for the purposes of the Constitution?
Does it involve no more than saying Australia
becomes one of my collection of nationalities or
does it involve the renunciation of any loyalty and
obligation to any other country?

Sykes(4)

27/8/92

MR FAJGENBAUM:

The oath of allegiance, we would say, simply

involves a declaration of loyalty to this Crown,
but nothing in relation to the other Crown, because
there are many circumstances in which one takes an
oath of allegiance; the same oath of allegiance in
similar terms, for example, was taken by
Mr Kardamitsis when he was sworn in as a Coburg
municipal councilor in Melbourne; when he became a
Justice of the Peace. And we all swore a similar

oath when we were admitted to practice. But these
are declarations of our relationship with our
government, which do not carry with them, for
Australian law purposes, any declaration of a relationship with a foreign government that is
therefore to be recognized by Australian law.

DEANE J: Well, I follow you say that; you do not

necessarily convince me that it is so by simply
saying it.

MR FAJGENBAUM: If that is so, then Australian law, if

Your Honour remains unconvinced, it would be a
proposition then if the oath of allegiance has the
kind of consequence for Australian law that is now being considered, one of the consequences would be
that Australian law does not recognize dual
citizenship.

DEANE J: That may well be the consequence of your

constitutional argument, may it not?

MR FAJGENBAUM: Yes, but Australia does recognize dual

citizenship, international law recognizes ·dual
citizenship, I will come to that shortly, it is a
phenomenon that has always been known and
international law resolves the difficulty by
various treaties, by decisions of international
tribunals in the International Court of Justice and
we have statutory schemes that deal with questions

of dual nationality, but we are now concerned with the Constitution.

DEANE J:

I have heard the way you put it and I do not want

to take time, but the point I was trying to raise
with you is, it does not seem to me that references
to the United Kingdom cases and to other places
necessarily says much of assistance in determining
the effect of an oath of allegiance for the
purposes of section 44 of our Constitution when
your very argument on section 44 consists of an
assertion that our Constitution refuses to accept
dual citizenship for one of the very important

purposes of government. We are faced with a very
particular question; that is, for the purposes of

section 44(i), does one treat an oath of allegiance
as honestly taken as not, as it were, answering the
requirements of 44(i)?

Sykes(4)

28 MR FAJGENBAUM, QC

27/8/92

MR FAJGENBAUM:

We say the oath of allegiance can honestly

make that man into an Australian citizen. But while
dual citizenship exists, there is nothing in
principle, in my respectful submission, impossible
about a proposition of a man having dual
citizenships, dual loyalties, and it may well be a
consequence for our Constitution that the man or
woman who has those kinds of divided or dual
loyalties, ought not to participate in Parliament.

DEANE J:

I follow that, but what I was really taking up

with you was, and taking a lot further, was
something said by Justice Dawson in one sense, and
that is, is not compliance with section 44(i)
ultimately a matter of fact and if someone has
taken an oath of allegiance, has done nothing to
assert any entitlement subsequently in any other
country and has believed that his sole ties for
relevant purposes were with this country, why is
not that, as a matter of fact, an answer to the
requirements of section 44(i), regardless of
whether one can find that under some law he did not
know about, he is landed with being a citizen of
another country.

MR FAJGENBAUM:	The first answer that I wish to give -
DEANE J:	I am putting it as an argument rather than a

question. Can you put a big question mark at the
end of it.

MR FAJGENBAUM:

I understand, Your Honour. The first answer

to the question would be that that is not the
language of section 44 as it now stands. Contrast
the predecessor of section 44 as it stood at the
end of the 1891 convention and as it remained
unaltered until 1898 and it is set out in
paragraph 25 of our outline:
"Any person -

who has taken an oath or made a declaration or
acknowledgment of allegiance, obedience or
adherence to a foreign power, or has done any
act whereby he has become a subject or a
citizen, or entitled to the rights or
privileges of a subject or a citizen of a

foreign power •.• shall be incapable - and so forth. The contrast is, as it were, the
passive case of a person being a subject or citizen·
of a foreign power, and the previous draft which
disqualify persons who had done positive things,
positive acts to acquire a foreign nationality and
whilst on that, might I take the Court to some of
the earlier colonial provisions that are set out in
volume 2 of the supplementary materials provided by
the Attorney-General, at pages 179 and following,

Sykes(4)

29 MR FAJGENBAUM, QC

27/8/92

and these provisions as the Attorney sets out at
pages 181 to 182 were well known to the delegates
at the constitutional conventions.
The Tasmanian form which in substance is

similar to New South Wales, Victoria, South
Australia and Queensland was:
If any Legislative Counselor ... shall

take any oath or make any declaration or act of acknowledgment of allegiance or adherence
to any Foreign Prince or Power or shall do
concur in or adopt any act whereby he may
become a subject or citizen of any
Foreign State or Power, ••• his seat in such
Council shall thereby become vacant.

The Canadian provision which is set out at the top of page 181 was:
The Place of a Senator shall become vacant in
any of the following Cases:
(2) If he takes an Oath or makes a Declaration
or Acknowledgement of Allegiance, Obedience,
or Adherence to a Foreign Power, or does an
Act whereby he becomes a Subject or Citizen,
or entitled to the Rights or Privileges of a
Subject or Citizen, of a Foreign Power.

The final illustrative provision to take the Court to is the Western Australian one set out at
page 181; section 29 of its Constitution Act of
1889:
If any member of the Legislative Council or
Legislative Assembly, after his nomination or election -
(3) Takes any oath or makes any declaration
or acknowledgment of allegiance, obedience, or

adherence to any foreign Prince or Power, or
does, concurs in, or adopts any act whereby he
may become a subject or citizen of any foreign
State or Power -

et cetera, is to be disqualified.
The Western Australian Act is of a kind which

would not, in the way we put our case, have
prevented the second or third respondents being

chosen for the Federal Parliament, if that had been
the federal law because each was entitled, as an
Australian citizen, and has not done any act
thereafter by which he becomes a subject or citizen
of a foreign power.

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30 MR FAJGENBAUM, QC

27/8/92

What the Western Australian provision

contemplates is disqualifying conduct by an
Australian citizen, conduct that succeeds
Australian citizenship, ignoring, perhaps whatever
happened beforehand. There is a very strong
contrast between those provisions and the
provisions which we find in our Constitution.
It is for that reason, we contend, that one

cannot imagine a more widely, more broadly drafted
exclusionary provision than that which is to be
found in section 44(i), no matter how unfairly it
may otherwise be thought to operate in the case of
dual nationals.
Australian law, similarly with Swiss and Greek

law, permits its citizens to renounce their
Australian citizenship by a declaration in a
prescribed form; section 18(l)(a) of the 1948

Australian Citizenship Act permits that. It has to
be done by declaration in a prescribed form. The declaration of renunciation made by the
second respondent at the time of his naturalization
was of no legal effect, according to Australian or
Swiss law, and the inclusion of the words of
renunciation in the oath or the affirmation in the
form in which it stood at the time that the third
respondent became naturalized was also, we contend,
devoid of consequential legal effect in relation to
his previous Greek citizenship.
The statutory inclusion of those words of renunciation did not constitute a legislative
prescription that an alien upon naturalization was,
for the purposes of Australian law, thereby
deprived of his or her previous citizenship. As a
matter of statutory interpretation the inclusion of
the words of renunciation in the oath cannot be so
read and, indeed, they were not intended to have

that effect.
When one looks at the second reading speech

which is set out in paragraph 21(a) or our outline,
the Minister, after referring to what he described
as the present practice of renunciation, said:
we have decided that the essential words of
renunciation should now be incorporated as
part of the oath of allegiance to the Queen.
the change wilL simplify and shorten the
naturalisation ceremony and enhance its
dignity, and will also, I believe, eliminate
the emotional disturbance felt by candidates
due to their natural and rightful love of
their homeland.

Sykes(4)

31 MR FAJGENBAUM, QC

27/8/92

There is no suggestion, with respect, that the
inclusion of the words of renunciation in the oath
or the affirmation were to have any consequential
legal effect.
If Australian statutes are to be construed as

consistently as possible with general principles of
international law, one would not readily find the
inclusion of the words of renunciation in the oath
or the affirmation as having this effect of
depriving an Australian naturalized citizen of a
foreign citizenship for the purposes of Australian
law because the general principle of international
law was that an individual's nationality was a
subject for the municipal law of a State concerned.
That is set out in a passage from Oppenheim
(8th ed), which we refer to in paragraph 21(b) of
our outline and the similar propositions are
referred to in Brownlie's Principles of Public
International Law (4th ed), which was only
published a year or two ago. But perhaps more
importantly than that is - - -

BRENNAN J: Is there anything which indicates that

nationality citizenship, which is conferred
involuntarily upon a person, must be recognized
either by international law or by municipal law as
the nationality of that person?

MR FAJGENBAUM:

No, because the international law principle

is hedged with caveats and, for example, it is a
general principle not an always prevailing
principle, and Article I of the 1938 Hague
Convention, which is set out in our outline, and
the whole of the convention is set out at pages 60
to .68 of the second volume of the Attorney's book
of documents, and Australia has been bound by this convention since February 1938. We ratified it on
10 November 1937 and it came into force or it
became binding, effective 90 days later, according

to its articles.
But in Article I which appears at the bottom
of page 62:
It is for each State to determine under

its own law who are its nationals. This law
shall be recognised by other States in so far
as it is consistent with international
conventions, international custom, and the
principles of law generally recognised with
regard to nationality.
Article 2:
Any question as to whether a person possesses the nationality of a particular

Sykes(4)

27/8/92

State shall be determined in accordance with
the law of that State.
Article 3:
Subject to the provisions of the present

Convention, a person having two or more
nationalities may be regarded as its national
by each of the States whose nationality he
possesses.

So, as a general principle, States are to recognize
foreign nationalities conferred by foreign laws.
But the hedgings, as it were, for example, in
Article I, so far as it is consistent with general principle and so forth, are perhaps designed to
cope with the circumstance that Your Honour
Mr Justice Brennan, has just referred to and involuntarily conferred foreign nationality.

GAUDRON J:

Is it implicit in your argument that the only

way you can renounce Greek and Swiss citizenship is
by renunciation?

MR FAJGENBAUM:

Under Greek and Swiss law, yes.

GAUDRON J: And that is established, is it?

MR FAJGENBAUM: Yes, it is in the - - -

GAUDRON J: And that is the only way, because I mean I would

have thought that there might be - I mean, there
may be other ways, do you think, or is it simply
by, for example, in some cases citizenship is lost
simply by taking an oath of allegiance to a foreign
power - - -

MR FAJGENBAUM:

No, that is not the case here.

GAUDRON J: - - - or by doing something inconsistent with

that citizenship.

MR FAJGENBAUM:

We have a provision such as that here,

serving in a foreign army in time of war deprives us of our citizenship. But in the stated case at
paragraph 26 on page 27 the foreign law, as it
were, as stated is consistent with the proposition
that the only way Mr Delacretaz could have deprived
himself of Swiss citizenship was by release upon
demand.

GAUDRON J:

It suggests it but it does not state it.

MR FAJGENBAUM:

In any event, at line 10, the last sentence

of paragraph 26 is, after the statement that he has
not sought to be released:

Sykes(4)

27/8/92

and was at all material times a citizen of
Switzerland. As a result the Second
Respondent is and was at all material times
entitled to obtain a Swiss passport, to enter
Switzerland without any restriction and to
reside in Switzerland.

BRENNAN J: And to be liable to compulsory military service

in Switzerland.

MR FAJGENBAUM:

May well be, yes.

BRENNAN J: Most Swiss citizens are, I think.

MR FAJGENBAUM:

I do not think that would be true in

Mr Delacretaz's case. He was born almost 70 years
ago.

BRENNAN J: That may or may not be so, but it does have

implications for your observation as to what
happens to Australian citizens if there is a
compulsory service insisted on by a duplicate
nationality to serve in their army and the other
nation is entitled under Article 3 to do so.

MR FAJGENBAUM: Australian law is fair in that regard.

Section 19 of the 1948 Act merely says:

An Australian citizen who, under the law of a
country other than Australia, is a national or
citizen of that country and serves in the
armed forces of a country at war with
Australia shall, upon commencing so to serve,
cease to be an Australian citizen.

BRENNAN J:

I am sure Switzerland is not at war with

Australia.

MR FAJGENBAUM:

We are not at war.

A similar proposition,

coming back to Justice Gaudron's question, is true of the third respondent, Mr Kardamitsis. That is set out in paragraph 33, where the facts relating
to the renunciation of Greek nationality are set
out:
Under the law of Greece a Greek national will have his Greek nationality discharged:
(a) if he has acquired the nationality of
another country with the permission of the
appropriate Greek Minister; or
(b) if he has acquired the nationality of
another country and later obtains the approval
of the appropriate Greek Minister to the
discharge of his Greek nationality.

Sykes(4)

27/8/92

Then the discharge becomes effective in the latter
case from the date of approval. Then in the next
sentence, because:
The Third Respondent has not sought -

approval, he -
is and was at all material times a Greek
national ..... entitled to apply for a Greek
passport ..... to enter Greece and stay in
Greece without time restrictions and without
permission.

That is if he goes in with a Gr~ek passport to
which he is entitled.
Our point in referring to the international

law of principles in the Hague Convention was
merely for the purpose of saying that the adoption
in 1948 of our own naturalization laws, our own
citizenship laws, providing for citizenship by
naturalization, unless expressly so spelt out in
the legislation, is not to be taken to have the
effect of saying that under our Australian law the
adoption of Australian citizenship by
naturalization means that one is no longer subject
to any foreign citizenship, because international
law required us to recognize the dual citizenship
in the circumstances, for example, discussed in the
articles of the Hague Convention.
But of course, there may be some problem as to

whether statutory law changing Australian
citizenship laws and prescribing oaths of
allegiance in connection with naturalization
ceremonies and so forth, prescribing declarations
and renunciations or words of renunciation in an
oath of allegiance can have any effect in altering
what would otherwise be the meaning of section 44.

And so far as the prescription of an oath of allegiance with words of renunciation are
concerned, it is to be remembered that not every
Australian citizen by naturalization is required to take the oath of allegiance; an infant child of
naturalized parents becomes naturalized without an oath of allegiance; an adult who is a child of one or more Australian parents can become naturalized
without taking the oath of allegiance. That is spelt out in section lS(i)(b) of the Australian
Citizenship Act.

DEANE J: What, on your argument, would be the position if

Greek and Swiss law did not allow renunciation of
citizenship at all?

Sykes(4)

27/8/92

MR FAJGENBAUM:

I would have to say that that is the kind of

foreign law that would not be recognized by
Australian domestic law in 1900, because the
principles of international law which prevailed at
that time were permitting voluntary assumptions and
voluntary renunciations of citizenship.

DEANE J: Would you alternatively say that section 44(i)

would be satisfied if the person concerned has dorie
all that could be reasonably expected of him to sever his obligations as a citizen of a foreign
country?

MR FAJGENBAUM:

Yes, I would accept that, yes.

DEANE J: And, where there is a renunciation procedure under

the law of the foreign country for doing that, it
is reasonably expected of him that he will do it?

MR FAJGENBAUM:	Yes, and there are certain questions about, for example, in international law generally the
question has arisen whether British law - I know
there is some doubt as to its relevance - would
permit a foreign - in this case, deprivation of
nationality, on a cruel and inhumane basis would
recognize it, and there is some discussion of that
in some of the speeches in the House of Lords, as to whether British law would recognize Nazi
deprivations of German nationality, and confiscations of property. So one is entitled and
one ought to read section 44(i) consistently with prevailing rules and principles of international
law.

So far as the words of renunciation are

concerned in the oath, in 1986 they were removed
from the oath of allegiance by Act No 70 of 1986,
and curiously, and we set this out in paragraph 22,
the Minister£ for Immigration at the time, in his
second reading speech, explained the removal of the
words of renunciation in words that are reminiscent

of the explanation for their introduction:
"Renunciation is ambiguous and unnecessary.
Some candidates think that it requires them to
renounce not only other allegiances but also
their cultural background and all other ties
with their country of origin. In many cases
the renunciation does not affect the previous
nationality or citizenship of candidates
because the nationality laws of many countries
permit their nationals to have more than one
citizenship."
Now, although I have said that international
law principles play some part in the construction
of section 44, for example, to cope with the case

Sykes(4)

27/8/92

of the involuntary foreign citizen or the citizen
who cannot renounce citizenship at birth, I do not
mean to say that international law principles ought
to be applied in this case, or cases that arise
under section 44, for the purpose of determining
which of two countries of which a person may be a
citizen has a greater right to protecting in
international forums.
There have been a number of cases in international law, and they are included in the
second volume of the Attorney-General's book of
documents, and no doubt the Solicitor will refer to
them when he comes to his submission, but there are
propositions in international law, for example,
that in cases arising under treaty, for example,
after the war the Merge case, the American Italian
peace treaty, where persons who were citizens of
both countries were entitled to make claims for
compensation in respect of occurrences in Italy.
The question arose there was, in the case of dual
nationals, was an American citizen to be entitled
to make a claim against Italy in circumstances
where the person was an Italian citizen as well.
The question to be resolved upon was what was the
effective nationality of the claimant; what was the country with which the claimant had the most substantial connection.
There is an Anglo-Iranian case that raises a

similar matter in the case of dual nationals,
American citizens making claims against Iran in the
1970s. In the case of an American citizen who also
had to be an Iranian citizen, was America entitled
to make the claim, again it depended on which was
the country of effective nationality. And there is
the Nottebohm case, that will no doubt be referred
to again, which concerned whether Liechtenstein had
a right to assert a protective claim over one of
its citizens in the International Court of Justice

against Guatemala, Mr Nottebohm having become, as
appears from the report, a Liechtenstein citizen of

convenience, and the international court held, no,
because for the purposes of the protective
jurisdiction which Liechtenstein might otherwise
have, although he is a Liechtenstein national, and
we recognize that nationality, we do not recognize
it for the purpose of asserting this claim against
Guatemala.
Now, these cases are conflicts cases, with

respect, where countries are competing with each
other in asserting rights in respect of the one
individual which are different cases, because we
are concerned with a purely local Australian

question with no international consequences. We
are not concerned with a question of whether

Sykes(4)

27/8/92

Australia has a right to protect either the respondents in some international tribunal, but the
simple question is whether, for purposes solely of
Australian law, each of the second and third
respondents was eligible to be chosen and to sit in
Parliament.
There is a lot of danger also in the international law principles, if we adopt them, in
resolving conflicts of dual nationality because
they are so vague, in a sense, the principles are
clear, effective nationality, but they can create

substantial uncertainty. How at a time of
nomination, or a time before a poll, is a candidate
to determine, "Now, which country am I an effective
national", and it may not be so easy in some cases
as it may be in others.
It may be that in this case the solution to

these problems in an international context might be
easy but the principle that has to be determined in
this case has to prevail in all cases and the
principle which looks to a solution of this kind of
problem by reference to real and effective
nationality is one which will provoke substantial
uncertainty. It is for those reasons that we
contend that the second and third respondents were
not eligible to be chosen to be elected and to sit.
If that is the case, as I said in opening

yesterday, we say the whole Election ought to be declared void. If the Court looks at page 16 of
the case stated book, the Court will see that
63,801 valid votes were cast at the Election. Of
those votes, the third respondent got a little over
18,500 - that is Mr Kardamitsis; the second
respondent, who is beside line 10, got a little
over 17,500; and the first respondent, Mr Cleary,
got 21,391. The three received a total of 57,757
first preference votes out of the total of 63,801
votes cast.

