Sykes v Cleary - [1992] HCATrans 238

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Commonwealth Electoral
Act 1918-1980

Office of the Registry

No M25 of 1992

Melbourne
IAN SYKES

Petitioner

and
PHILIP CLEARY

First Respondent

JOHN DELACRETAZ

Second Respondent

"BILL_" KARDAMIT~

Third Respondent

GERALDINE RAWSON

Fourth Respondent

AU~STRALIAN ELEC~TORAL 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 WEDNESDAY, 26 AUGUST 1992, AT 3.54 PM

MR J.I. FAJGENBAUM, QC: If the Court pleases, I appear for

the petitioner, Mr Sykes. (instructed by Minter
Ellison Morris Fletcher)

MR S.P. CHARLES, QC: If the Court pleases, I appear for the first respondent. (instructed by Maurice Blackburn

& Co)

MR K.H. BELL: If the Court pleases, I appear for the third

respondent. (instructed by Holding Redlich)

MR D.J. ROSE, QC:

May it please the Court, I appear for the

Australian Electoral Commission. (instructed by
Freehill Hollingdale & Page)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

Unless it is a custom in the Court of Disputed
Returns to announce your appearance from where you
sit, I appear in the centre, Your Honour, on behalf
of the Attorney-General of the Commonwealth,
intervening on the constitutional issues only.
(instructed by the Australian Government Solicitor)

MASON CJ: Yes, Mr Fajgenbaum?

MR FAJGENBAUM:

constitutional issues - and they are in fact the If the Court pleases. The three
only issues that arise in this case - that all
arise under section 44 are first the meaning of
subsection (i) and its operation in the case of an
Australian citizen by naturalization who continues

to hold an earlier foreign citizenship. The second
issue is: what is an office of profit within the

meaning of section 44(iv). The final question that
arises is: when is a person chosen, because one
must be qualified to be chosen at all material
times within section 44.
The issues arise out of the Wills By-election

earlier this year. The writ for that By-election
was issued on 9 March this year and pursuant to
section 152 of the Electoral Act, the following

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dates were specified: first, the close of rolls

was to be on 16 March; nominations were to be by

20 March; the polling was to occur on 11 April,
and the writ was to be returned on or before
17 June.
For some time, until 16 April 1992, that is

until after the holding or the conducting of the
poll, the first respondent was a teacher on leave

without pay, employed in the Victorian Government's
teaching service. He resigned from that service on
16 April, a week prior to the declaration of a poll
which in fact occurred on 23 April, which was in
fact the day upon which the writ was certified and
returned to the Speaker of the House. At all times
the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sykes v Cleary

Details

AGLC: Sykes v Cleary [1992] HCATrans 238
Case: [1992] HCATrans 238
Decision Date

CaseChat Overview and Summary

The case of *Sykes v Cleary* was heard in the High Court of Australia, sitting as the Court of Disputed Returns. The petitioner, Mr Sykes, sought to have the election of the first respondent declared void. The dispute concerned the eligibility of candidates for election to the Commonwealth Parliament under section 44 of the Constitution, specifically in relation to the Wills By-election. The petitioner also contended that if the first respondent's election was void, then the second and third respondents were also unqualified to be elected due to their retention of foreign citizenship.

The central legal issues before the Court were: first, the interpretation and operation of section 44(i) of the Constitution concerning Australian citizens by naturalisation who continue to hold citizenship of their country of birth; second, the meaning of an "office of profit" within the meaning of section 44(iv); and third, the determination of when a person is considered "chosen" for the purposes of section 44, and whether qualification must exist at all material times. These issues arose from the circumstances of the first respondent, who was a teacher on leave without pay from the Victorian Government's teaching service until shortly before the declaration of the poll, and the second and third respondents, who were naturalised Australian citizens but retained their original Swiss and Greek citizenships respectively.

The Court was required to consider whether the first respondent held an office of profit under the Crown at the time he was chosen, which would render him ineligible for election. Furthermore, the Court had to determine whether the second and third respondents were disqualified by section 44(i) due to their continued allegiance to their former countries of citizenship, despite being naturalised Australians. The petitioner argued that if these candidates were disqualified, the election result would be significantly altered, potentially leading to a candidate with a very small number of first preference votes being declared the winner.

Orders