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

Sykes(4) 1 26/8/92

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

Copyright in the High Court of Australia

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

Sykes(4) 2 26/8/92

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 second and third respondents were naturalized

Australian citizens, but each of them had retained

a citizenship of his country of birth. In the case

of the second respondent, Switzerland; in the case
of the third, Greece.

It is our contention on the basis of these

facts that the election of the first respondent be
void because he did hold a relevant office of
profit under the Crown within the meaning of

section 44 and he held that office of profit when

he was chosen. We also contend that if the

election of the first respondent is void, that the

second and third respondents were not qualified to

be elected at that Election because of the

provisions of section 44(i). The consequence of

that, we contend, is that there ought not to be any

order of the Court other than an order avoiding the the Election be declared void. Because if each of

the first three respondents - who were the most

successful candidates at the Election - were not

qualified at the material time, the result would be

that these three candidates, who between them

received a total of 57,757 first preference votes

out of the 63,801 formal votes cast,

with ..... removed the result of necessity will be

that if there is to be a special count the

successful candidate will be one who, by way of

first preference, received no more than 1,660

votes. The facts upon which these propositions are

based are set out in the Court book at page 16,

where the details of the polling occurs.

We accept the proposition that was spelt out

by the Court in Wood's case, 167 CLR 145, at

pages 165 to 166, that an indication of preference

for an unqualified candidate is a nullity, but that

preference of itself, that null preference of

itself, does not nullify the ballot paper upon

which it is expressed, so that the ballot paper

otherwise remains valid. So it is not our

Sykes(4) 3 26/8/92

contention, with respect, that the Election ought
to be declared void simply because three
unqualified candidates stood for it, but rather

that the successful candidate was unqualified and

because of the circumstances of the second and

third respondents who were the next two most

popular candidates at the Election, it is just that
there be no special count, that it be declared
void.

Could I deal first with the question of what does the word "chosen" within section 44 mean,

because the Court will recall that the persons who

were described in subsections (i) through to (v):

shall be incapable of being chosen or of

sitting as a senator or a member of the House

of Representatives.

It is our submission that the person must be

capable- of being chosen within the meaning of the section at the time for the holding of a poll, if

one be held, and it may indeed be that the person

must be capable of being chosen at the time of

nomination. Senators and Members of the House of

Representatives are chosen directly by the people - sections 7 and 24 of the Constitution prescribe

that - save in the case of casual vacancies in the

Senate when the replacement Senator is either to be

chosen by the appropriate State Houses of

Parliament or, if no House be sitting at the

relevant time, to be appointed - there is a nice shift of language there - to be appointed by the governor of a State in which the vacancy falls.

The choosing, we contend, is to be by the

people at the Election, at the poll, at which each

voter, according to the Constitution, is to have

only one vote. And this is as one would expect in

a system of representative democracy which it has

been said the Constiturion contains.

A person is chosen when the people in power to

make the choice, in fact, make the choice, when

sufficient numbers of electors choose him or her in

preference to others. The choosing is not simply the final result. It is the process by which the candidates are considered by the electors and

preferred in relation to each other. It is a
process of consideration, acceptance, rejection,

ordering in preferences. And that process begins,

we contend, some time before the poll, but

certainly the poll is part of that choosing.

DAWSON J:  I suppose it may be that someone may not vote for

someone because they think they are not capable of

being chosen.

Sykes(4) 4 26/8/92

MR FAJGENBAUM: Indeed, and that creates problems as to why

the qualification ought to go back to the time of

nomination. But there are other reasons as well,

for example, within the Electoral Act. If only one
candidate nominates for a vacancy in the House of

Representatives, that candidate is thereby duly

elected without more. If only the relevant number

of candidates are nominated in a Senate election,
those candidates are thereby duly elected.

Section 179 of the Commonwealth Electoral Act

provides for that.

BRENNAN J:  "Chosen" means something other than expressing a

vote by a ballot?

No, it cannot be. What I had in mind when I

was qualifying what Your Honour had just said was

the case where the choosing occurs in a House, or
in the Houses of Parliament sitting together in the

case of a Senate casual vacancy.

BRENNAN J:  In a case where there are only so many

nominations?

MR FAJGENBAUM: There has to be a ballot.

BRENNAN CJ: But where there are the same number of

nominations as there are vacancies, whether in the

Senate - - -?

MR FAJGENBAUM: There is no need for a ballot.

BRENNAN CJ: Well, then, is there a choice?

MR FAJGENBAUM: There is no choice there, no.

BRENNAN CJ:  Then how does sections 7 and 24 operate?

MR FAJGENBAUM: In those circumstances, it demonstrates,

with respect, that the process of choosing -

because one does not know when the choosing is to

occur, the process of the choosing begins with the

nomination. It is a process that begins with
nomination and concludes when the writ is returned

with the name of the successful candidate

certified.

BRENNAN CJ:  Does that mean that the choice is not complete

until the return of the writ?