If all three candidates are to be excluded

from the special count, the net result would be
that the winning candidate would be one, having
regard to the figure set out on page 16, who did
not receive any more than 1660 first preference
votes at the Election.
The Court's jurisdiction under section 360 of the Electoral Act is to do that which is just and,
in our respectful submission, it would not be just
to order a special count in this case which might

have the result that we contend for. And in the
event that we are correct about Mr Cleary and wrong
about the second and third respondents, it may also
be that there ought to be a fresh election rather

Sykes(4)

38 MR FAJGENBAUM, QC

27/8/92

than a special count. But for that I will not
repeat what Mr Rose will be submitting on behalf of
the Australian Electoral Office. Unless there are
any further matters, they are the submissions
for - - -

GAUDRON J: What is it that makes it clear that the

petitioner is a subject or eligible to be a subject
of a foreign power? I presume it is the
Citizenship Act in some position. I realize he is
a British subject and has not taken out Australian
citizenship but what is it in the Citizenship Act
makes it, because in times past that seems to have
been quite sufficient to enable you to do anything
you liked, including to vote and stand for
elections and all sorts of things, because we were
all British subjects until 1948 and I take it that
the argument does not go so far as to say we did
not have a validly elected Parliament at any stage
between 1901 and 1948?

MR FAJGENBAUM:

He would have been eligible, I think, in

1986.

DAWSON J: Under section 93, is it not, of the Electoral

Act.

MR FAJGENBAUM:

I am indebted to, Your Honour. Section 163

of the Electoral Act prescribes the qualification
for nomination of Australian citizenships.
the meaning of the citizenship law before
Section 93, however, permits those who are not within
January 1984, to vote. So Mr Sykes, the petitioner
in the event, was entitled to vote, because he was
a British subject within the meaning of Australian
citizenship law immediately before 26 January 1984,
but he was not entitled to be chosen because he was
not an Australian.citizen. Does that answer Your
Honour's question?·

GAUDRON J: Yes, thank you.

MR FAJGENBAUM: If the Court pleases.

MASON CJ:

Yes, thank you, Mr Fajgenbaum.

Mr Charles.

DEANE J: Before you sit down, what Justice Gaudron asked

you, the assumption of your answer is that the
United Kingdom is not now a foreign country for the
purposes of section 44(i), if you have somebody who
is merely a citizen of the United Kingdom?

MR FAJGENBAUM:

It may be that it has become a foreign power

for the purpose of section - - -

Sykes(4)

27/8/92

DEANE J: Well, there have been some things in some

judgments of this Court dealing with the external
affairs power - - -

MR FAJGENBAUM: Nolan's case, for example, is one that comes

immediately to mind, as to whether a British
subject, no longer an Australian citizen, can be
treated as an alien, yes.

DEANE J: Of course, that argument is complicated, I

suppose, by section 34 of the Constitution and the
form of the oath of allegiance which, in the
schedule, is expressed to be by reference to the
monarch of the United Kingdom. But I was not
suggesting you embark on it; it was just something
that struck me should not just be assumed.

MR FAJGENBAUM:

No, it is a problem as to whether Britain or

the United Kingdom has become a foreign power for
the purposes of section 44, and it may be the
answer does lie in section 34, that it is and never
will be and that may be, on the other hand, that
the description in the schedule to the Constitution
of the sovereign as being the king or queen of the
United Kingdom, is merely words of description, not merely words - - -

DEANE J: Except it corresponds with covering clause 2.

MR FAJGENBAUM: Yes, but that is perhaps for another day.

If the Court pleases.

MASON CJ: Yes, thank you. Mr Charles.

MR CHARLES:

If the Court pleases. On behalf of Mr Cleary,

Your Honours, I make no submission as to the
qualifications of any other candidate in the
Election. In relation to Mr Cleary, the
submissions I make, there are six in number.

DAWSON J:

If you are unsuccessful in your main submissions

you would be asking for the whole Election be
declared void?

MR CHARLES:

A fresh Election, Your Honour.

And as to that,

that is my sixth submission, I propose to do no
more than to adopt the submissions of the Electoral
Commission, which Mr Rose will be making.
Your Honours, the other five submissions we

make are, firstly, that a teacher in the Victorian
State Teaching Service is not the holder of an
office of profit under the Crown within
section 44(iv). Incidentally, Your Honours, we
make the submission that Mr Cleary is not a public

servant. I will take the Court to legislation
which will make that apparent.

Sykes(4)

27/8/92

Secondly, I submit that Mr Cleary, as an

unattached officer on leave, holds no relevant
office at all. Thirdly, nor was Mr Cleary's
position an office of profit. Fourthly, nor was
his position relevantly under the Crown; and
fifthly, in any event, it is my submission that at
the time he was chosen, that occurred not earlier
than the declaration of the poll, at which time he

had resigned. I apologize, Your Honours, if I slip

occasionally into the royal "we"; we are of course
dealing with positions under the Crown.
If I can take the Court shortly to the facts

in the case stated in relation to Mr Cleary's
position, Your Honours will find them in particular
in relation to Mr Cleary at pages 19 to 22 and at

page 25 of the case. Starting at page 19 - and I
shall not go through them in any detail - we accept
of course that Mr Cleary was employed in the
education service by Her Majesty, which is clear
from section 3 of the Teaching Service Act.
Mr Cleary, as appears from the case at page 21, in
particular at lines 10 to 15, was employed as a
permanent teacher but not attached or appointed to
any particular position.
Next, Your Honours, after an extremely short

two-day period referred to in paragraph 21 on
page 21, in which he performed the duties of a
teacher at Hoppers Crossing, thereafter Mr Cleary
had no entitlement to any designated position.
That appears, Your Honours, at the middle of page 21. Next, paragraph 22 on that page:
On 30 January 1992 the First Respondent
commenced leave without pay for the remainder
of the school year, that is, until

24 January 1993. Your Honours will note that the period of leave
without pay is not counted as service for any

purpose.
It is significant, Your Honours, in relation

to the service of leave without pay, if members of
the Court would be good enough to go to the second
volume of the case stated book which contains the
relevant award provisions, at page 238 the Court
will see reference to leave without pay, and in
paragraph 10.8 on that page:
Teachers may apply for leave without pay for a
full school year or for shorter periods
according to criteria •••.• subject to
availability of suitable replacements.

Sykes(4)

27/8/92

Then, Your Honours, in 10.8.1 at point seven

in the page, the Court will see that:
Granting of leave is subject to

arrangements for a suitable replacement.
Leave will not be granted if a suitable
replacement cannot be found.

Then, Your Honours on the next page, 239, as to
early return to duty, in 10.8.4 at the top of the
page:
Members who are granted leave will not be

permitted to return to work early unless there
are exceptional circumstances •••.. and unless
their return to duty can be accommodated
without undue disruption to staffing
arrangements . ·

In 10.8.5, second paragraph:
Once a member has accepted leave,

cancellation prior to its commencement will

only be allowed in exceptional circumstances. In 10.8.9 at the bottom of the page:
Leave without pay ..... does not count as

service for any purpose.

TOOHEY J: Mr Charles, when the case stated asserts on

page 21 paragraph 19 that:
At no time on or after 30 January 1992 was the
First Respondent attached to, nor did he have
any entitlement to, any particular or
designated position -

are we to infer that prior to 30 January he was
attached to and did have an entitlement to a

particular or designated position?

MR CHARLES:

Your Honour, the situation as to Mr Cleary's

position is set out on page 25 and will show the
employment history set out1 that until
27 January 1992 in paragraph (iii) on that page,

Mr Cleary:

was a secondary teacher, assistant class,
allocated to Avondale Secondary College until
27/1/92.

TOOHEY J:

It is really a matter of the language that was

used so the inference is that prior to 30 January
he was attached to, and did have an entitlement to,
a particular or designated position.

Sykes(4)

27/8/92

MR CHARLES:

Yes, as I follow the facts, at Avondale

Secondary College.
Such appointments would, as I understand it,

be made under the Teaching Service Act of 1981 in
sections 59 and 60, Your Honours should have
reprint number two, and those sections appear on

page 25. I do not intend to stay with the
sections, Your Honours.
In my submission it would come as a very considerable surprise to those who framed the Constitution that section 44(iv) might be thought
to disqualify an unattached State teacher on leave
without pay from membership of the House of
Representatives or, for that matter, would
disqualify two-thirds of the school staff in
Australia.
If itt is relevant, there certainly were State

school teachers in Australia before the turn of the
century; now in 1992 their position may be seen in
this context, the most recent Australian Bureau
of Statistics figures show that in August of last
year there was some 145,895 full time teaching
staff in government schools in Australia and in
non-government schools there were 53,638 for some
reason, full time equivalent units.

BRENNAN J:

Mr Charles, I notice there is an interesting

paragraph on page 298 dealing with teachers
standing for elections.

MASON CJ: You submit it is wrong, do you?

MR CHARLES:

Indeed,yes. We would submit that this Court

would not gain particular assistance from that
paragraph.
I do not know if it is any assistance to the

Court to have, in order to ascertain what the

consequences of the Courts decision may be, but I have here the Australian Bureau of Statistics figures for 1991 in case the Court would be
assisted by seeing them.

DAWSON J: This is to show there are a lot of teachers?

MR CHARLES: That and no more, Your Honour. It shows not

only that there were a lot of teachers, if I may
say so, Your Honour, but also in case of an
argument being made as to compatibility of
membership, the number of teachers in private
schools also because one of our submissions would
be there is no obvious reason why a teacher in a
State school should be in a position incompatible
when a teacher in a private school is not.

Sykes(4)

27/8/92

DAWSON J: Incompatible with what?

MR CHARLES:	Incompatible with membership of the House of Representatives.
DAWSON J:	Simply because one is under the pay of the Crown and the other is not.
MR CHARLES:	Your Honour, I accept that the person is under

the pay of the Crown, so, if I may say so, with
respect, would be a dustman working in the teaching

service. I mean, no disrespect to dustman but
there are a number of comments in the authorities
which say that on no view could a dustman be
regarded as holding an office.
Your Honours, in looking at the approach one

ought to take in relation to section 44(iv), we
would submit that disqualifying provisions should

be construed in favour of eligibility. We have
referred, in our submissions, to a number of
decisions in relation to union elections and we
have made reference to a passage in

Sir Reginald Smithers' judgment in Lovell's case, 22 ALR 704. We would not, Your Honours, place
particular significance on that submission were it
not also to be found in Erskine May.
Could I take Your Honours to the second volume

of the material which has been provided on behalf
of the Attorney-General and invite the Court to

look at page 235. In the concluding paragraphs of
the passage from the 16th edition of Erskine May in
which reference is made to a House of Commons
special report in 1956, Your Honours will see at
point 9 of the page, that:
The committee stated that they had had in mind at all times two principles to which they
attached great importance. The first of these
was that qualification for membership of the

House of Commons should be on as wide a basis
as possible~ the second was that -

qualifications should be shown -

in a form easily interpreted -

Your Honours, as to the purpose of disqualifications, again Erskine May deals with
that at page 200 in a passage which appears at
page 217 of the volume. Your Honours will see, at
page 217 at point 3, that:
The main considerations affecting the law -

Sykes(4)

27/8/92

in relation to disqualification of office holders
are said to be, firstly, the -
incompatibility of certain non-ministerial
offices with membership -

secondly -
the need to limit the control or influence of
the executive government over the House by
means of an undue proportion of
office-holders -

and, thirdly -
the essential condition of a certain number of

ministers being Members of the House - I will come back to those considerations shortly,
Your Honours.
May I also refer the Court to In Re Webster,

132 CLR 270. At page 279, Your Honours, the
Chief Justice referred to section 44(v) as having
regard to the:
penal consequences of its breach, the
paragraph should receive a strict
construction.

And next, Your Honours, we would say that some
assistance is to be gained from page 280 for our
argument on these matters, where again in relation
to section 44(v) the Chief Justice said at point 2
of the page that:
It seems to me that, upon the proper construction of the paragraph, bearing in mind
the purpose of its presence in the

Constitution, the agreement to fall within the
scope of s. 44(v.) must have a currency for a
substantial period of time, and must be one
under which the Crown could conceivably
influence the contractor in relation to
parliamentary affairs by the very existence of
the agreement, or by something done or
refrained from being done in relation to the
contract or to its subject matter.

Your Honours, what we draw from that, with respect,
is the submission that when one is considering the
operation of section 44(iv) one would look at the
two considerations to which Erskine May has drawn
attention in the passage to which I have referred
the Court, and see whether there is the possibility
of Crown, in this case, executive influence being

Sykes(4)

27/8/92

brought to bear on the member or potential member,
and, secondly, whether there is incompatibility in
a relevant sense. If not then, we would submit,
there are good reasons upon which an alternative
construction may be supported. The discrimination
against - - -

McHUGH J:

But what Sir Garfield Barwick has said in that

page 280 puts a substantial gloss on paragraph (v),
does it not? There is not a word in section 44(v)
which would supported the two propositions to which
His Honour refers.

MR CHARLES:	If I may say so, Your Honour, I accept that. call in aid, if I may say so, what Justice Deane	I
put to my friend, Mr Fajgenbaum, in relation to the
operation of section 44(i). Unless one reads these
sections in a particular way one does arrive at a
situation where either one has the absurdity of
allegiance or entitlement being forced on people
against their will or, alternatively, disqualification conditions appearing which have no
useful purpose whatever.
BRENNAN J:	The utility of the purpose is to be left to the consideration of the Court of Disputed Returns?

MR CHARLES:

I do not put quite so broad a submission as

that, Your Honour. What I shall be putting, in due
course, is that there is no conceivable reason why Victorian State teachers who owe an allegiance, no
doubt, to the Crown in right of the State should be
disqualified from membership of a Commonwealth
Parliament, notwithstanding the tailpieces, my
friend called it, of section 44, and there were
particular reasons why we would submit that section
or those words appeared in section 44, having
regard to very recent case law in the Privy Council
in which the one and indivisible nature of the
Crown had been stressed by Lord Watson, and which

all the great lawyers who were present at the
convention would have had very much at the

forefront of their minds.
I do not intend to take the Court to it, can I

simply say that the discrimination against public
servants which results from a broad interpretation
of section 44(iv), and the undesirability of that
discrimination, is commented on in a passage in
volume 2 of the Attorney-General's materials. It
is the Senate Standing Committee report of 1981,
and the passages, Your Honours, appear at page 250
to 254 and 256 to 7 of the second volume.

DAWSON J:

Why is it not desirable that those in the service

of the Crown should not display public views and
allegiance to a particular political party?

Sykes(4)

27/8/92

MR CHARLES:	Your Honour, we would say in this case, if I may start by dealing firstly with Victorian public
servants, and assuming for a moment that Mr Cleary
is a public servant as to which I make a separate
submission, my submission would be this: that
there is no longer an accepted view that the Crown
is one and indivisible. There is no necessary
correlation at all between the executive in
Canberra and the executive, say, in Melbourne.
They may be governments of entirely different
views, if not different political persuasions.

DAWSON J: That does not answer the proposition that people

in the public service, using it in your sense,
should not take sides politically.

MR CHARLES:

Your Honour, as to that, what appears both in reports of House of Commons committees as well as

in the Senate committee is the statement that civil
servants, in relation to the English position,
should be in a position at least to stand for
election and should not be called upon to resign

before elected. That passage appears, Your Honour,

in the House of Commons Select Committee Report in

volume one and the passage is page xxx at point 2

on the page.

It is not the purpose of my

submissions, Your Honours, to make any submission
as to the - - -

DAWSON J: The recommendation seems to be the qpposite.

MR CHARLES:	"should not be prevented from standing as candidates" is the expression which - - -
DAWSON J:	Your Committee therefore recommend that, with
the exception of holders of political or ministerial offices, all persons employed in civilian service under the Crown should be disqualified for membership - - -

MR CHARLES:

From membership.

DAWSON J:	I see, yes.
DAWSON J:	But be that as it may, the view held in 1901 is

likely to have been •..•• , is it not?

MR CHARLES:

Your Honour, it is not my purpose - it is not necessary for my argument to submit that

Commonwealth public servants - that it is

compatible for them to have membership of the House

of Representatives. I accept, bearing in mind that

the ministerial heads will be representatives in

that House or in the Senate, that there are

questions of compatibility, questions to which
Erskine May and Maitland both refer and which my

friend has cited.

Sykes(4)

27/8/92

The point, Your Honour, that I am simply

seeking to make on this aspect is that not only is
there now accepted as being a division between one
Crown in right of the Commonwealth and another
Crown in right of the State, but also that the ministerial head of the Education Department in
Melbourne does not have any say or the ability to
offer patronage in relation to the Commonwealth
Parliament at all, so that no question of patronage
arises, nor would a Victorian teacher be inhibited
in any way in expressing a view or taking a
position by virtue of the fact that his or her
ministerial head was present. That is the
submission that we seek to make, Your Honour.
In our submission, the term which is used is

office of profit under the Crown, and I submit that
some assistance is to be gained from

Edwards v Clinch, (1982) AC 845. I accept, of
course, that it is a case set in the context of
United Kingdom income tax legislation and my
friend, Mr Fajgenbaum, referred to
Lord Wilberforce's passage at page 860, where
His Lordship pointed to that particular context.
But, Your Honours, each of the other Law Lords who
were present on that occasion took a somewhat
different path and Your Honours will see from
looking at their report that the decision was by a
majority of three to two; those in the majority
were Lord Wilberforce, Lord Salmon and Lord Lowry
and the minority were Lord Bridge and
Lord Edmund-Davies.
The other four Law Lords, Your Honours, did go

to a more general definition of "office" and they
started in several .cases by reference to the Oxford
English Dictionary definition of "office" which
Lord Bridge of Harwich made reference to and set

out at page 881, near the bottom of the page. May
I refer the Court, without taking them in detail,

to Lord Salmon's speech at page 864 to 865 and
again to 866 to 867, and there Your Honours will
see that Lord Salmon goes to the Oxford English
Dictionary and then goes to the passage in which His Lordship makes reference to a dustman, that:
Mr Clinch, no doubt, occupied a position to
which duties of a public character are
attached. So does a dustman. Mr Clinch was
in a position of authority. So is a foreman.
But neither the dustman nor the foreman can be
of government. In any event, there are some
the holders of an "office." I do not think
people who do but do not hold an "office".

Sykes(4)

27/8/92

I would submit, Your Honours, that Mr Cleary does
not hold a place in the administration of
government.
In relation to the judgment of Lord Lowry, I

refer Your Honours to page 870 of His Lordship's
speech and again, Your Honours will see that
Lord Lowry commences at the top of the page with a
reference to the Oxford English Dictionary. Then,
in the middle of the page, at D, His Lordship

considers: ·
the ordinary meaning of "office"· in this
context involves the notion of a specific post
to which a person can be appointed, which he
can hold and which he can vacate.

At the bottom of the page, Your Honours, the last
five lines beginning:
A genuine office does not lapse because the
holder dies, retires or completes his
assignment.

There are like passages to be found at page 876,
where at point 3 of the page His Lordship refers
to:
The characteristics of permanence need

only amount to the independent existence of an
office, as opposed to its incidental creation
and automatic demise with the beginning and
the end respectively of the appointment of an
individual to perform a task.

His Lordship refers in the middle of the page to
the definition in Chambers' twentieth century
dictionary. Then, Your Honours, on page 877 at
point 6 of the page:
The situation is not typical of the present

case where the "office" can be created only by
appointing someone to do something and where
the "office" does not have to remain vacant or
be abolished after the holder has gone.

Finally, Your Honours, in Lord Lowry's judgment, at
page 878, the passage beginning at point 6, the
sentence beginning:
This, however, emphasises the importance of my
second point, that a person does not hold a
so-called office if it comes into being only
as the inevitable accompaniment of the fact of
the alleged holder's appointment to perform a
task: the "office" has no independent

Sykes(4)

27/8/92

existence and is not "distinct from the
holder."

Lastly, Your Honours, I make reference to
Lord Bridge in a speech which Lord Edmund-Davies
largely accepted in concurring in His Lordship's
dissent, beginning with the reference to the Oxford
English dictionary and continuing over the page
where His Lordship sets out the reasons why in that
case he would have come to the conclusion that
there was an office to which the inspector,
Mr Clinch, held at the relevant time and from which
he derived a profit.
There is repeated reference, Your Honours, to

the judgments in Great Western Railway Co v Bater and the well-known passage from
Mr Justice Rowlatt's judgment is contained in

(1920) 3 KB 266 at page 273 to 274 - I shall not read it - which was taken up by Lord Atkinson in
the decision in the House of Lords, (1922) 2 AC 1
at pages 14 to 15.
The reference to Bater, Your Honours, in the

House of Lords I take the Court to briefly, because
it is a case which involved a railway company who were assessed under a like schedule in the income
tax legislation in respect of the salary of a clerk
in their employ, the clerk being engaged at an
annual salary and in circumstances where his
employment was terminable on a month's notice.
Lord Sumner at page 27, after reference to the circumstances of the clerk in question, said:
Mr Hall, however, is in no sense a public
character nor does he hold any office at all.
He merely sits in one.

Your Honours, what we would say, bearing in mind
that the Court will have noticed that under the

Victorian Teaching Service Act there are repeated
references to teachers being officers and to the
positions they hold in schools being referred to as
an office, I would say that nothing that the
legislature might have said in describing the
position of a clerk or a dustman or a foreman could have convinced the members of the House of Lords in
Edwards v Clinch that the persons holding those
positions held an office of profit, still less an
office of profit under the Crown.

BRENNAN J:

But the context in which Their Lordships were

considering this was in reference to schedule E
which put in opposition officers and employments.

MR CHARLES:

Of course I accept that, Your Honour, and of course I accept that there is a clear tax context

Sykes(4)

27/8/92

for all of these cases. In Lord Wilberforce's
speech in particular, His Lordship makes reference
to the stream of authority and, in the case of
Lord Bridge dissenting, His Lordship goes through
in a similar fashion that stream of authority
saying that people have not really had to grapple
with that situation beforehand and that in
His Lordship's view, the previous statements are
wrong.
None the less, Your Honours, I would say that

what one finds here is a situation where there is
profit as so described, and Their Lordships are looking at the situation in its general context before applying it to the tax legislation.
reference to the dictionary definition of "office".
Lastly, Your Honours, on the question of the authorities dealing with an office, may I refer the
Court to Grealy v Federal Commissioner of Taxation,
20 ATR 403. It is on the list of authorities
provided, I am instructed, by the Solicitor-

General. It is a case which deals with the
position of a lecturer at a college of advanced
education in Queensland and the Full Federal Court,
at page 409, at line 9 - again, in the context of
Australian tax legislation - said:
But however widely the term is used in
s 26(d), one would not ordinarily speak of a
lecturer at a tertiary institution working on
a short fixed term as hold an "office". It
has to be conceded that the word is capable of
a variety of meanings, and its definition
greatly troubl.ed the Court of Appeal in Great
Western Railway Co v Bater ..... The word
"office" usually connotes a position of
defined authority in an organisation, such as
director of a company or tertiary educational

body, president of a club or holder of a
position with statutory powers.

Putting to one side, Your Honours, the question of public service or no, that might indicate that
Their Honours in that case could have taken the
view that a principal of a school held an office
whereas, in my submission, a teacher would not be
regarded as having an office in the view of that
court.
I draw the Court's attention to the fact that

in the passage from Quick and Garran, which is
cited in the material supplied, volume two of the
Commonwealth Material, the passage from Quick and
Garran appears commencing at page 195 and the Court
will, of course, recall that this very learned

Sykes(4)

27/8/92

volume was produced in 1901, immediately after the
Convention Debates. If Your Honours go to the passage dealing with Office of Profit under the
Crown which appears at pages 204 to 205, there is
not a hint to be found of a width of interpretation
of section 44(iv) which would include persons such
as teachers in the State teaching service.
The passage, Your Honours, dealing with the

civil service in Erskine May is found in the same
volume at page 223 and at point 4 of the page the
Court will see that:
No long experience of the working of the
parliamentary system of government was
required to show that departmental officers
could not sit in the House of Commons without
sharing the political opinions of their
chiefs, and that they could not actively
support any political party without ceasing to
be permanent.

Now, it is my submission, Your Honours, that that is something which has meaning and relevance
in relation to Commonwealth public servants, but
for the reasons I have already put, none in
relation to Victorian State teachers. Now,
Your Honours, if one assumes for a moment that
teachers are described in the Act as "officers"
and, when at a position at a school, as holding an
"office", Your Honours should be told that the
teachers are members of the State Teaching Service
and not of the public service and that requires
short examination of the relevant statutory
material, which I hope Your Honours may now have
been given. If Your Honours have a document which
was handed to the Court with the two pages from the
Bureau of Statistics, Your Honours will see
reference to the document headed:

The Teaching Service Act 1946 (No 5125)

MASON CJ: Yes, we have that.

MR CHARLES:

Your Honours, attached to that document are

various pages taken from Victorian legislation, the
purpose of which is to show that the teaching

service has been carefully divided off or from the
public service and that the public service is dealt

with by the Public Service Act, whereas the

teaching service is dealt with by the

Teaching Service Act.

On the first page of that

document, Your Honours, the relevant extracts from

the Teaching Service Act 1946 are to be found in the pages paginated 4,5 and 6 in the top corner.

Your Honours will see that by the Teaching

Service Act it defined the teaching service:

Sykes(4)

27/8/92

to mean teachers and it includes professional
officers -

Professional officers are defined by section 23,
which is referred to on page 5 of that material.
Then, Your Honours, the relevant section of the
Public Service Act is page 7 of the material.
Then, Your Honours, near the bottom of that first
page:
The position was changed by the Education

Service Act 1981 -

The three pages taken from that Act are at
pages 8,9 and 10 of the material: section 3 is on

to Act No. 10029/1983. That is contained on
page 8 ·and section 4(5) is on page 9. Then, made
pages 14 and 15 of the attached material and the
Court will see that by that Act the
Education Service became the Teaching Service and
section 6, page 14, it empowered the minister to:
determine which offices in the education
service -

would -
becom& offices in the teaching service - Your Honours, the injunction, remember that, which
follows, is directed to me and not to the Court.
The section 7 provided that those offices not
determined by the ministers to be in the teaching
service would fall under the Public Service Act and
the determination that was made by the minister
,appears at page 42 of volume 1 of the case book. Then, Your Honours, page 10 is included simply
for the purpose of - the reference is to

section 86. Your Honours will see that: The Public Service Act 1974 shall be amended -
so that that Act, the Public Service Act, should -
not apply to the-education service - And then, Your Honours, the next three pages, 11,12
and 13, are taken from the Public Service Act
which, although it is the Act of 1974, is in fact
the 1989 reprint, and Your Honours will see that
section 4(2) has been amended, as was required by
the previous legislation referred to. Then,
Your Honours, on page 3, reference is made to the
fact that if one goes to the Teaching Service Act
in its present reprint form, Your Honours will see

Sykes(4)

27/8/92

that by sections 54,55,56 and 57, movement is
provided for backwards and forwards between the
teaching service and the public service.

DAWSON J: But where does that carry you? All it needs is

that what would otherwise be the public service is
now divided up into two parts, one called the
teaching service and the other the public service.

MR CHARLES:

Your Honour, if I may say so, I was just about

to put to the Court that I am not quite sure what
one draws from that, but much is made by my friends on my left of labels which are applied in statutory
material, such as to describe teachers as officers
and it describes the position they hold as office.
Now, much is also made, Your Honour, of the fact
that they are supposedly public servants. There is
a question, the legislature has chosen not to label
them as public servants and not to apply public
service legislation to them. Instead, Your Honour,
it describes them as members of the teaching
service, officers in the teaching service, and in
so far as one is looking at matters such as
discipline, as transfers, promotions, wages, each
of those matters, Your Honour, is covered in the
Teaching Service Act in such a way as, I would
submit, leads to it being very difficult indeed for
any discipline, for any grant or favour from the
Crown, to be applied to officers in that context.

BRENNAN J: But do the words "under the Crown" mean anything

other than under the government?

MR CHARLES: Plainly, Your Honour, they mean under the

executive, in effect, under the government, yes,
and the mischief to which section 44 would be directed would be, primarily, the exercise of

executive patronage. Now, my submission would be
that the executive patronage, which is in question,
is the patronage of the Commonwealth executive, and

that it is meaningless to talk about any patronage
that might be involved so far as the quite
different Victorian executive is concerned. There
is no reason to think, in my submission, that a
Victorian State teacher would be embarrassed in the performance of functions in the federal Parliament, in any different fashion from, say, an employee of
a multinational company might be embarrassed by the
fact that his or her chief executive officer had
very firm views of a political nature. Plainly it
is desirable that persons give the fullest possible
time to their duties as members of Parliament, but
that is a different question to which the section
does not, in my submission, direct itself -
section 44(iv) that is.

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27/8/92

BRENNAN J:

I understand your argument based, I think, on

the word "office" and its distinction from a mere
employment, but if that argument fails and any
employment which returns profit is covered by those
words, do the words under the Crown add anything or
does it just mean government employees?

MR CHARLES:

I have some difficulty in answering that

question, Your Honour. My first submission to the
Court has been that the expression is a composite

one which is not happily divided off into
components, when one is talking of the granting or
withholding of patronage by the Crown or executive.
It is my submission that when one goes back to

authorities such as Quick and Garran and
Erskine May and to the the flavour which is given

to the authorities by decisions such as
Edward v Clinch, one does gain a notion of
prominence of some kind, a position of authority of
some kind, for example the House of Lords would
regard a person as holding an office of profit.
In relation to the Crown or the executive, it

is my submission that that does require the finding
of a person who is not at, if I can put it without
intending any pejorative connotation, someone
simply at the functional level of teaching, but someone further up the scale in the position of
some authority, before one finds someone who would
be regarded properly as in an office of profit
under the Crown.

BRENNAN J: That leaves for determination the problem of

distinguishing either between, for example, a clerk
in Treasury and a teacher, or if you say the clerk
in Treasury is simply a functionary then, how far
up the ladder does he become an officer?

MR CHARLES:

I recognize, if I may say so, the very great

difficulties of classifications that are involved
here. My first submission is that all the Court is
being asked to decide in this case is whether a
teacher in the Victorian State Teaching Service is
within the ambit of office of profit under the
Crown and that just as it is sometimes put that one can tell a rhinoceros when one sees it, that one
can see in this case that such a teacher is not in
that position without asking the Court to draw any
further lines, no matter how helpful it would be. In my submission this is something which the
Court can only approach on an incremental basis looking at different positions. It is a very
difficult question in a variety of different areas
and I doubt whether I can make helpful submissions

Sykes(4)

27/8/92

in relation to other echelons of Government or
department which would advance the matter.
The next point I seek to make shortly, and which is made in our written submissions, is that
the Teaching Service Act very clearly draws a
distinction between an officer and an office and if
the Court would be good enough to turn first to
section 4 of the Teaching Service Act 1981,
Your Honours will see that in section 4(4)(1), the teaching service. Your Honours will see in section 4 that:
Where an office is abolished the holder of the

office shall become an unattached officer - and then may be deployed as the Director-General,
now called the Chief General Manager deems
appropriate.
Your Honours, that same path distinguishing the
office from the officer can be found traced through
in the following sections, section 8A(3)(b),
section 8B(3), section 12, section 36(2),
section 62A(3) and section 62C(3).
Your Honours, it is my submission that

becoming an unattached officer and not having,
after 30 January, any post in the teaching
service - - -

DAWSON J: Except that of an unattached officer.

MR CHARLES:	He was an unattached officer.
DAWSON J:	That would mean in the office of an unattached

officer.

MR CHARLES:

I accept, Your Honour, that that is one

possible conclusion to draw. My submission is that
he had no office after 30 January and he remained
an employee of the teaching service but held no
office.
Your Honours, my next submission goes to the

question of "under the Crown". The authority,
which is not on my list of authorities and I need
only mention the case by name, is the Liquidator of
the Maritime Bank of Canada v Receiver-General of
New Brunswick, (1892) AC 437, in particular it is
in Lord Watson's opinion in the Privy Council at
page 441, which was the statement of the one and
indivisible nature of the Crown, a line of thought
which was continued shortly afterwards in Willia.ms
v Howarth, (1905) AC 551.

Sykes(4)

27/8/92

The only purpose of the reference to those

authorities, Your Honours, is that I draw attention to the fact that the many lawyers in the convention
must have recently read the Maritime Bank of Canada
decision, would have had in the forefront of their
minds the ringing statements of Their Lordships in
the Privy Council that the Crown was one and
indivisible and accordingly it is not surprising at
all that the suggestion was raised in debate that
if one excludes servants of the Crown one is
excluding State servants as well and I would accept
what Your Honour Justice Brennan put to my friend,
Mr Fajgenbaum, in argument that as a matter of
caution, in consequence, specific reference was
made to Ministers for the State to ensure that they
should be able to attend.
I would submit, Your Honours, that leaving aside that provision in the tailpiece of section 44
there is not otherwise to be found any basis for
assuming that those who framed the Constitution had
in mind public servants other than of the Crown in right of the Commonwealth. One finds the specific
reference in section 44(iv) to:
pension payable during the pleasure of the
Crown out of any revenues of the
Commonwealth -

I would submit that the fact that revenues of the
State are not mentioned is a matter of significance
and, likewise, that it is only a question of
pecuniary interests held with the Commonwealth,
which is referred to in section 44(v), that also
indicates that specific attention is being directed
to pecuniary inference potentially exerted by the
Commonwealth executive rather than be the executive of a State.
Now, it follows from the submissions I am

making that I am inferring that those who included
the reference to a State, in a passage to which

reference has been directed from the convention
debates, on the view that the Court now takes and
the theory which is now understood, were simply
mistaken as to the consequence of a reference to
the Crown in section 44 and, therefore, felt it
necessary to make provision for ministers in a
State, and my submission is that it is, therefore,
open to this Court to take the view that
section 44(iv) means the Crown in right of the
Commonwealth.
If that view is not taken, then my submission

is that the Court is entitled to take a strict
interpretation in relation to State public
servants, and to exclude from any classification of

Sykes(4)

27/8/92

State public servants those who occupy, for
example, positions in the State teaching service if
there is not to be seen any good reason for their
inclusion on the grounds of incompatibility or
otherwise with - - -

TOOHEY J: Mr Charles, it is a bit difficult to follow you

down that line of thought, is it not. Section 4 of
the Teaching Service Act empowers the Governor in
Council to create an office in the teaching
service. What does that mean, an office to be
occupied by whom?

MR CHARLES: Clearly, Your Honour, by a teacher or a

principal.

TOOHEY J:

But does that mean that an office is created for

every teacher?

MR CHARLES:

Not for every teacher, Your Honour, but as I

understand the position, most teachers hold
positions which are properly described as offices,
in the legislation.

DEANE J:

Is not the effect of the definitions of officer

and employee that every teacher, other than a
temporary appointment, holds an office?

MR CHARLES: Yes, Your. Honour, I understand that is the

correct position, because in the definitions on
page 2:
"Employee" means any person engaged under the
provisions of Division 4 of Part II of this
Act.

And that is temporary employment.

DEANE J: But one uses "office" that it is what this Act

calls an office.

MR CHARLES:

Yes indeed.

TOOHEY J: Well then, it is hard to imagine on that view of

the legislation that there can be a teacher who is
not holding an office, unless a temporary
appointment.

MR CHARLES: Yes. As described in this legislation, yes,

Your Honour, although in the case of Mr Cleary, at the relevant time, as I have put to the Court, my
submission would be that he did not hold an office,
as this Act would describe it. He may be regarded
by the Court as an officer or holding an office for
other reasons.

Sykes(4)

27/8/92

The argument I am simply seeking to put to the

Court is that in classifying positions in the
Victorian situation in relation to office of profit under the Crown for Commonwealth purposes, my
submission would be that the Court is entitled to
take a refined or restricted view of what the
section means in relation to the State, bearing in
mind the different potential for the exertion of
influence, the different executive that is involved
and the fact that, in my submission, no obvious
reason is seen for saying that a teacher should not
hold a position in Parliament, any more than that a
teacher in a private school, Melbourne Grammar for
example, should not be a member of the House of
Representatives. It is equally acceptable or
unacceptable, depending on your view of the
desirability of these things.
Now in so far as the control of teachers is

concerned and the potential for the exercise of
influence in relation to teachers, may I give the
Court the following sections under the
Teaching Services Act. The wages and conditions of teachers are all governed by the award. That is
also to be found in section 11(3)(b). Under
section 13(2) there is a right of appeal against
any refusal to grant an annual increment; under
section 58A(5) there is a right of appeal against a
failure to include a teacher on a list for
appointment; under section 60 there are
appointments boards established to fill vacancies;
under section 62(8) and (9) there is an appeal
against a cancellation of a promotion or transfer;
section 64 provides generally for appeals and
section 74(6) provides for appeals against charges.
The only purpose of the reference to those
sections, Your Honours, is on the question of the
possibility of influence being brought to bear by
the executive which, in my submission, is minimal
in those circumstances.

Now, the last matter in relation to office of

profit under the Crown, Your Honours, is it is my
submission that if Mr Cleary was the holder of an
office, then that office did not have profit

attaching to it. My submission would be that
Bowman v Hood is to be distinguished from this
case, because the office which Mr Hood there held
was one which had attached to it a right to
remuneration; he simply declined the fees. In this case, for the reasons which I have
sought to put to the Court and which are to be
found in the award in volume II at pages 238 to
239, the steps that Mr Cleary had taken, admittedly
voluntary steps in the first instance, had set him
in a position where for a full 12 month period he

Sykes(4)

27/8/92

was not entitled to any pay. Whatever office he
held, he was not entitled to any remuneration from
it, and that was a situation from which he could
only extract himself if exceptional circumstances
were found to exist.
Your Honours, as to the submissions made for the petitioner, may I make reference only to the
submissions at pages 4 to 5 which I would submit go
to the question of Commonwealth public servants,
not State public servants, still less teachers. In

Attorney-General, in particular at page 4, the

relation to the submissions filed on behalf of the appropriate to permanent officers of executive
departments and public service officers in
executive departments, in my submission, of the
Commonwealth. At pages 6 to 7 the submissions deal
with the Crown in right of the State. May I submit
simply that the arguments are unconvincing in the
case of a State teacher.
The last point, Your Honours, I would seek to

make in relation to the application to public
servants, in volume two of the Commonwealth
material at page 210, the Court will see that
Mr Garran's view as shown there on the question of
whether a State public servant holds an office of
profit was that the question was open to doubt -
that is at point 4 of the page.
Your Honours, the next matter upon which I

seek to put a very short submission is the time at
which Mr Cleary was chosen for the purposes of
section 44(iv). Firstly, Your Honours - - -

BRENNAN J; Before you get to that, Mr Charles, can I just

ask you this: I notice that in section 4(4) of the
Teaching Service Act of 1981, there is provision
for the deployment by the Director-General of an

unattached officer to any other office. Is it your
submission that even if he were an officer when he
becomes unattached, he is no longer the holder of
an office? Is that the proposition?

MR CHARLES: Yes, Your Honour, it is, although of course,

Your Honour will appreciate that I do not accept in
my submissions that he is the holder of an office
at any time.
Your Honours, on the question of when one looks for the question of disqualification, that is
to say, the time at which a person is chosen, I
adopt the submissions on behalf of the
Attorney-General at pages 7 to 10, and may I simply
make the very short additional submission that as a
matter of ordinary language, one would not

Sykes(4)

27/8/92

ordinarily say that one had been chosen or elected
until the time at which the result of the poll was
known, that is, by the declaration of the poll.
The submissions which have been filed on

behalf of the petitioner, and in particular in
paragraphs 4 to 8, make reference to the process
leading to the choice as being part of the choice.
In my submission, they are a process leading to the

making of the choice. In the course of the
submissions that my friend made on that question,
my friend submitted that it is desirable that
electors should know at the time of the poll
whether a candidate was qualified or not, and
Your Honour Justice Dawson put a question to my
friend at that point.
In my submission, it is critical to bear in

mind in dealing with this question that this is a
constitutional and not an electoral Act, and if one
looks at the convention debates, and particularly
the passages which have been cited in the material
put forward on behalf of the Attorney-General, one
finds repeated references to questions of machinery
or the way in which the Constitution is to be
worked out is, "Let us leave that to Parliament.
We do not need to clutter up the Constitution with

matters of that kind." And relevantly one would
find such sections as 29 dealing with electoral
divisions; 30, the qualification of electors, and the application of State laws in section 31 of the
Constitution.
The point that I am seeking to make is that

for constitutional purposes the first time at which
the Constitution, one might think, would be
concerned with disqualification, the first time at
which the mischief of potential incompatibility is
raised or the potential mischief of executive
influence being applied to a member, is the time at
which the member in question is elected or chosen.

In my submission, before that time there is no
reason for the Constitution to operate.
Now, the question of whether it is desirable

that candidates at nomination or on polling day
should be properly qualified and known to electors to be properly qualified is, in my submission, one which is entirely proper for an electoral Act to
take into account and deal with, and indeed, the
first Commonwealth Electoral Acts did, in terms,
deal precisely with that point. As Your Honours
will see, if members of the Court look at
volume II, the opinions of Mr w. M. Hughes at
page 208, Your Honours will see the reference at
point 3 of that page to section 95 of the then
Electoral Act which said that -

Sykes(4)

27/8/92

a person is not entitled to be nominated for
election unless he is qualified under the
Constitution to be elected.

And that appears still to have been the case in
1913 when Mr Garran was talking at page 210 in the
passage immediately before the one to which I last
drew the Court's attention, that is, at point 2 of
page 210.
Now, of course, the present Commonwealth

Electoral Act takes a different path, and in
dealing with qualifications under section 163 makes
different provision. It has not thought it
necessary in that Act to make a like provision.
That, of course, is obviously a matter for
government. But, in my submission, the critical
time is the last moment at which, which, in my
submission, is either the time of the declaration
of the poll or return of the writ, that that is the
moment at which the plain constitutional purpose of
determining whether a person is or is not qualified
starts to operate.
Your Honours, if all of those submissions are rejected then my last submission is that in the
event that Mr Cleary is found disqualified there
should be a new election and I adopt the
submissions of the Electoral Commission. Unless
there is anything further, Your Honours, those are
my submissions.

MASON CJ: Thank you, Mr Charles. Yes, Mr Bell.

MR BELL: If the Court pleases. It can be seen from

paragraph 1 of my outline that Mr Kardamitsis does
not join in the attack on the qualification of
Mr Cleary or of the other respondents and I make no

submissions in relation to that issue. I will be
referring for an indirect purpose to the want of

qualification of the petitioner.
The argument I wish to present is in relation
to two categories of issues: the first concerns
the question of relief which is dealt with in
paragraphs 2 to 6 of the outline; and the second in
category concerns the question whether the third
respondent was qualified under section 44(i) of the
Constitution.
The question of relief is important and I do

wish to make submissions in terms of the outline
later in my argument about that. But the most
important question from the point of view of the
third respondent concerns his qualifications to be

a member of Parliament. I wish to inform the Court
that whether or not the Court were to uphold the

Sykes(4)

27/8/92

petition and order an election to be held, in this
case the parties are agreed, as a matter of
accepted fact, that Mr Kardamitsis intends to stand
in the next election, whenever it is held in the
seat of Wills and, indeed, is the endorsed
candidate for the Australian Labor Party in that
election.
It is therefore important to him and, as a

matter of general importance, in my submission,
that the issue having been raised and argued fully
that the Court should determine it. For that
reason I go straight to paragraph 7 of my outline
of argument and I will return to the question of
relief subsequently.
The facts in the case stated book establish

that the third respondent is a naturalized
Australian citizen of Greek birth who has made
Australia, in every respect, his permanent home.
He has formally acknowledged his allegiance to
Australia on no less than four separate occasions.
He has, on one occasion, renounced his Greek
citizenship, pursuant to Australian law and,
putting the matter in summary, he has severed most
of his links with Greece.
He is a person, the facts in the case stated

book show, who is totally committed to his adopted
country, to a country which has accepted and
adopted him and whose loyalty to Australia can, in

no respect, be impugned. Indeed, it is not
impugned and no fact is relied upon to suggest that
there is any want of loyalty on his part to
Australia.
Yet it is argued under section 41 of the

Constitution that a person such as Mr Kardamitsis
is not qualified to be a member of the House of
Representatives and that argument, in my

submission, is put upon a literal, or dare I say
superficial or simplistic, reading of
section 44(i), and the contention advanced as to
the interpretation of that section, in my
submission, would lead to the harsh unnecessary and
unjust result, indeed, an unintended result, that
Mr Kardamitsis and others like him would not be
qualified to be members of the House of
Representatives or, indeed, the Senate, notwithstanding that they are fully committed to this country, fully loyal to it, and otherwise
qualified.

GAUDRON J:

I take it from the stated case that it is open

to the Greek authorities to refuse to release him
from Greek citizenship?

Sykes(4)

27/8/92

MR BELL:

It is, Your Honour, and I will be referring to

that question when I come to address the question
raised by His Honour Justice Deane as to the basis
upon which the problems raised by the construction
of section 41 should be resolved, and I will be
submitting, if I can summarize the submission now,
that any imposition of a requirement that all be
done that can be done will create more problems
than it solves.
In my submission the court, in the

circumstances, having regard to the consequences of
upholding the argument as to section 41, would if
it could adopt an alternative interpretation which
gave content and purpose to the section, but which avoided the results that might ot.herwise flow. In
my submission an alternative and preferable
interpretation is available. It is available if
the true object of the section is identified and,
in my submission, that object is to ensure that
Parliament is comprised of persons whose
allegiance - even their true allegiance - is to
Australia and as far as possible that those persons

cannot be subjected to improper influence by a foreign power.

McHUGH J: The difficulty with that submission is that it

seems to exclude the last limb of paragraph (i) of
44.

MR BELL:

It does not on its proper interpretation, in my

submission. I answer the question that way because
it is my submission that the last limb is not
capable of being properly understood unless it is
linked with the second, and indeed the first. My
submission will be, when I come to it, that the
three limbs in subsection 44(i) are built on the
first and that an interpretation of the three limbs
which understands the connection between the three
will lead to my submission being accepted.

McHUGH J:

I was really treating the second limb as

commencing with the words "or is a subject or a
citizen".

MR BELL:

The first limb would be the question of allegiance

and acknowledgment. The second would be whether
the person is a subject or a citizen, and the third
would be whether the person is entitled to the

rights or privileges of such a person. In my
submission, those three limbs, when the connection
between them is understood, can be interpreted
consistently in the manner for which I contend.

McHUGH J:

How do you read down the words "subject or a

citizen of a foreign power"?

Sykes(4)	27/8/92
MR BELL:	Because the question of who is a subject at law is

closely connected with the concept of allegiance
with which the three elements in the subsection
begins. The formulation -
Is under any acknowledgment of allegiance,
obedience, or adherence to a foreign power -

is one that not only guides the ascertainment of
the meaning of the provision in relation to
allegiance, but one that guides the ascertainment
of the meaning in relation to subject and citizen,
and indeed the third limb also, in my submission. Since the first limb depends for its
application on there being a present state as
implied by the word "is", on there being some
continuing tie or bond as implied by the word
"under" and, if I can complete, on there needing to
be some signifying voluntary act of sufficient
formality to indicate an intention, the section is
directed at something more than an involuntary
imposition of allegiance. Since allegiance and
citizenship are connected as a matter of law for
reasons to which I will come, in my submission the
Court would be entitled to read the provisions
together and therefore down.
Even if that submission were not accepted, it

is the case that the concept of citizenship, as it
is understood as a matter of international law, is
a concept which now depends upon an assessment of
the relevant facts to identify the real and

effective nationality of the individual. In my
submission, the Court would be entitled to employ
that test in order to identify as a matter of fact
what was the citizenship, that is to say the real
and effective citizenship, of the person. It is on
those two bases that I put the argument in relation
to the second and third limbs.

GAUDRON J: What privileges are there to citizenship apart

from a passport or rights? What apart from a
passport, rights and privileges, leave aside
duties.

MR BELL:

Your Honour, they could be anything from a right

to residence through to a right to stand for
Parliament and depending on how this Court were to
identify those things, of course, a person may be a
citizen who is entitled to the benefits of
citizenship even involuntarily, such that a person
who, by the laws of a particular country might be
entitled to enter and re-enter, to travel within,
to reside, to work, to enjoy government employment,
perhaps as a teacher, even to vote, may be a person
who would be a person who would be entitled to the

Sykes(4)

27/8/92

benefits of citizenship. Now that of course would
wreak havoc and be another consequence which would,
in my submission, be harsh, unnecessary and
unintended and one which this Court would seek to
avoid.
The construction of section 44 which is to be

preferred is one which in terms of paragraph 9 of
my outline would address the question whether or
not the person - and of course I speak of an
Australian citizen, however the person became an
Australian citizen - was presently subject to a
continuing allegiance to a foreign power, brought
about by some signifying involuntary act of the
person, or whether the real and effective
nationality of the person is foreign.
In such a case, section 44(i) would not be

satisfied but otherwise provided that the person
was an Australian citizen, it would be. The third
respondent satisfies that test.
The reasons I submit that that interpretation

is to be preferred are five, and the first is that
it would avoid harsh and unnecessary results in the
application of section 44(i). In situations where,
for reasons that I will later contend, Australian
citizens may have a foreign citizenship status
which is affected by their association with
countries which have widely different citizenship
laws, i situations where those citizens may not
know that they have such a status as is the case
with Mr Kardamitsis, in a situation where they may
find it difficult or impossible to withdraw from
that status.
In my submission, the second reason why the interpretation is to be preferred is that it is in
accordance with the true purpose of section 44(i).
In that respect I would rely on the decision of re

to have regard to the purpose of the statutory Webster for the proposition that it is permissible

provision in order to construe it. I rely upon

that particular case because it is, of course, a case containing section 44 itself, but there are
others.
In passing I might here adopt the submission

of my learned friend, Mr Charles, in relation to
the manner in which qualification provisions should
be interpreted.
Thirdly, I submit that that interpretation is

consistent with a proper interpretation of the
first element in section 44(i) concerning
allegiance and with the very close relationship in

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27/8/92

law between allegiance and citizenship and the
entitlements of citizenship.
Fourthly, I submit in reliance upon the

concept of real and effective nationality, as it
has now been developed in international law, that
the construction is consistent with that.

BRENNAN J: What is this doctrine of real and effective

nationality in international law?

MR BELL:

The doctrine is - - -

BRENNAN J: Where does one find it?

MR BELL:

One finds it in Nottebohm's case, which is a

decision of the International Court of Justice,
(1955) ICJ Reports 4, and it is a case to which I
shall come. One also finds it in the Iran - United States Claim Tribunal case, (1984) 23 International
Legal Materials 489. The two cases are referred to
in paragraph 14 of my outline.

BRENNAN J: Yes, thank you.

MR BELL:

I am reminded by my learned friend, Mr Fajgenbaum,

that they are referred to in the book of materials
put forward by the Solicitor-General.
Lastly, in answer to the submission made by my

learned friend, Mr Fajgenbaum, that foreign law
should be applied in the case of construing a
constitution, I submit that the construction is not inconsistent with that rule because the rule itself
permits departure and the current circumstances are
such as require departure.
Turning to the details as to the first

argument put forward justifying the construction, I
submit that there are many harsh and unnecessary

results.

MASON CJ:

We will adjourn until 2 o'clock, Mr Bell.

AT 12.52 PM LUNCHEON ADJOURNMENT

Sykes(4)	67	27/8/92
UPON RESUMING AT 2.04 PM:
MASON CJ: Yes, Mr Bell.

MR BELL:

If the Court pleases, I was at paragraph 11 of my

outline of argument which depends for its force on
the contents of the schedule. The schedule sets
out, among other things, the circumstances in which
persons who are Australian citizens might also be

citizens of one or more other countries. I rely on
what is put in paragraph 1 of the schedule in
relation to allegiance, but since there is only
faint reliance on allegiance by my learned friend,
Mr Fajgenbaum, I will not develop that argument

further. I will however go to citizenship and
develop it.
In paragraphs (a)(b)(c) and (d) of

subparagraph (1), and (a) and (b) of
subparagraph (2), there are a set of circumstances
set out. The circumstances show that the persons
with the characteristics there described will have
foreign citizenship, whether the person applied for
it, wanted it or not. The laws of the different
countries concerned, which would apply to persons
in those circumstances, are described in the words
of the learned authors as set out in
subparagraph (1), namely:
Oppenheim, International Law ..•.• Brownlie,
Principals of International Law •••.. and Weis,
Nationality and Statelessness in International
Law.

I will not take the Court to those works, but I do
submit that an examination of the laws that are
described in survey there justify the submission
that the persons described in (a) to (d) and (a)

and (b) in subparagraphs (1) and (2), will be
citizens and may find it difficult to withdraw from
that citizenship or indeed may find it impossible
to withdraw from that citizenship.
In order to save time may I simply, in

relation to subparagraph (1), refer to one case
only and that is the first. So that according to
the laws of some countries, a person born in that
country of Australian parents, even if, say, the
parents were on holiday there, might be a citizen
of that country because the laws prescribe that
birth in the country is sufficient to stamp
citizenship on the person. Because the laws of
particular countries also make differing provision
in relation to cancellation or withdrawal, such a
person, though the stamp of citizenship is applied

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involuntarily, may not be able to cancel that
citizenship or, if they are able to achieve a
cancellation of their citizenship, it may be
dependent upon the exercise of a discretion of
certain or uncertain width, depending on the laws
of the country concerned; depending on the
favourable exercise of a discretion which may be
easy to apply for and activate or not, depending on
the laws of the country concerned. Alternatively,
it may be impossible to obtain a cancellation of
the citizenship.
Of course, it follows from the nature of the different laws that apply that a person may quite unknowingly be a citizen of another country, or
indeed, more than one country, and the facts of the
present case demonstrate that unequivocally because been stated, did not know that he was a citizen of Greece as well as being a citizen of Australia, notwithstanding that he had declared his allegiance
to Australia, renounced his former allegiance to
Greece and become a naturalized Australian citizen.
In relation to the rights and privileges of

citizenship it is a consequence of the same
disparity in the laws that obtain in the various
countries that persons may enjoy certain rights,
however they be described for the purposes of
section 44(i), depending on the laws of that
country, and that that enjoyment may be as
involuntary in its obtaining and as difficult in
its cancellation as is the case with citizenship.
What follows, in my submission, is that a

simplistic reading or interpretation of
section 44(1) such that it would be applied to any
person who, by virtue of the laws of another
country, is either a citizen of that place or
enjoys some or all of the rights of citizenship of

Australia from the capacity to stand for the House that place, would preclude many persons in of Representatives or the Senate in circumstances
where the citizenship was involuntarily obtained
and difficult or impossible to remove. For that
reason, in my submission, the Court should strain
to adopt the alternative, in my submission,
preferable interpretation for which I contend.
In my submission, the interpretation of

section 44(i) for which my learned friend,
Mr Fajgenbaum, contends, effects not only harsh
results but unnecessary results, and I make that
submission because it would attach the stamp of disqualification to a person, however strong be their actual commitment as a fact to Australia, and
however weak be that person's actual association

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with the foreign power concerned. And to that

extent it would be an unnecessary interpretation
which would not serve the purpose of section 44(i)
on its proper construction.
Moving to the second ground upon which the

alternative construction is to be preferred, I
submit that it is a key to the interpretation of
section 44(i) even as a matter of literal
construction that the subsection begins with a

formulation concerning allegiance. As a matter of
law, in my submission, the concept of what is a
subject or a citizen is closely connected with the
concept of allegiance, so closely connected, in
fact, that the Court can be guided by the manner in
which the allegiance qualification is expressed
when it comes to construe the citizenship and the
rights of citizenship qualification.
Without going directly to the authorities, but

summarizing what they say, I submit that the
concept of subject or citizen can be defined this
way: that a subject or citizen is a person who
owes allegiance to the sovereign; and conversely,
someone who owes allegiance to the sovereign is a
subject or a citizen. The two being the opposite
side of the same coin, it is permissible, indeed
necessary, to interpret the entire subject-matter
of section 44(i) in a way that has regard to the
manner in which the allegiance formulation is
expressed.

BRENNAN J:

Is the hypothesis consistent with the trial of

Joyce, Lord Haw Haw, after the Second World War?
Was he not tried on the basis of treason, owing
allegiance to the Crown though he was not a British
s.ubject?

McHUGH J: The mere fact that he got a passport was held

sufficient?

MR BELL: Yes, so that he owed allegiance and was,

therefore, able to be tried for treason. Yes, it
is consistent, in my submission. Indeed, I would
rely upon the formulation in Joyce's case, (1946) AC 347, at 366 point 4, where Lord Jowitt says as
follows:
I have said, my Lords, that the question

for consideration is bound up with the
question of allegiance. Allegiance is owed to
their sovereign Lord the King by his natural
born subjects; so it is by those who, being
aliens, become his subjects by denization or
naturalization ••••. so it is by those who,
being aliens, reside within the King's realm -

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27/8/92

et cetera. So that His Lordship begins with his
description of who it is that owes allegiance with
a reference to allegiance being owed by "natural
born subjects". That being the usual case there
are others, of course, such that allegiance can be created by naturalization, local allegiance can be created as His Lordship explains by travel within a
country and, of course, there is legal allegiance
to which reference is made in Calvin's case which
is created by an enunciation of allegiance.
But in my submission the reference by

His Lordship first to allegiance being owed by
"natural born subjects" is significant, and it is a
formulation that is expressed in the same way in
Blackstone's commentaries at the point referred to
in paragraph 12 of the outline, and by John Salmon
in the article which was written close to
Federation in 1982 in the Law Quarterly Review, also at the place specified in the outline. For that reason, in my submission, it is not only for the purpose of examining the width of the first
element in section 44(i) that one attends to the words used but for the purpose of construing the
whole subsection.
What are the essential elements of the

formulation in section 44(i)? In my submission
they are the existence of a present status as
implied by the word "is"; the existence of a continuing tie or bond as implied by the word
"under"; and by the existence of some signifying
voluntary act as is implied by the word
"acknowledgement" •
If the language of the section is read in that

way it would exclude natural allegiance without
more because it is involuntary, in the
circumstances of the present case, which is
consistent with section 34(ii) which permits a

naturalized person to stand for Parliament; it
would exclude local allegiance because it is
transitory, local allegiance being that allegiance
which is owed by a person while being in another
country; it would include allegiance acquired on
naturalization if voluntary and legal allegiance
which is, by definition, voluntary and formal.
So interpreted section 44(i), in its first

element, has a meaning and content which is capable
of proper application in a way which avoids absurd
and harsh results. In that respect I would rely
upon the comments of some members of this Court in
the case of Nile v Wood.
I submit that since the rudiment of

section 44(1) as a whole is allegiance, and because

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27/8/92

allegiance and citizenship are connected closely in
the way that I have submitted, it is necessary to
interpret the second and third elements in a manner

that is consistent with the first. Even if that
submission be not accepted, in my submission it is
possible to construe the word "citizen" and
"subject" and the words that follow "rights of a
citizen or subject", by reference to what those
words now mean as a matter of international law,
and so interpreted the section can also be given a
meaning and a content which is consistent with its
purpose but which does not have the harsh and
absurd results which would follow if it were
interpreted in another way.
The principles to which I refer have been

expounded in two cases of note. The first is
Nottebohm's case at the place cited in
paragraph 14, and in the Iran-United States Claims

Tribunal case. I turn first to Nottebohm's case.
The facts of this case in brief are that
Liechtenstein made a claim as a matter of
international law against Guatemala in the
International Court of Justice on the basis that
Guatemala had acted towards Nottebohm and his
person and property contrary to international law.

Nottebohm was by birth a German. German nationality at all relevant times and he

He possessed
applied for and was granted naturalization in

Liechtenstein. He had lived for many years up to
the date of grant of naturalization in
Liechtenstein in Guatemala, and he continued to live there but left when the events the subject of the claim occurred. In those circumstances,
Guatemala argued before the International Court of
Justice that the court had no jurisdiction over the
claim because Nottebohm was not a national of
Liechtenstein, in which circumstance it would not
have possessed jurisdiction.

The court reviewed the international law in

relation to how that question could be determined
and reviewed the applicability of the convention to
which reference has been made by my learned friend
Mr Fajgenbaum that the law of the foreign state
concerned in relation to its nationality should be
applied and due application given to it in
international tribunals.
The court decided that the appropriate test to

apply was not the law in the foreign state
concerned, but a test which it created itself by
reference to previous authorities and international
learning, namely the test of whether Nottebohm's
real and effective nationality was that of
Liechtenstein or some other country. The relevant

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passages are at pages 20 to 24 of the report, and
in particular I rely on what is said by the court
at 23 as follows at point 2:
The character thus recognized on the

international level as pertaining to
nationality is in no way inconsistent with the
fact that international law leaves it to each
States to lay down the rules governing the

grant of its own nationality. The reason for
this is that the diversity of demographic
conditions has thus far made it impossible for
any general agreement to be reached on the
rules relating to nationality, although the
latter by its very nature affects
international relations. It has been
considered that the best way of making such
rules accord with the varying demographic
conditions in different countries is to leave the fixing of such rules to the competence of
each State. On the other hand, a State cannot
claim that the rules it has thus laid down are
entitled to recognition by another State
unless it has acted in conformity with this
general aim of making the legal bond of
nationality accord with the individual's
genuine connection with the State which
assumes the defence of its citizens by means
of protection as against other States.

The court goes on, at point 7:
According to the practice of States, to arbitral and judicial decisions and to the
opinions of writers, nationality is a legal
bond having as its basis a social fact of
attachment, a genuine connection of existence,
interests and sentiments, together with the
existence of reciprocal rights and duties. It
may be said to constitute the juridical

expression of the fact that the individual
upon whom it is conferred, either directly by
the law or as the result of an act of the
authorities, is in fact more closely connected
with the population of the State conferring
nationality than with that of any other State.
Conferred by a State, it only entitles that
State to exercise protection vis-a-vis another
State, if it constitutes a translation into
juridical terms of the individual's connection
with the State which has made him its
national.

The test of which the court was there speaking was
explained in the following terms at page 22 of the
judgment at point 3:

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International arbitrators have decided in
the same way numerous cases of dual
nationality, where the question arose with
regard to the exercise of protection. They
have given their preference to the real and
effective nationality, that which accorded
with the facts, that based on stronger factual
ties between the person concerned and one of
the States whose nationality is involved.
Different factors are taken into
consideration, and their importance will vary
from one case to the next: the habitual
residence of the individual concerned is an
important factor, but there are other factors
such as the centre of his interests, his
family ties, his participation in public life,
attachment shown by him for a given country
and inculcated in his children, etc.

The Iran-United States Claim Tribunal case, which
is more recent, is to the same effect. If the test
of real and effective nationality thus expounded
were to be regarded as the test of whether a person
was a citizen, for the purpose of section 44(i),
which is a constitutional purpose, then that
section is capable of being given proper meaning
and content while avoiding the harsh consequences
for which I have contended.
In paragraph 14 of the outline I refer to

Kramer's case and to Joyce's case and to particular

passages in that case. I only make those
references because in the places specified, similar
considerations to the ones to which the Court in
Notteboh.m's case had regard or had regard by the
Lordships in the passages referred to. So that it
is true that while, as a matter of a general rule,
the English cases have followed the nationality
laws of the foreign country concerned, that they
have also had regard to similar such
considerations.

It is clear from the facts stated in the case

stated book that if the test is as it is set out in
Notteboh.m or like it, the third respondent would
qualify. And in particular I would refer the Court to what is stated at pages 28 to 29 in paragraph 32
of the book.
The next submission I make is that for the

Court to construe section 44 in that way would not
be contrary to the principle that might be followed
as a matter of private international law, if the

question arose in a different context. My learned
friend, Mr Fajgenbaum, has referred to
Oppenheimer's case and to passages in that case
where the general rule is stated. But, in my

Sykes(4)

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submission, the rule has never been stated in
absolute terms and the courts, since the earliest
case concerning the pronouncement of the rule have
recognized that it did not always apply.
The clearest exposition of the qualified

nature of the rule can be found in Stoeck's case,
(1921) 2 Ch 67. In this case the question was
whether or not Stoeck was subject to the Treaty of
Peace Order 1919, which applied as a matter of
English statutory law. The question that arose was
whether, under that English statutory law, Stoeck
was a German national. If he was, then the
property of his in England, or within the dominions
of the Crown, were subject to charge.

McHUGH J: You keep referring to nationality; that is the

problem, is it not? Citizenship is a term
recognized by municipal law; nationality is the
term recognized by international law, and the
Constitution is dealing with the term "citizen".
And these authorities to which you are referring us
are in a different area of discourse, are they not?

MR BELL:

No, Your Honour, with respect. Take Stoeck's

case; it is a case which concerned the construction
of an English statute. The term "national" is used
there as if the question were whether or not the
person was a German citizen, and the terms for
present purposes, in my submission, are the same.
Now, as a matter of precision of language, of course they are not, because nationality refers to
the membership by a person of a particular race,
rather than the membership by a person of a
particular State. Citizenship connotes membership
of a State; nationality connotes membership of a
nation. But, for present purposes, in my
submission, the questions are absolutely identical.
Certainly they were treated as such in
Nottebohm's case, that is on the international
plane •. This is a case before the Court - I refer,

of course to Stoeck's case - which is on the
domestic plane or the municipal plane, where the
term is used in like manner, in my submission.
The question was answered in Stoeck's case in the negative. In other words, it was decided in
that case that Stoeck was not a German national,
very much on the facts of the case with which I
will not detain the Court. But I do refer the
Court to what is said by Justice Russell at page 82
at point 3 in the following terms:
There remains for consideration the contention that the words "German national" in
the Treaty of Peace Order, and section IV of
Part X of the Treaty of Peace, mean or include

Sykes(4)

27/8/92

a German national according to English law. I
confess I have difficulty in following this.

Whether a person is a national of a country must be determined by the municipal law of
that country. Upon this I think all text

writers are agreed. It would be strange were
it otherwise. How could the municipal law of
England determine that a person is a national
of Germany? It might determine that for the
purposes of English municipal law a person
shall be deemed to be a national of Germany,
or shall be treated as if he were a national
of Germany; but that would not constitute him
a national of Germany, if he were not such

according to the municipal law of Germany. I rely on that passage but, of course, if it were
expressed in the obverse it would be of direct
application in the circumstances of the instant

case. I rely on that passage because it
establishes that the rule is not absolute. The
fact that the rule is not absolute is made
abundantly plain in Oppenheimer's case, (1976) AC

249, in any event. I rely in particular upon what
is said by Lord Hailsham at 261-262 where his
Lordship says this at H:
It is true that under the terms of the

agreements the question must be decided by
English law (see article II (3)of the agreements), but English law requires as a
rule that the question of foreign nationality
falls to be decided according to the municipal
law of the foreign state concerned.

And Stoeck's case is referred to. Then his
Lordship says at 262 at A:
It is, of course, the case that

Russell J. in Stoeck v Public Trustee accepted
that in exceptional cases English law might

attribute a particular foreign nationality to
persons who might not in fact possess it, as
may have been done in Ex parte Weber and the
other cases cited. Again, if that were
expressed in the obverse it would be of direct
application in the instant case.

McHUGH J: But is it fundamental to your case that

nationality and citizenship are identical?

MR BELL:

Your Honour, they are not identical as a matter of

pure legal theory or precision of language, I have
conceded that of course, but when the terms are
used in the cases to which I have referred they are
being used in an identical way and the distinction
to which I have referred myself has not been drawn

Sykes(4)

27/8/92

for the purpose of the case, and in the instant
case I do not draw a distinction for the purpose of
section 44(i).

BRENNAN J: That raises a problem I suppose with regard to

the last words of 44(i), does it not, speaking of
the rights and privileges?

MR BELL:

There are problems, of course, that arise by the

width of the language of the third element.

BRENNAN J: So the practical problem, I should have thought,

with your argument generally is that it does not
cater for, for example, somebody who has a green
card from the United States; that is if my
understanding of the green cards is right.

MR BELL:

Which is a working permit I think, is it?

BRENNAN J: Well, a working permit and I think it gives some

other rights and privileges as well.

MR BELL:	Some other such rights.
BRENNAN J:	If something like a green card or extended green

card is within 44(i), then we are not concerned
solely with status, are we, we are concerned with
rights conferred by another legal system.

MR BELL:

If the third element is construed on its own and

were given a literal interpretation, with no
consideration to its consequences or to what comes
before it in section 44(i), then it would be
possible to construe it to applying even to a
person who has a green card. Or, to someone who
has a right to enter, or to somebody who has a
right to vote, or to somebody who has a right to
.reside or any of the other things that might
normally go with citizenship.
But, in my submission, the Constitution would

not have intended such a reach because it is wider
than any good purpose for section 44 could have
had, it is of uncertain application because it does
not contain within i_tself a definition of the
rights to which it might catch and it therefore leads to consequences to which I have referred.

BRENNAN J: Conceding all of that, it is there. What do we

do with it, on your submission?

MR BELL:

In my submission, what the Court does with it is

treats it as part of a whole formulation which
begins with allegiance which has had given to it an
operation of a particular kind which is limited,
and treats citizenship and the rights of

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citizenship in a way that is consistent with that.
In my submission that is permissible.
There is one other alternative submission that

is open which would focus on the presence of the
word "the". The Court might see significance in
the fact that the formulation is expressed this
way: "the rights or benefits of a subject or a
citizen of a foreign power". It is open to
interpret the word "the" in a manner that requires
that all of the rights of citizenship be present
before the formulation would apply to the person.
The word is not "a" or "one of" or "some of" or
"the main ones of"; the word is "the".
So interpreted as a matter of language, it is

capable of being given a construction that does not
add very much, I must concede, to citizen but which
nevertheless gives it some scope for operation

which does not denude it of total meaning. On that
alternative basis, I would submit that it does not
apply to my client because he does not have those
things, if the true nature of his citizenship be
determined by reference to the real and effective
citizenship test which is referred to in
Nottebohm's case. For those reasons, in my submission, the construction for which I contend is
not inconsistent with the common law.
It remains for me to refer to two cases, one

briefly and the other at greater length. I refer
to Pochi's case briefly because it is an example of
the Constitution being given an Australian meaning
in a context where the question was, "Who was an
alien?", where the Court avoided absurd results by
giving the word "alien" an Australian meaning. Of
course, I concede that it was in a different
9ontext, but nevertheless the approach is clear.

Finally, I submit that Burgess' case is quite distinguishable from the instant case.

My learned

friend relied upon Burgess' case for the
proposition that as a matter of Australian law,
where the question as to the nationality of a
person arises, the foreign states law applies. In
this context I use the word "nationality"
advisedly, because that is what is used in the
Australian law in which context the case arose.
It is clear from the case that the question

that the Court had to determine is the validity of
regulations which should have depended for their
operation upon a proper description of the foreign
nationals and Australian nationals engaged in the
aviation industry in Australia, which provision the
regulation did not make and for which reason the
regulation was held to be invalid.

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27/8/92

In those circumstances, in my submission, the
question asked and answered in that case was asked
and answered in a thoroughly different context and
the case is of no assistance in relation to the
present problem. They are the submissions that I
wish to make in relation to section 44(i).

DEANE J:

Mr Bell, if, contrary to your submission, one were

to take the approach that it requires someone in
your client's position to have taken all reasonable
steps, do you put any significance on the fact that
the only step he did not take was to seek the
exercise of a discretion? In other words, if you
were to ask for the exercise of discretion by the
minister of a foreign country, does that to some
extent involve an acknowledgement of allegiance or
citizenship to that country from which you have
been asked to be relieved?

MR BELL:

Formulated that way, the mere asking of the "be

released" may have - - -

DEANE J: Well, what I was wondering was: is there an

argument that it would be quite unreasonable for
somebody who had done all that he can to show
allegiance to this country to then seek a
discretionary release from another country?

MR BELL: There is an argument, and I put it, with respect.

The circumstances of the instant case are such that by virtue of the Greek law that has been proved,

permission may be asked for. It might be granted
or might not. Whether it may is a matter of
discretion. What are the criteria upon which the
discretion might be exercised is not known.
Whether there is any appeal mechanism is not known
either. Whether there is any right to the exercise
of the discretion or even to the making of a
decision is not known, and the whole mechanism
which is described on page 29 of the appeal book

and beyond is filled with uncertainty, as one might

expect. And, of course, to find out the
circumstances in which the discretion might be
exercised, whether there is a right to its
exercise, how one might apply, whether one can
appeal, how long it might take, how costly it might
be, are all circumstances, in my submission, which
might suggest that an answer to the problem which
would require steps to be taken might create more

problems than it answers. But that is going
somewhat further than Your Honour Justice Deane put
to me, and I would submit that at least in a case
where the grant of the release was not automatic,
that to require the step to be taken to seek discretionary relief is to require too much.

Sykes(4)

27/8/92

But I would also put in the alternative that

the problem arises: what if the mere request for
the release itself were to be treated as some
acknowledgment for section 44(i) purposes? Perhaps

that is stretching the language too far, in which
case I would rely on the first two submissions I
just made.
In reference to the question of relief, the

submission that I make in the instant case is that
it is open to the Court, if In Re Wood is followed
and applied on the basis that the present case is
regarded as being on all fours, for the Court to
order a special count to be taken in order that the
next choice of the electorate can be identified
upon a special count of the votes in accordance

with the procedure that was adopted in Re Wood. In
my submission, In Re Wood decided a number of
things which are of direct application in the
instant case, and relevantly those things are set
out in paragraph 4 of my outline.
It was first decided in that case, at 164

point 3, that:
The election and return of an unqualified
candidate is wholly ineffective to fill a
vacant Senate place.

It was next decided, at 164 point 7, that an:
election is not completed when an unqualified
candidate is returned -

It was next decided, at 165 point 7, that:

The purpose of the poll is to
choose ••... preferred candidates -

in the case of a Senate election "candidates". It
was next decided that voting for an unqualified

candidate does not destroy the other indications of
a voter's preference, at 165 point 9 to 166
point 1.
In my submission, though there be, of course,

differences between an election carried out in an
electorate for which there are more than one
members, namely the Senate, in pursuance of the
proportional preference voting system, on the one
hand, and an election carried out in a single
member electorate according to the preferential
voting system, on the other, those differences are
not so great as to distinguish In re Wood from the
present case.

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27/8/92

In relation to the voting system concerned, I would rely on the following provisions of the -

DEANE J: Except in terms of result, the result in In re

Wood was the sensible result in the context.

MR BELL:

Because the other 11 had been elected?

DEANE J: That is so and also because there were groups of

candidates and if his vote did not go to him the
situation ~as it almost certainly went to the next
in the group.

MR BELL: Yes, it was from the same group.

DEANE J:

I mean, here, the position is quite different in

that you have the first preferences of the majority
saying that they do not want your client and there
is only one candidate to be elected.

MR BELL:

Your Honour should not assume that a special count

would result in the election of my client.

DEANE J:	I have no idea how it would result.
MR BELL:	Nor do I.

DEANE J: But looking at these figures, one gets the very

clear feeling that there would be something wrong
if you simply said, "Even though the candidate who
got the highest number of votes is disqualified, we
will foist on this electorate whoever comes in.".

MR BELL: Your Honour, I must acknowledge the force of that. DEANE J: But all I am saying is the cases just do not seem

to me to be comparable. I am not saying that you
are wrong.

MR BELL:

They have these common features, Your Honour.

The

features are that there was a preferential voting

system in operation in each, that the Court made
orders in In re Wood which permitted the
identification of the next choice of the electorate
in circumstances where you had determined that
there was an unfilled place and the other
indications of the voters' choice were still valid.
In the present case, the Court can give orders

which will have the same effect, the only
distinguishing feature being that there is no group
ballot paper in operation for definitional reasons,
that this is a preferential election or an election
for a single candidate in an electorate according
to preferential voting system such that groups are
not provided for, as in the case of the Senate.

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If the Court were of the view that the

inconvenience and cost of an election which might need to be held if the petition were upheld could
be avoided on the basis that a valid choice, albeit
not the first choice of the electorate, could be
identified, then on that basis, in my submission,
the Court could order that there be a special
count. If, however, the Court were of the view
that that next best choice would not be the
appropriate one to visit upon the electorate, then
the Court would order that there should be a new
election.
In relation to the common features between an

election held in the House of Representatives and
the Senate, can I simply ask the Court to refer to
the following sections of the Commonwealth
Electoral Act, namely section 273(8),(9),(10),(13)
(13AA) and (15), in relation to the Senate, and
section 274(7)(d), in relation to the House of
Representatives. It might be argued that the
decision in In re Wood depended on the analogy that
was drawn at 166 point 4, between a vote cast for a
candidate who had died and a vote cast for an
unqualified candidate. In my submission, that
analogy cannot be pushed too far and cannot be used
as a basis upon which to apply section 180(2) of
the Commonwealth Electoral Act to the present
circumstances, which provides that:
If after the nominations for an election for
the House of Representatives have been
declared, artd before polling day, any
candidate dies, the election shall be deemed
to have wholly failed.

I argue that the death of the candidate in
In Re Wood was of course wholly notional; Mr Wood
had not died, and that, in the present case, if it
be true that an unqualified candidate is to be so
treated, that of course there was at least one

unqualified candidate in the instant Election, namely the petitioner, and surely it cannot be the
law, if what else is said In Re Wood is right, that
the mere presence of an unqualified candidate will
have the result of making an election wholly fail.
On the basis of that, I submit that the analogy
does not hold.

Finally I submit that the English cases are no good analogy either. The voting systems in
relation to the cases which are reviewed in
re Parliamentary Election for Bristol South East,
to which I do not take the Court, were all systems
either first past the post or elections concerning
two candidates and such cases, in my submission,
are not the equivalent of the present, and

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therefore the cases are not of assistance. On that
basis I submit to the Court that the Court might
order that there be a special count rather than a
new election. If the Court pleases, that concludes
my submission.

MASON CJ: Thank you, Mr Bell. Mr Rose.

MR ROSE:

If the Court pleases, may I say first that the

Electoral Commission strongly supports the
submission by my friend, Mr Bell, as to the
importance of the Court deciding all the
disqualification issues, even if Mr Cleary is found not to have been disqualified. Secondly, my friend
Mr Charles has adopted my submissions, but I
understand from him that that does not imply a
formal abandonment of the submission that he makes
in paragraph 17 of the written outline, and in that
paragraph he argued that, even if Mr Cleary was
disqualified, the Court should not declare his
election void, since he has cured the defect by his
resignation from the public office. The
Electoral Commission would see that as a very acceptable result, if it is constitutionally acceptable, but the Commission makes no submissions
on that constitutional issue.

MR ROSE:

If the Court pleases, in our outline we have made

the point that a special count would seriously
distort the voters' real intentions, because
although preferences are expressed they are
preferences within the field of candidates
presented to the voters.

My friend, Mr Bell, relies though on

In re Wood, pages 165 to 166, where there was a
recount or a special count on the basis that the
preferential votes, if counted as if Mr Wood had
died, were taken to represent the true legal intent
of the voters. The expression "true legal intent"
Your Honours will find on page 166, about half-way

down the page.
My friend says that the same reasoning applies to House of Representatives elections and so there
should be a special count here and not a new
by-election, but the statement in Woods case was,
as Your Honour Justice Deane has pointed out, in
the particular Senate context of that case, and it
is my submission that it should not be followed in
the case of a House of Representatives election,
where a recount would not be at all appropriate.

Parliament, itself, has treated

Representatives elections differently from Senate
elections in the cases of candidates deaths, and in
section 180(2) the Parliament has provided that if

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a candidate in a Representatives election dies
between nomination and polling day the election
wholly fails, whereas the position, of course,
under section 273(27), in the case of a Senate
election, is to count the votes with the
preferences adjusted accordingly.
When you look at the reasons for the different

treatment by the Parliament in the cases of deaths,
we can see the reasons why different treatment is
also appropriate in cases of disqualification.
First, the distortions that would arise in Senate
recounts are often very much less important than they could be in Representatives elections. For
example, in the Senate in the ordinary half Senate
election each party puts up six candidates, and
with the proportional representation system since
1948 a party would have to be extremely optimistic
to expect that it would get all six of its
candidates elected. So that if one of them has
died the preferences on a special count, usually or
often, would give the seat to the same party and,
of course, in the case of Wood itself it was
another member of the Nuclear Disarmament Party who
was elected in place of Mr Wood on the recount. In the Representatives, though, a special
count would often result in the election of a
candidate of a quite different political
complexion. Section 180(2) to which I referred was
inserted in 1928 after a rather spectacular example
in the 1925 election, where a Labor candidate who
had been elected with great majorities ever since
1913, unexpectedly died and the Nationalist
candidate took the seat for the term of the house.
There was bipartisan support for the amendment with
the Nationalist Party saying, "Next time it may be
that the Kooyong electorate will get a Labor
member". And in this particular case if Mr Cleary
were disqualified a special count could,

conceivably, and, of course, I am not in a position
to say whether it would, but it could conceivably
result in the Labor candidate being elected with
what many might see as significantly different
policies.
Secondly, even though some distortions could

result from a recount in the case of the Senate the position is, in my submission, that the distortions
that result from that are much more acceptable than
the alternatives. Some reference has already been
made to that, in particular, the point identified
very clearly in the judgment In re Wood at
page 166, where the Court pointed out that the
result of having an election for one candidate
would be inappropriate because such an election
would fill the vacant place by what would be, in

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effect, preferential voting for a single member
constituency not by proportional voting for a
multiple member constituency, because what would
happen would be the quota would be 50 per cent of
the formal votes plus one, and so either you would
have a candidate getting an absolute majority and being elected on that basis or no candidate would
get an absolute majority, there would be no
surpluses to be distributed and the result would be
determined exactly as by preferential voting system
in the House of Representatives.
So that alternative was, in my submission,

correctly identified in In re Wood as wholly
inappropriate, just as it would have been wholly
inappropriate to have an election for all the
Senators who had been elected, since after all only
one candidate had been the subject of a petition on
the basis of disqualification.
Further factors that make it inappropriate to

follow the Senate course in relation to a
Representatives election are, of course, in the case of the Senate the alternative of an election

would be extremely expensive. It could run into
many millions of dollars. Whereas, in the case of
a House of Representatives election, I am
instructed that the cost of a by-election in the
electorate of Wills would be of the order of
$360,000 as compared, as I have said, with many
millions. The delay too, is a factor that should
not be disregarded. So, in my submission, it would
be wholly inappropriate to transfer into this
context the approach that was taken to the issue of
relief in In Re Wood.

. My friend, Mr Bell, sought to question the
analogy of the statutory provisions on deaths by
saying it should not be pushed too far. Well, in
my submission, we are not seeking to push it as far

as he was suggesting. In his written outline he
says it would follow, if that analogy were applied,
that because Mr Sykes was disqualified, then the
Election should be regarded as wholly failing.
But, of course, we were only using the analogy in
the case where the elected candidate is the person
who is disqualified.
For those reasons, if it please the Court, the

Commission submits that the proper course here, if
Mr Cleary is found to be disqualified, is to
declare the Election wholly void from which it
would follow under the constitutional and statutory
provisions that there would be a new Election for
the electorate of Wills. If, of course, the
second, third and fourth respondents are also

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disqualified, or if any one of them is, as well as

Mr Cleary, the case is so much the stronger. If it
please the Court.

MASON CJ: Thank you, Mr Rose.	Yes, Mr Solicitor.
MR GRIFFITH:	If the Court pleases, apart from the problems

of not using the first person plural, it seems we
are able to argue and carry our books to the
rostrum with more limited resources than usual.
But we have given to the Court two volumes of
materials which we regard as common property and
been referred to by other counsel who have
addressed the Court, and at this stage if I may
treat our written submissions which we delivered to
the Court on Tuesday as being read and just
supplement them in the short time available.
On the issue of the approach to the

construction of section 44 of the Constitution, my
learned friend, Mr Charles, referred, of course, to
the Chief Justice in In Re Webster, 132 CLR 279,
where the Chief Justice said:
There being penal consequences of its breach, the paragraph should receive a strict construction.

I submit that that is not the relevant purpose of
the disqualification provisions of section 44 as a
whole. It is not penal in the sense of punishing a wrong, a person who is disqualified. More, it is
to protect the Parliament, we submit, and the
disqualification provision should be interpreted,
we submit, in accordance with this clear purpose.
In that connection, may I give the Court a

brief reference to a Privy Council decision of
Mohamed Kariapper v Wijesinha, (1968) AC 717. It
is not on our list, and I hand a short extract of

the relevant page to the Court. At page 736 in a

case concerning an appeal to the Judicial Committee
from a decision of the Supreme Court of Ceylon
concerning legislation which imposed civic
disabilities on named persons in respect of whom a
commission of inquiry had found allegations of
bribery proved to the extent of providing for
vacation of their seats, the Judicial Committee
said -
more importantly the principal purpose which
they serve is clearly enough not to punish but
to keep public life clean for the public
good ••••. The particular task of the board is,
however, to decide whether the law vacating
the appellant's seat is a valid law and in
their Lordships' opinion it would be wrong to

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describe that law as one for the punishment of
a member whose seat is vacated.

We submit this is an apt approach in respect of the
construction of section 44.
We would disagree with my learned friend,

Mr Charles' submissions, paragraphs 11 and 12 of
his written submissions, and in particular deny the
relevance of the references to the various
industrial court decisions there referred to. It
is one thing to construe union rules in a way that
if there is ambiguity, produces a particular
result, but we submit that this is not a relevant
assistance in the issue of this Court corning for
the first time in construing the difficult
provisions of section 44.
We have, in our materials which we have given

to the Court, given some material on the historical
background of this provision. Of course, the
historical background does influence the words used
in the Constitution and throws up the problems in
giving them an effective and appropriate meaning at
the present time. The disqualifications, of
course, find their origins in the struggles between
Parliament and the Crown going back to the late

17th and 18th centuries. My learned friends have
already referred to part of our materials, in
particular Erskine May, the 16th edition, which
appears in volume two of our materials at page 216

to page 237. In our submissions in paragraph 3.1,
we set out the text of the House of Commons
Disqualification Act 1957 re-enacted as the House
of Commons Disqualification Act 1975 therein
referred to at page 284 to page 290 in volume two.
Of course, with the Constitution provision, there is not the same freedom in Australia to do what, after the 1941 report, was finally done in
1957 and re-enacted in 1975 and provide a

convenient statutory restatement of the provision
political and non-political officers as to
in respect of disqualification, both picking up the various
normal provision of disqualification in respect of
their circumstances in respect to disqualification.
It is curious that some four days after I was

born during the war, the House of Commons were able
to publish at a cost of 256 pounds the report which
appears as volume one of our materials dealing with
the issue of office of profit. There are some
interesting discussions. Apart from the question
of the Chiltern Hundreds, one sees a reference in

respect of the clergy on pages xxxiv to xxxv. The
Archbishop of Canterbury made written submissions

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which appears on page 174, appendix 7, making a
submission on behalf of both the Anglican clergy
and on behalf of the Catholic clergy.
Supposing that they would only have regard to

their own congregations, the Anglican clergy, who
were disqualified, have regard to all parishioners
in their duties, and that was regarded by the
archbishop as a reason for the disqualification to
continue. The report reported that the
disqualification for Catholic clergy should
continue because they were sure that Catholic
clergy would not wish to serve in the House of
Commons.

Be that as it may, one does see firstly an

historical statement of Sir William Holdsworth at
page 163 summarizing the historical position which
is also summarized in the report itself leading to
its recommendations. The Lord Chancellor appeared
and made a written and also an oral submission to
the committee. One sees on page 92 he made
specific reference to section 64 of the
Constitution and at that page recommended:
All I was saying was that for my own part I
would rather like to see us, as it were the
Mother Country, in this respect borrowing from
the Dominions, because it is entirely
consistent with our own principles.

dealing with our requirement that Ministers be
regarded as required to have parliamentary office.
He formulates on page 93, left-hand column, at

about point 7 two tests. He says:
They are much easier to formulate than to
apply. The first and most important is the
question: Is the nature of the office one
which makes it desirable that the holder

should be as far removed as possible from

partisanship ••••• The second is this: Is the
discharge of the office reasonably consistent
with faithful service to a constituency and to
the House?
political activity or influence or pressure or

The report then made its recommendations which have
already been referred to, and the Court has already
been referred to the particular parts making it
quite clear that the committee, as on page xxix,
took it as read for the purpose of their inquiry of
the basic principle of exclusion of civil servants
from all active or public participation. The
reasons for this were discussed by the committee
earlier in their report.

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The last matter of reference to this report is that it does summarize conveniently the consequence
of the operation of the Statute of Anne of 1707,
sections 24 and 25. That is set out on pages 212
and 213. There is an interesting anecdotal
description by the vice chancellor in his evidence
with respect to the position of Gladstone, because
Gladstone, on taking further office in the
ministry, was advised by the then Lord Chancellor
that he was unable to again appear in Parliament
without re-election.
One sees on page 90 of the evidence of the

Lord Chancellor a description of the consequence
that once he accepted further ministerial office,
Mr Gladstone as Prime Minister never again entered
the House until after the next election when he was
of course defeated by Disraeli, but of course that
anachronism of a requirement of members of the
ministry who accepted a new ministry because of the
operation of section 25 to again submit themselves
from election has now long been abrogated by
statute and is of course not a concern here.

But the object of all this and the

recommendations was to limit the influence of the
Crown over the members of Parliament and as time
developed this disqualification was understood to
reflect, we submit, the incompatibility of public
office with membership of Parliament, including a
possibility of fulfilling parliamentary duties if
you hold public service office. Other elements
entering the consideration, of course, the
undesirability of drawing two lots of public sector
remuneration, but more obvious is the difficulty of
incompatibility between the loyalty of an officer
of the public service to his Minister and his
executive and responsibilities of parliamentary
office.

The neutrality of the public service is also a

matter which is very much underpinning this
principle of exclusion of public servants from
Parliament because of the fact that it is regarded as incompatible with public service office for
there to be a political service.
It is accepted, and we refer to it in

paragraphs 3 and 4 of our submissions, that this
notion of profit under the Crown is in many
respects antiquated. This developed at a time, of
course, when many significant public appointments
came directly from the Crown and many were named
offices which now, perhaps, have rather quaint
names: Chiltern Hundreds and the like; certainly
offices which were related to a different social
structure reflecting the age of chivalry, royal

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households and so on. Some offices, of course,
could be bought and sold.
Now the public sector employment is organized

on an entirely different basis, usually regulated
by statute and appointment based on merit, it must
be the case that the old terminology bears little
relevance to contemporary public sector employment.
We have in our paragraph 3 given various
references, including to the committee report I
have just referred to and to reports in Australia
where public examinations have found the problem of
disqualifications for parliamentary office very
difficult and something which recommended different
approaches or reform and, indeed, in Australia that

has included constitutional reform. I will not
take the Court to the various committees, both
parliamentary and non-parliamentary, that have made
reports to that effect.
However, absent constitutional amendment, it

is not entirely possible to discard the accepted
application of the principle in construing

section 44 of the Constitution. We would submit,
even on the most narrow view of what constitutes an
office of profit under the Crown, it is clearly and
always been understood as excluding permanent

officers of executive departments. We submit that
this is too well entrenched now to be discarded.
Maitland, for example, in his lectures - and we extract the relevant page at page 342 of volume two
of our materials - says:
the subordinate officers of the civil service
are excluded by law, and the consequence is
that we have a permanent civil service, a body
of civil servants unidentified with any
particular policy -

and we submit that it is clear that public service
officers in executive departments is incompatible

with parliamentary service. We spell out those
reasons in paragraph 4.1 of the outline and it is
submitted that the accepted understanding of the
disqualification is, for these various historical
reasons which are fully supported by the materials
which we include in our written submission, too
well established now to be discarded.
Further, we say that there is nothing novel about finding that a person is disqualified from Parliament by virtue of holding an office of
profit. In the United Kingdom, questions of
disqualifications were determined by the House of committee and we extract in our materials - I will
not refer to volume two each time because all the

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large number of cases where a finding has been made, including, of course, the case concerning Sir Bryan O'Loghlen who vacated his seat in the
reference from now on will be to volume two -
pages 330 to 340 have an extract from Rogers on
House of Commons by accepting office as Attorney-
General for the colony of Victoria.
The proceedings in respect of his position we

include in our materials at page 292 to page 435, but that is an example of a case of acceptance of
office in a colony. A different legislative seat
was regarded as justifying exclusion from the House
of Commons as an office of profit incompatible for
the purpose for the purpose of the House of Commons
regime.

There are Australian examples. We refer to

Clydesdale v Hughes which is a Western Australian
decision, (1934) 36 WALR 73. I will not take the
Court in details of that decision but that
concerned the office of a member of the
Lotteries Commission of Western Australia and the
members received remuneration for their service out
of the gross subscriptions to the lotteries
conducted by the Commission and it was held that
that was a disqualifying office for the purpose of
the Legislative Council Western Australia and the
informant was entitled to recover 200 pounds being
successful in the information alleging
disqualification.
The Court has already been taken to the

Queensland case of Bow.man v Hood which is reported
in 1899 and is extracted in full in page 366 to

page 372 of our materials. We have other citations
in our materials.
On the issue of whether or not there has to be

a separate office, we submit that the suggestion

that there must be some real or notional office
that exists separately or independently from the
whole of the office is now quite inapt. It does
not take any account of the present nature of
public sector employment or in the way in which
concept of office and officer are applied in public
sector appointment.
The true notion, we submit, of office is that

which was defined sufficiently by Blackstone and we
extract from volume two of his commentaries in our
materials at page 215 his statement which is:
A right to exercise a public or private employment, and the fees and emoluments
thereunto belonging.

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That is, of course, a rather old fashioned way of
referring to entitlement to salary and other
benefits but we submit the essence is the same, and
on this approach we suggest to the Court that the
legislation in respect of the respondent, Cleary,
in this matter which the Court has been taken to in
some detail - and I will not carry over the same
material again in further detail - but we submit
that continues the same concept of public
employment by way of office.
Section 3, of course, of the Teaching Service Act 1981, provides that teachers are employed by
Her Majesty in the teaching service and the
definition in section 2 of "teacher" as meaning
"permanent officers employed in the teaching
service" incorporates the notions of permanence and
the notion of officer, the officer the person who
holds an office, and in effect the teacher is a
permanent officer who holds office as a teacher.
The relevant statutory alterations to create

the teaching service that the Court have been
referred to in our submission merely goes to
confirm again this aspect of office and we say

office under the Crown. The fact that it is
referred to as an office of teaching service under
the Crown rather than an office of public service
under the Crown makes no relevant difference. The
operation is to continue teachers as permanent
officers who hold office as teachers, and it
matters not, I would submit, that they are not
attached or appointed to any particular office with
some particular name.
There is one issue that, as a non participant

attention and that is there seems to be a certain
in the settling of the case which came to the

inconsistency on paragraph 19 on page 21 of the
case stated where, as my learned friend,
Mr Charles, referred the Court to, it stated that:
At no time on or after 30 January 1992 was the
First Respondent attached to, nor did he have any entitlement to, any particular or
designated position. During this time, he was
described by the employer as an "unattached"
but "allocated" officer.

When one turns over to page 25, one sees that it is
stated that from 28 February 1992 until
16 April 1992, namely the date of resignation:

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the First Respondent was a secondary teacher,
assistant class, allocated to Hoppers Crossing
Secondary School -

We merely note that it would seem, if one tries to
reconcile those provisions, that if what is stated
in the case stated, and in fact the first
respondent was a person allocated as an allocated
officer to this Hoppers Crossing Secondary School
with the classification "secondary teacher,
assistant class", but one who was on a year's leave
without pay, pursuant to the statutory provisions
and the various gazettals and regulations made,
which are contained in particularly volume 2 of the
materials.
I am afraid we cannot take that issue any

further, but we do refer to it as indicating that
there would, in this case, both by reference to the
text and also by reference to the facts, seem to be
no reason other than to say that the respondent,
Cleary, was an officer of the teaching service.
We would like also to make reference, without taking the Court to particular sections which seem
to confirm this concept of office and officers
being held by teachers within the Act, and may I
refer the Court briefly to sections 35,55,62,62A
and 63, as merely examples of dealing with the way
in which the teachers, within the teacher service,
are disposed of in respect of their appointment, by
reference to offices and by reference we say to
those persons holding office under the Crown.
My learned friend, Mr Charles, referred to

Edwards v Clinch, many of the speeches of the House
of Lords in respect of that particular decision,
which was, of course, a revenue case, and we would
submit, and I think Your Honour Justice Brennan did
put it to my learned friend, Mr Charles, that that
decision in its entirety concerned the

interpretation of taxation legislation, which
referred to any office or employment. So the issue
was whether or not there was office or employment, and it is not surprising then, when one is dealing
with that distinction, one should approach it in
the sort of way that various of Their Lordships
did, and we submit that there is no relevant
assistance in respect of dealing with the question
of office of profit as the compendious description
not dealing with issues of contradistinction
between office and employment.
Mr learned friend, Mr Fajgenbaum, I think referred sufficiently to the discussion of the
Indian decisions in the Campbell Report. We give
citations in paragraph 5.2 of our submissions and

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that appears in our materials pages 361 to 364, but

we do join with Mr Fajgenbaum in submitting to the Court that the Indian distinction which was raised
in some Indian cases, as discussed by
Professor Campbell, really seemed to have no
relevant message for construction of the provision
in section 44(iv) of the Constitution.
It is our submission that the fact that the

first respondent had taken leave without pay did
not relieve him of a disqualification, and, of
course, the profit normally attached and, we
submit, that the fact that it was leave taken
without pay under, particularly, statutory
provisions which entitled the respondent to return
to his paid office at the end of the agreed term of
leave, does not alter the nature of the office
itself from being designated as an office of
profit, for the sole reason that he was not drawing
pay at the relevant time during the election
period.
My learned friend, Mr Fajgenbaum, made

reference to the Chiltern Hundreds, the stewardship
of the Chiltern Hundreds, used as the device to
obtain release in lieu of resignation from the

House of Commons. That is discussed by May in our
materials extracts, page 231 to 233, and also in
the House of Commons Report volume 1 of our
materials at pages 29, 128 to 129 and 152 to 154.
But these offices are regarded as designated
offices of profit although, of course, it is almost
since the time, when memory runneth not to the
contrary, that there have been any emoluments at
all from those offices.
On the issue of not drawing pay, may I refer

the Court briefly to Whittle Harvey's Case. This
was a determination by the House of Commons in 1839
which is dealt with in our materials at page 273 to
page 391. Mr Harvey had been appointed Registrar

of Hackney Carriages, but it appears from his
statement in the debate that· he had not accepted
the salary of his office, and the Attorney-General
was of the opinion this made no difference. The
select committee to which his case was referred
report in their opinion that his office was a new
office of profit under the Crown within the true
intent and meaning of the statute of 1707, and
Mr Harvey lost his seat, it was vacated. The House
agreed to the report and ordered the issue of a new
writ, so one will see, firstly, at page 373 and
then also at pages 374 to 384 the parliamentary
debates.
Bowman v Hood was a similar example in our materials at page 366 to page 372, where there had

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not been any draw in capacity of membership of the
board of stock •.... under the Diseases in Stock Act
1986, and none the less the tribunal, with the
judges direction, and also expressing its final
decision declared the respondent was disqualified
from being elected.
Leave without pay, of course, does not

constitute resignation. An officer who is merely
on leave by definition has not vacated office, and
this is established by the various provisions in
respect of leave without pay to which my learned
friend, Mr Charles, referred the Court in volume 2
of the case stated book.
We contrast the issue of expenses in Bowman v

Hood. The respondent was also a member of the
Central Rabbit Board and members there were
entitled to receive, I think it was one pound a day
travel expenses when absent from home and
Justice Real said in argument that he could not
make any profit out of that except by doing what
was wrong which cannot be assumed. This is at page 277. And he said he was only entitled to
necessary expenses. So reasonable expenses are to
be distinguished, we submit, where there is no
element of profit from the case of where one
receives financial or other reward by way of
benefit.
It was apprehended, and we did refer in

paragraph 18, the last paragraph of our
submissions, that there may be some argument with
respect to the expenses received by Rawson, who is
a respondent in this matter but has not appeared,
received by way of expense allowance as a Coburg
councillor. It seems that the argument has not
picked that up but we have made a submission that
as an expense allowance, we would submit, there is
no difficulty in contending that for that reason
there was an office of profit.

DEANE J: She has disappeared from this case, has she not?
MR GRIFFITH:	She seems to have, Your Honour. We were informed that one of the parties wished to rely on
it, perhaps for the election issue, I do not know, Your Honour, but that is why we put it in. But
whether she is here or not it could be argued but
it seems it is not. One does not, I think,
consider a municipal council the Crown; we would
argue that it was not but that is the second line
of argument. But if we could leave it at that and
just refer to that as an example of an expense not
being an office of profit by way of its receipt.

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Paragraph 7 of our submission deals with the question of State offices and our submission is the
disqualification is not confined to persons holding
office under the Crown in right of the

Commonwealth. We say it extends to persons holding
office under the Crown, one could perhaps say, in
any part of the Queen's dominions. That is how it
worked in O'Loghlen's case, in reverse, into
Victoria from England. But on any view, at least, we would submit in the Commonwealth this is in
accordance with the view taken by Quick and Garran
in the passage at page 492 which appears in
page 204 of our materials and we have also cited it
in paragraph 7 of our summary and it would seem to
be the view taken, as we mentioned, by the House of
Commons in the O'Loghlen case.
My learned friend, Mr Fajgenbaum dealt

sufficiently with the assistance to be derived from
the suffix to section 44 of the Constitution,
dealing, in particular, in its first phrase with:
the offices of any of the Queen's Ministers of
State for the Commonwealth -

We have included in our materials, pages 56 and 57,
the debate, particularly what Sir John Forrest had
to say and we would submit that although, of
course, one can say, "Well, this exception does not
refer to the territories.", that is not surprising
because it is clearly inserted for the purpose of
more operating in the transitional period to ensure
a first strong Parliament for the Commonwealth
rather than being concerned with continuing
operation, it obviously being assumed that State
Ministers will not choose, once the Commonwealth
settled down, to, ••••. a matter of possibility, to
be both State and Commonwealth Ministers and
members of the Executive of each.
But we do submit that it does underline the

natural construction which one makes of

section 44(iv) to regard the limitation, and for
the reasons of policy that we have referred to,
appropriately so, is not limited to the question of
federal offices of profit. The office in the
public service of a State, we submit, is
incompatible with membership of the Federal
Parliament and perhaps almost no less so than
office in the public service in the Commonwealth.
Public service office would interfere or prevent fulfilment of duties as a member of Parliament and
a State public servant owes loyalty to the
Government in the State and there is obviously a
real risk of conflict between the loyalty.
Also, of course, once one starts submitting,

as perhaps, I think at one stage my learned friend,

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Mr Charles, does that it is a matter of really
degree as to where the line may be drawn and I
think his submissions were to the thrust that one
could be more generous in drawing the line in a
State, we submit that that is really an impossible
task. How far up the chain does one go? Does one
exclude the public servants at the dustman level
and include those who are at some designated spot
higher in a supposed level of hierarchy.
We would also refer to the matter that Your Honour Justice Dawson referred to, the contrast in section 44(v) referring to public
services of the Commonwealth with the expression in
paragraph (iv) of "office of profit under the
Crown" which would seem to confirm a wider
operation in the public service of the Commonwealth
to be included with the noun "Crown" in
paragraph (iv).
This issue of appropriateness was briefly

considered by the Western Australian Law Reform
Committee in its report on disqualification for
membership of Parliament. This appears in our
materials in volume two at page 281 where the view
was expressed that Commonwealth offices should be
excluded from State Parliament because:
The duties of such person would prevent them
giving proper attention to their duties as

members of Parliament - and it was perceived that there would be a conflict
of interest.
The Constitutional committee in its final report put the principle which appears in volume
·two page 319 of the materials in paragraph 4.860 in
this way:
The principle on which any amendment

should be based is that, apart from the
member's salary and reimbursement of
reasonable expenses, a member of Parliament
should not receive remuneration from the Crown
in right of the Commonwealth, a State or a
Territory. The prohibition is to avoid
'double-dipping', and the possibility or
appearance of divided loyalty. A person who
is a member of or employed by such an
authority, body, office or corporation should
be disqualified from being a member of
Parliament.
We turn now to the issue of relevant time and

the Court will see from paragraph 1 of our
submissions our approach is to submit firstly that

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the first respondent, Cleary, does hold an office
of profit within section 44, or did hold one, but
we would submit that at the relevant time for the
purposes of the constitutional prohibition, he had

ceased to have that office. My learned friend,
Mr Charles, was generous enough to adopt in
prospect our submissions on that matter and perhaps
should be given an opportunity to withdraw that
after he hears their oral elucidation but I will
try and be rather short and not detract anything from the substance of our submissions which have
received his favour.
Section 44 of course, could have several

meanings but the most obvious would seem to be that
any person with any of the characteristics
specified in (i) to (v), that any time during the
election process is disqualified. I will not deal
with the other issue of a person who acquires such
disqualifying characteristics after qualification
dealing with vacating of office.
It could mean that a person is disqualified

from participating in an election or it could mean
that such persons are only disqualified from being
declared elected, although perhaps the
Chief Justice was not thinking about this as being
a point he was deciding authoritatively, but
in Re Webster, 132 CLR 276, the Chief Justice said:
The poll for the senate, held on

18th May 1974, was declared on 25th June 1974.
Senator Webster was then elected to the Senate and has sat in the Senate as a senator since
9th July 1974, which was the first sitting day
of the Senate following that election.

It would seem then that the Chief Justice took the
'date of declaration of the poll as a significant
date, being the date on which Senator Webster was
elected to the Senate. Professor Lane in the

Australian Federal Ssystem, we have a reference in the second edition at page 48, which was extracted
as page 437 of our material says:
An election is held; in due course the poll
is declared and at this point the senator or
member is "chosen", as s.44 has it, that is,
he has been elected; usually there will be
yet a third stage, namely, when the senator or
member has an opportunity of "sitting" in the
Chamber -sees. 44 again- on the first day
that the Chamber sits after the poll has been
declared.

That is written in the usual way of
Professor Lane's prose but we submit to the Court

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it would seem there that the learned author is
suggesting that it is at the time of declaration
that one considers the operation of section 44.
The fact that section 179(2) provides that:
if only one candidate is nominated, the
Divisional Returning Officer shall declare
that candidate duly elected -

is no argument against our submission, we submit.
The side note to that section indicates the

declaration ·is going to be made on the same day. I
suppose in theory, you could say if there is a
problem we could adjourn for an hour or two and let
someone run off and put in your resignation, but
perhaps that observation is by the by. We would
say this is, as in any other situation of
disqualification, something to be considered as
whether or not section 44 applies; if it does
apply, what is the relevant time for application.
If there is an immediate declaration because

there is no other candidate and at that time, there
is a disqualification under, for example,
section 44(v), well, that is it, in our submission, vacancy in the Senate if, on the date of the joint just as it would be in the case of filling a casual
resolutions of State Parliaments or by action by
the governor as provided under the Constitution, a
particular person being selected for Senate office

had a disqualification. One in each case has to
select the relevant time and then consider the
person's position by reference to the relevant
facts, we say, at that time.
My learned friend, Mr Fajgenbaum, referred the

Court briefly to what Justice Stephens said in
McKinlay, 135 CLR 1 at page 56. But in the same
passage that my learned friend there referred to,

how His Honour indicated it is for Parliament to and I will not go through the passage indicating
provide for the innumerable details of the
electoral system, His Honour said -
there is scope for variety and no one formula
can preempt the field as alone consistent with
representative democracy.

We say that is the appropriate approach here. The
detailed application of the constitutional
disqualification, and in particular how best to
conduct elections in the light of the
disqualification and, of course, consistently with
the constitutional requirement, we submit, is best

left for the Parliament. Parliament could provide
for qualification at nomination, just as at the

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same time it is now specifically provided for
qualification of citizenship at nomination, but it
has not done so. It could also make a different
provision for the declaration, for example, in a

case where only one candidate is elected. It could
be something postponed until the day after polling
day or something like that.
But we submit that it is not necessary for the

Court to do any more work than is necessary to give
section 44 an appropriate operation, and one that
does not create more mischief than that mischief
which it is directed to deal with, in the
contemplation that the mechanical aspects of
elections must be left to a considerable extent for
parliamentary procedures to be provided as they are provided in the Electoral Act. Of course, there is

ultimately a supervisory role in this Court. If
the Election here is declared void, a new Election
will have to occur. But there is a role for the
operation of the electoral provisions, particularly
of the Electoral Act, we would submit, in respect
to this process.
If I could say something shortly about the

mechanics of declaration of the poll and the return
of the writ. It is clear from section 284 of the
Commonwealth Electoral Act that the time at which
the candidate is chosen, we submit, is when the
poll is declared, rather than the later time when

the writ is returned. Section 284 requires -
the divisional returning officer - who is also defined as a ORO in the definition
provision -
at the place of nomination, publicly declare
the name of the candidate -

who has been elected.

declaration of the poll that a candidate is able to It is only after the
say that he or she has been chosen to be the

member. So that whatever your sense of optimism up
to or during polling day or even during the count,
we submit that a person is not chosen before the
declaration of the poll, even if they have a fairly
good idea that the numbers are going their way.

McHUGH J:

But in ordinary speech you do not say that the

government was chosen over 20 or 30 days depending upon the number of writs, when they were declared.
You say it was chosen on a particular day, the day
the people voted.

MR GRIFFITH: Well, Your Honour, perhaps one would say it

was elected; one would not use chosen at all. But,

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Your Honour, if it was a cliff-hanger and one were handing on the 21st day on a recount and the last seat was 12 votes, Your Honour, then that would be where it happened.
Now when one is dealing with it seat by seat,

Your Honour, we submit that that is really what happens in each .seat, whether it is a cliff-hanger
or not; one is there watching the count and one can
get the drift as a scrutineer, but at the end of
the day one is not chosen, you have not made it,
until the returning officer makes the formal
announcement required under the Act immediately
after the end of the count, that that is the
result. And we submit, Your Honour, that if one
looks at it on an electorate by electorate basis,
which is appropriate, that is the process, but we would submit that, in answer to Your Honour, that
Your Honour's approach is to look at the
aggregation and to say, what is the result? Well,
Your Honour, the result emerges out of election
day, but that is because one can say that there are
enough results in to know, but for each candidate,
Your Honour, that candidate is not chosen; all he
knows, Your Honour, or she knows, is that they are
on a winner if they seem to be ahead; if they are
not, well they wait for the counting and recounting
to go until it emerges. Perhaps it would affect
the odds if one was placing bets after an election
day before declaration, but we would submit,
Your Honour, it does not affect the result that the
choosing in the electoral sense occurs when it is
formally declared by the returning officer in
performance of their duty.

McHUGH J: But that records a result, it is not the

choosing. The Constitution contemplates a
situation where you could have first past the post

voting. It would be odd if somebody could stand
for election, although they were incapable of being
chosen, and what happens after that? The person

resigns or does not resign?

MR GRIFFITH: Yes, that is what happens, Your Honour, as

here; Cleary either resigned or did not resign. He
did, we submit. It is a question, Your Honour, of
getting a qualified candidate, we submit, at the
time of declaration. One cannot exhaustively deal
with the question of qualification operation of
section 44 before the election. It would be
possible to have more provisions in an attempt to
deal with it, Your Honour, in the Electoral Act; it
has some, the requirement on the nomination form to
make a declaration that one is an Australian
citizen, et cetera but, Your Honour, we would
submit that the sort of issue that has now arisen
some months after the election is not the sort of

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thing by its nature that can be authoritatively
determined before a nomination. This sort of issue
here is one that needs a decision of this Court to
determine it, Your Honour; it is not the sort of
thing that one can say, well, you must get that
right by nomination, otherwise that is the end of
your capacity to be a candidate.

DEANE J: What is the provision, Mr Solicitor, that makes it

possible for voting to take place after the day
appointed for polling? For example where there is
a flood, they sometimes vote in a small part of the
electorate after everybody else has voted.

MR GRIFFITH:	Your Honour, as I have no junior, could I ask counsel for the Commission perhaps to indicate in
due course. I think there is such a provision,
yes, Your Honour, but basically of course - - -

DEANE J:

I do not know if there is something.

I know it

happens.

MR GRIFFITH: But of course, postal voting and absentee

voting have to be before -

DEANE J: Except normally they have to be exercised before

the day set as polling day.

MR GRIFFITH:

241, Your Honours, lets you adjourn from day

to day, so it seems like it is a daily thing. In
the case of:
(a) riot or open violence; or
(b) storm, tempest, flood or an occurrence of
a like kind.

DEANE J: That is the one, yes.

MR GRIFFITH:

Your Honour, we would say the choosing would

still occur after that.

BRENNAN J:

Mr Solicitor, the implication of that is that

the Secretary for the Treasury could stand for
election without resigning and then make up his
mind whether he wished to have a seat or retain his
office, and undo the whole poll if he chose the
latter.

MR GRIFFITH: Dealing with possibilities, yes, Your Honour.

BRENNAN J:	It scarcely seems to be the intent for people choosing their representative, does it?
MR GRIFFITH:	Your Honour, one could say that is not how it

seems to work. How it seems to come up is this
sort of case where you have many bona fide

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candidates and you have an issue taken, as the
petitioner is entitled to, and the Court
considering the relevant qualifications of each
having regard to section 44. I appreciate the
implication that the constitutional purpose of
section 44 is not well served by the sort of
example Your Honour gives, but at least the
operation of section 44 then would ensure the right
result, namely that that person did not return to Parliament holding an inconsistent office. It is

not the best way of doing it. It costs $360,000,
we are told, if a person so indulged themselves.

BRENNAN J: Free kick.

MR GRIFFITH: Free kick, I suppose, Your Honour. It might

be that the petition might be a free kick but you

would not get many votes. I think the point I was
going to make in further answer if I could to
Justice McHugh is that it is appreciated that there
is really a choice of whether one regards the whole
process of choosing as one which passes over the
whole period from nomination, whether one says,
"No, it's on polling day", which I think was the
thrust of Your Honour's first question to me, or

whether it is at the declaration. We were
submitting it cannot be any later than that.

McHUGH J: Perhaps it is a process: shall be incapable of

being chosen.

MR GRIFFITH:

Your Honour, all I can say to that is, yes,

that is a possible construction, and what I am
seeking to say, Your Honour, given that there would
seem to be a choice, which is that which vindicates a constitutional purpose but works in a way that is
less disruptive of constitutional operation of
securing a parliament directly chosen by the
people.

Now, an example such as Justice Brennan's could say, "That does not seem to be the best way
of going about it", but we submit, Your Honours, it
is appropriate to have regard to the everyday
operation of which this case before the Court is a
particular example, perhaps in - - -

McHUGH J: But it does not seem consistent with a

constitutional purpose of section 24 that people
cast their votes and they do not know really what
effect their vote is going to have because they do
not know whether somebody might decide at his whim,
or her whim, to revoke citizenship or renounce
citizenship.

MR GRIFFITH: Quite so, Your Honour, but in this case they

did not know either, that the petitioner, and

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arguably at least three respondents, Your Honour,
were disqualified. The candidates who got over
90 per cent of the votes have been argued before

this Court as all disqualified. Now, Your Honour,
if one had an ambulatory mechanism of transitive
operation for the chosen, that would still be the
case, Your Honour, and it is always the case in
elections that you do not have a warranty, that all
the candidates are qualified, even starting at the
earlier date and continuing through, and the whole
process of the procedures under the Act,
Your Honour, is that the returning officer really
has no way in which to deal with it.

McHUGH J: Except people have got to sign their declaration

and say that they are eligible. I do not know what
the effect of it would be of that - what is it,
section 179, is it, what is the section in that
Commonwealth Electoral Act, where you say that you
are eligible to be elected?

MR GRIFFITH: Yes, just something you have to do,

Your Honour, as I understand it.

McHUGH J:	I know, but you have got to make a statutory declaration to that effect, do you not?
MR GRIFFITH:	Your Honour, here we have claimants all of

whom bona fide thought they were all right.

MCHUGH J: Yes.

MR GRIFFITH:

And arguments •.... before the Court that

constitutionally they are, so even if it was known

there was an argument about it, Your Honour, they
could have freely made the declaration one
supposes. Here it was innocently made as well.
So, Your Honour, as a ••••. operation we submit

that the Electoral Act and the operation of the
electoral system cannot secure that peace of mind

of all voters knowing that all candidates are
qualified. Fortunately it is only every so often,
Your Honour, that one has a Court of Disputed

Returns where the matter is taken up. But we would
submit, Your Honour, you are probably not going to
cut out all that much by having the entire
continuous process construction as against the date

of declaration. I mean, even in this case,
Your Honour, on the question of office of profit,
that perhaps is something you can deal with. Under paragraph (v) "Pecuniary interests", you could quit
yourself of pecuniary interests. But those are
issues arising under paragraph (i), Your Honour, it
would seem to be not the sort of thing that you are going to resolve in a few days when you see you are
going to make it.

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It is accepted, Your Honour, there is this

aspect of really constitutional course for this
Court, either construction is tenable, the question
is which is appropriate and the Attorney intervenes
to plump for the time when he says something
happens, when you get chosen and you are declared
the winner and you are considered by reference to
that.

When the writ is returned to the

Governor-General or the Speaker it is forwarded to
the Clerk of the House, in the case of the House of Representatives, and laid on the table by the Clerk
and the member then sworn in in accordance with
section 42 of the Constitution and the appropriate
adapted oath which is provided in the schedule to
the Constitution. So, return of the writ - - -

DEANE J: Could I divert you and possibly this question has

been asked of Mr Rose, but looking at page 282 of
the Commonwealth Electoral Act print I have got,
and the form that a candidate has to set out,
assume you would be right on the first limb, well
then, Mr Cleary should have said, "No, I am incapable of being chosen", what would have
happened then?

MR GRIFFITH:

Your Honour, one would suppose if he said,

"No" the returning officer would have rejected it.
The application on its face, he would say, it
indicated that the person - - -

DEANE J: Well, does that mean that he was not entitled to

have his nomination accepted?

MR GRIFFITH:

Not at all, Your Honour, because it seems that

there is no process under the Act for the returning
6fficer to investigate in any way whether or not
there is qualification.

DEANE J: But the point I am making is, if he is entitled to

stand, notwithstanding that he holds an office of
profit, if your first leg be accepted -

MR GRIFFITH:	I am sorry, Your Honour.
DEANE J:	- - - if he ticked that "No", would the returning

officers be bound to accept it?

MR GRIFFITH:

Your Honour, if I can unpick myself from the

double negative, we would say someone in Cleary's
position could tick "Yes" because he knows he can
resign.

DEANE J: Yes, I can see the force of that. What if he is

an undischarged bankrupt and is hoping that he will

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be discharged the day before the declaration of the
poll?

MR GRIFFITH: Well, Your Honour, this is a subjective

declaration anyway, so that one can answer it
honestly, so that there is a double level of
answer, in effect, Your Honour, and that is why all
the returning officer does is to sort of check it

has got the right answers. He does not go any
further.
Your Honour, section 172(1) says:
Subject to subsection (2), a nomination shall
be rejected by the officer to whom it is made
if, and only if, the provisions of section
166,167,170 or 171 have not been complied with
in relation to the nomination.

And then, subsection (2) 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 •.... have been
substantially complied with.

Now, it still leaves a bit of a no-man's land,
Your Honour, if the returning officer knows as a
by virtue of section 44.
fact that the person nominating is Secretary of the person

DEANE J: Except, probably a great deal does not turn on it

for constitutional purposes, but I really do not
see how he could tick "yes" and say, "I am not
incapable of being chosen or of sitting", if
section 44 says he is incapable of being chosen.

MR GRIFFITH: Well, Your Honour, if he was a man of greater

means of being an unattached teacher and could have
gone to my learned friend, Mr Charles, and got
silk's advice, he could well have been told, if my
learned friend's advice was consistent with his
submissions, that he was perfectly all right. And
this is the problem about these qualifications; one
can never be sure.

DEANE J: Yes, except I doubt if Mr Charles would have told

him, if he asked, "I am now filling in this form,
am I incapable of being chosen or of sitting as a
member of the House of Representatives?", that
notwithstanding that you hold an office of profit
under the Crown, you are presently capable, because
you might stop yourself from being incapable.

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MR GRIFFITH: Narrowed to that issue, Your Honour,

well - - -

DEANE J: But as I say, it probably does not help m~ch in

the constitutional argument, but it does seem to
indicate the draftsman of this Act thought
incapable was at the commencement of the process.

MR GRIFFITH:	Your Honour, I think we have attached Garran's opinion, where he is said it extended State
services and made it clear that he thought that was
about the time as well, but that is the issue,
Your Honour.

McHUGH J: What about section 43 of the Constitution; does

it mean that a member of the Senate can stand for
the Representatives?

MR GRIFFITH:	No, Your Honour; our submission is only to section 44, dealing with the question of - - -
McHUGH J:	Why not?
MR GRIFFITH:	Your Honour, because that is a different

situation. One could have a person a member of one
house, Your Honour, because of the basic principle
we would be going back to the early English
constitutional history, Your Honour, of not being
able to be a member of both Houses.

McHUGH J: But on your argument, why could not a Senator

stand for the Representatives and just before the
declaration of the poll, resign as a Senator?

MR GRIFFITH:

Your Honour, I have argued nothing about

section 43.

McHUGH J;

I know.

MR GRIFFITH:

I do not desire to, Your Honour. Your Honour's point: if it is one, if it is the

I see

other. We would agree very much with my learned
friend Mr Bell's view that you have to try and

make, say, section 44(i) work. I know it is
different from (iv) but you have got to try and
make (iv) work. well. It is a question,
Your Honour, given that there is a constitutional
purpose, what is the best way to serve that purpose
without being destructive? I suppose it does not
take much imagination to say in section 43 there is
really no reason why the Court should cross the
road to serve any other purpose than just saying
plain disqualification.

MASON CJ: Mr Solicitor, I do not want to restrict your

argument, but the Court will not be able to sit
beyond 10 past 4 and that may present a problem as

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to how the balance of the argument is to be dealt
with.

MR GRIFFITH: Just a little problem perhaps, Your Honour,

but if I could hand to the Court, in any event, the
extracts from the House of Representatives Practice
with respect to this declaration, return of the
writ, and then otherwise refer to what we have said
in paragraph 10 in respect of the issue of chosen
and perhaps leave section 44(iv) with the reference
to section 44(v) to say that we would say the same
constitutional purpose is achieved in relation to
relevant time dealing with the question of having
pecuniary interest, that the relevant time for
pecuniary interest should be from the time you

become a member. We say at the declaration that
there is no real constitutional purpose in saying
that it is at the time during a campaign if you are
a person who has a contractual relationship with a
pecuniary interest with the Crown. We just submit
that it is an operation that would work well for
paragraph (v) and we submit works appropriately for
paragraph (iv).
Dealing then with the question of disqualification of the second and third
respondents, my learned friend, Mr Bell, has, I
think, taken the Court sufficiently so the Court is
now familiar with it, to the citations we have in
our paragraph 13.1 of our materials. Could I take
the Court very briefly to the 1930 convention which
appears at page 63 of our materials. Article 3 has
been referred to on page 63 as indicating -
a person having two or more nationalities may
be regarded.as its national by each of the
States whose nationality he possesses.

But we refer also to Article 1 which admits that:

It is for each State to determine under its
own law who are its nationals.

And then Article 2 says:
Any question as to whether a person possesses
the nationality of a particular State shall be
determined in accordance with the law of that

State. Article 5 deals really with the statement of what
was later recognized in Nottebohm and the other
authorities, the Merge Claim, et cetera, as
indicating that you look to the nationality where

there is the greatest connection. It is expressed
as "habitually and principally resident" as a

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nationality which will be that recognized by the
third State where there is more than one State.
What we submit is that it is appropriate that

section 44(i) should not be interpreted literally.
Of course, it is for every State to determine for
itself who are its own nationals, and whether a
person is a Greek or Swiss depends on Greek or
Swiss law. But the second and third respondents
are argued to be disqualified under section 44 of
the Constitution, and we submit that if that
provision were interpreted to apply to every person
who, under a law of a foreign state is a citizen of
that state, section 44 then will have an operation
which is beyond the control of any State or State
emanation, including this Court, within Australia.
Of course, under the law of some States, citizens can never renounce their citizenship. If
that was the case, persons within Australia would
be disbarred from participating fully in the
democratic process which is part of the Australian
constitutional structure. In some cases, of
course, the renunciation procedure can be very
complicated, and I would like to hand to the Court
two facsimile messages which firstly contain a
translation of Article 14 of the Greek law; and
secondly, there is a facsimile message which
describes the difficulties which have been
ascertained by the Australian Embassy in Athens in
obtaining a decree, an authorization, under
Article 14.
I understand my learned friend, Mr Fajgenbaum,

does not readily assent to this material
being - - -

MR FAJGENBAUM:	No, I object, if the Court pleases.
MR GRIFFITH:	So could I indicate to the Court, seeing there

is not much time to argue it, that I merely would

desire to give this to the Court as an example of the sort of difficulties rather than being the ones
which apply in the case of my learned friend
Mr Fajgenbaum's opponent.
Your Honours, the basic message of this is

that it is necessary to have a military certificate
proving that military service has been completed
before you can apply.

MASON CJ:

Mr Solicitor, it is fairly obvious that we will

not have time to hear Mr Fajgenbaum's objection to
your handing the document up.

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MR GRIFFITH: That is why I was intending to duck it by just

saying this is an example rather than this applies
here, Your Honour.

MASON CJ:

I do not know whether Mr Fajgenbaum is going to

be content with that lukewarm commendation of the
document.

MR GRIFFITH:

It is a question, Your Honour, really of where

we go. I have almost finished but I might be more
than three minutes, and then we have got this issue

hanging. So I could finish with - - -

MASON CJ:

It seems the best course to take, Mr Solicitor,

in the circumstances would be to adjourn the case
to the- first day of the next sittings of the
Court - that is excluding Adelaide, of course - perhaps the next sittings here in Canberra.

MR GRIFFITH:

Your Honour, I could do written submissions.

MASON CJ: Would Mr Fajgenbaum be content to respond in

writing?

MR. FAJGENBAUM:

I would prefer not.

I would rather, with

respect, continue in the old tradition.

MASON CJ:

If Mr Fajgenbaum wants to exercise his oral right

to reply we have no alternative, Mr Solicitor.

MR GRIFFITH: If Your Honour pleases.

MR FAJGENBAUM:

This is in respect of the - if my friend is

persisting with putting in that document.

MR GRIFFITH:	I will give up that document, Your Honour.
MR FAJGENBAUM:	As to the rest, we can continue.

MASON CJ: But you want to reply in writing?

MR FAJGENBAUM:

I do not object to a reply in writing if

that would suit the convenience of the Court but my
concern about oral argument is the concern about
the document that my friend was seeking to tender.

MASON CJ:

If that is so, the Court can now reserve its

decision in the matter subject to receiving written
submissions from you and such additional
submissions, if any, that the Solicitor wants to
make.

MR FAJGENBAUM: If the Court pleases. But may I ask the

Solicitor to complete his written submissions
before we are asked to make our reply.

MASON CJ: Yes.

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MR GRIFFITH:

Your Honour, if I could have a minute,

Your Honour, I will not need to do written
submissions.

MASON CJ: Very well.

MR GRIFFITH:

Your Honour, we wish just to shortly make the

point, to pick up the example of Justice Deane,
that one could have a State enacting a law
providing that every person who was born, whose
parents were born in that State became a citizen
and that their children became citizens and that
that Act of nationality and claim could not be one

which could be given up. In that case,
Your Honour, one could have a possibility of a whole lot of persons disqualified from office.
In its further example, one could have a

position that, for example, a country like New
Zealand could enact that every citizen of Australia
is a citizen of New Zealand. If that happened, not
only would Parliament be cleared but there would be
no persons qualified for office to be elected.
We would submit, Your Honour, that that absurd

example indicates the fact that the matter of
nationality is determined by reference to, we say,
the view of nationality within Australia, by
reference to Australian law, and, Your Honour, we
would adopt the submissions which have been made as
to how impractical it is to adopt the approach of
requiring all necessary steps, because there could
be any number of steps which are required, and we
would accept the submission which was made and
adopted by my lear~ed friend, Mr Bell, that in some
extent it is a derogation from the denial of
allegiance to have to take those steps.
One last matter I would like to say to the

Court, Your Honour, is that all parties are agreed
that there should be no order for costs; otherwise

we adopt our written submissions.

MASON CJ: Very well.

MR FAJGENBAUM: Might I have one minute of the Court's

indulgence and say - - -

MASON CJ: Yes, for one minute.

MR FAJGENBAUM:

The first is to direct the Court's attention

to section l(l)(b) of the 1975 House of Commons
Disqualification Act set out at page 285 of volume
two, where beside the sidenote of: offices or
places of profit under the Crown, all employees:

Sykes(4)

111

27/8/92

in the civil service of the Crown, whether in
an established capacity or not, and whether
for the whole or part of -

their time are disqualified from holding
parliamentary office.
The second matter about "chosen" being part of

a process~ might I direct the Court's attention to
In re Wood, 167 CLR, at page 165, where the Court's
instinctive reaction about the process of election is, in my respectful submission, in support of the
proposition I have been urging, where it says:
The purpose of the poll is to choose in
accordance with the Act the preferred
candidates who are qualified to be chosen, but
no effect can be given for the purpose of the
poll to the placing of a figure against the
name of a candidate who is not qualified to be
chosen -

refers to the process in which the poll itself is
an integral part.
So far as the question of reasonable expenses

are concerned and Mrs Rawson is concerned, I am not
able to urge upon the Court that service on a
municipal council under the Local Government Act of
Victoria, is relevant Crown service. But so far as
expenses are concerned, the question of reasonable
expenses, might I draw the Court's attention to the
Payroll Tax cases, an example of the Mutual
acceptance v The Commissioner, (1944) 69 CLR 389,
where the Court draws a distinction between
expenses which are paid to an employee constituting
money of which he has complete dominion to expend
as he wishes, and those - - -

MASON CJ:

Mr Fajgenbaurn, we will have to adjourn.

Now,

what time do you want for filing and serving your
additional written submissions? Seven days?

MR FAJGENBAUM: If the Court pleases.

MASON CJ: Seven days it will be. The Court will consider

its decision in this matter.

AT 4.13 PM THE MATTER WAS ADJOURNED SINE DIE

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[1992] HCATrans 241

Key Legal Topics

Areas of Law

Constitutional Law

Statutory Interpretation

Legal Concepts

Standing

Statutory Construction

Proportionality

of offices of profit under the Crown within	the meaning and intent of section 44 of the
Constitution.

parlance is no longer possible.	I think that
"office" is such a word.

paid to him.	It was held that this was of no
consequence.	It was held to be an office of

.	the oath of allegiance as completely unqualified
and as excluding competing allegiance to any other country?

coming back to Justice Gaudron's question, is true	of the third respondent, Mr Kardamitsis. That is	set out in paragraph 33, where the facts relating
to the renunciation of Greek nationality are set out:

question with no international consequences.	We
are not concerned with a question of whether

had resigned.	I apologize, Your Honours, if I slip
occasionally into the royal "we";	we are of course

consequences of the Courts decision may be, but I	have here the Australian Bureau of Statistics	figures for 1991 in case the Court would be
assisted by seeing them.

the judgments in Great Western Railway Co v Bater	and the well-known passage from
Mr Justice Rowlatt's judgment is contained in
(1920) 3 KB 266 at page 273 to 274 - I shall not read it - which was taken up by Lord Atkinson in
the decision in the House of Lords, (1922) 2 AC 1
at pages 14 to 15.

difficulties of classifications that are involved
here.	My first submission is that all the Court is

Attorney-General, in particular at page 4, the	relation to the submissions filed on behalf of the appropriate to permanent officers of executive
departments and public service officers in
executive departments, in my submission, of the
Commonwealth. At pages 6 to 7 the submissions deal
with the Crown in right of the State. May I submit
simply that the arguments are unconvincing in the
case of a State teacher.

Australia from the capacity to stand for the House that place, would preclude many persons in	of Representatives or the Senate in circumstances
where the citizenship was involuntarily obtained
and difficult or impossible to remove. For that
reason, in my submission, the Court should strain to adopt the alternative, in my submission, preferable interpretation for which I contend.

with the foreign power concerned.	And to that
extent it would be an unnecessary	interpretation
which would not serve the purpose	of section 44(i)
on its proper construction.

question arose in a different context.	My learned
friend, Mr Fajgenbaum, has referred to

a German national according to English law.	I
confess I have difficulty in following this.
Whether a person is a national of a country must be determined by the municipal law of
that country. Upon this I think all text
writers are agreed.	It would be strange were

Finally, I submit that Burgess' case is quite distinguishable from the instant case.	My learned
friend relied upon Burgess' case for the

and beyond is filled with uncertainty, as one might
expect.	And, of course, to find out the

with the procedure that was adopted in Re Wood.	In
my submission, In Re Wood decided a number of
things which are of direct application in the
instant case, and relevantly those things are set
out in paragraph 4 of my outline.

unqualified candidate in the instant Election,	namely the petitioner, and surely it cannot be the
law, if what else is said In Re Wood is right, that
the mere presence of an unqualified candidate will
have the result of making an election wholly fail.
On the basis of that, I submit that the analogy
does not hold.
Finally I submit that the English cases are no good analogy either. The voting systems in
relation to the cases which are reviewed in re Parliamentary Election for Bristol South East, to which I do not take the Court, were all systems either first past the post or elections concerning
two candidates and such cases, in my submission,
are not the equivalent of the present, and

Mr Cleary, the case is so much the stronger.	If it
please the Court.

the relevant page to the Court.	At page 736 in a
case concerning an appeal to the Judicial Committee

page 372 of our materials.	We have other citations
in our materials.

we do join with Mr Fajgenbaum in submitting to the	Court that the Indian distinction which was raised
in some Indian cases, as discussed by
Professor Campbell, really seemed to have no
relevant message for construction of the provision
in section 44(iv) of the Constitution.

Australian Federal Ssystem, we have a reference in	the second edition at page 48, which was extracted
as page 437 of our material says:

declaration ·is going to be made on the same day.	I
suppose in theory, you could say if there is a
problem we could adjourn for an hour or two and let
someone run off and put in your resignation, but
perhaps that observation is by the by. We would
say this is, as in any other situation of
disqualification, something to be considered as
whether or not section 44 applies; if it does
apply, what is the relevant time for application.

how His Honour indicated it is for Parliament to	and I will not go through the passage indicating
provide for the innumerable details of the
electoral system, His Honour said -

desire to give this to the Court as an example of	the sort of difficulties rather than being the ones
which apply in the case of my learned friend
Mr Fajgenbaum's opponent.