MR FAJGENBAUM:  Yes, the choosing is not over until the

return of ·the writ, as one would expect in a

democratic environment. The choosing is not made,

for example, by the electoral official who

certifies the name of a winning candidate upon a

writ, and if the choosing is to occur upon the

return of the writ, if that is regarded as the

Sykes(4) 5 26/8/92

choosing, something, with respect, has gone wrong

with our conceptions of popular democracy and what

it means when the Constitution says that

Members of the House and Senators are to be chosen

by the people.

The contrast that is drawn in section 15 of the Constitution in the case of casual vacancies,

between a choice by the relevant Houses of

Parliament to fill a casual vacancy and the

appointment by the Governor:

If the place of a Senator becomes vacant

before the expiration of his term of service,

the Houses of Parliament of the State for

which he was chosen shall, sitting and voting

together -

or if there is only one House of that Parliament,

that House shall:

choose a person to hold the place until the

expiration of the term ..... But if the session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place.

The Governor is not given any authority to

choose a Senator to fill the vacancy and that

carries with it, with respect, the democratic

language of popular democracy perhaps, that the

choice is the process of debate, argument,

consideration in a public kind of way. Governors

at point, as it were, in private consideration,

they are not the Governor acting on the advice of

the Executive Council. He is not a public

deliberative body in the way that the electorate

is, or the way that the Houses of Parliament

sitting together might be. He deliberates in

private and the points only in public.

If candidates only need to answer the

qualifications prescribed by section 44 when the

poll is declared or the return of the writ is made,

all kinds of inconveniences can occur, as

Justice Dawson, I think it was, said a moment ago.

An elector at a poll will not know, if he knows the

facts or she knows the facts, whether, at the

relevant time, the candidate he or she may wish to

prefer will be able to take his or her seat. It

may be that there will be impediments, for example,

to resignation from an office of profit. The

process of resignation may be such that it takes
time, there may be some doubt as to whether the

resignation will be perfected in time. Or, in the

Sykes(4) 6 26/8/92

case of a dual national who might be able to

renounce his foreign citizenship, there may be some

doubt as to whether the foreign citizenship can be
renounced in time.

It was considerations such as this that moved Mr Justice Wright, in an English case concerned

with a local election, Harford v Linskey,

(1899) 1 QB 852, to hold that a candidate has to be

qualified for election at the time of nomination.

At page 858, His Lordship, after not finding any

assistance in the texts to which he was referred

said this, at about the seventh line:

In the absence of any guide, we think it

safest to hold that in cases of elections

under the Municipal Corporations Acts a
person, who at the time of nomination is

disqualified for election in the manner in which this petitioner was disqualified, is

disqualified also for nomination. The

nomination is for this purpose an essential

part of the election, and if there are no

competitors it of itself constitutes the

election by virtue of the express words of

s 56. A different construction might produce much confusion. On the nomination day no one

could know whether the persons nominated will

at the poll be effective candidates or not.

It is true that in the case put the

disqualification may be removed before the
election is completed; but what is to be the

effect if the disqualification continues until

polling day, or until the close of the poll?	the poll begins, or until the middle of the disqualification be valid? If not, how is the
number of them to be ascertained? It seems to
us unreasonable to hold that the Act means to
leave the matter in such a state of
uncertainty, and for these reasons we think
that this petitioner was disqualified for
nomination or election.

We adopt, with respect, as part of our submission

those considerations in support of our proposition
that the choosing is the process, the continuous
process, that begins with nomination, continues
through polling day until the declaration of polls,

with the result that if a candidate is not

qualified within the meaning of section 44 on the

polling day, he is incapable of being chosen within

the meaning of the section.

If I can now turn to the question of the first

respondent's office of profit. He was until his

resignation after the holding of the poll employed

Sykes(4) 26/8/92

by the Crown in right of the State of Victoria as a permanent teacher in its teaching service; clearly

we contend an office of profit under the Crown. He

had a certain tenure, certain duties and certain

emoluments attached to that office. If I can take
the Court to the Teaching Service Act itself.

Section 3 says:

For the purposes of this Act, there shall be

employed by Her Majesty in the teaching

service teachers and principals and such other

persons as are necessary for the purposes of

this Act.

"Teachers" is an expression which is defined in

section 2, the definition section.

"Teachers" means permanent officers employed

in the teaching service for teaching in State

schools and other temporary employees engaged

for the same purpose.

"Officer" is defined in the same section to mean:

any person holding an office in the teaching

service but does not include an employee.

Accordingly, Mr Cleary was employed by Her Majesty

in the teaching service as a permanent teacher

being an officer holding an office, clear on the

face of the statute.

BRENNAN J: Mr Fajgenbaum, what year is this, the

Teaching Service Act?

MR FAJGENBAUM:	I am sorry; it was in 1981.
BRENNAN J:	1981.

MR FAJGENBAUM: It is a number 2 reprint.

BRENNAN J: Yes, thank you.
MR FAJGENBAUM:	The Court will see the pivotal section in

section 3 and the definition of "Officer" and

"Teachers" in section 2. Part III of the Act

which begins immediately before section 11, deals

with:

Classifications, Salaries, Allowances and

Conditions of Work -

the emoluments that are attached to the office and

that there is a relevant tenure attached is, with

respect, demonstrated by the provisions of Part V,

which begin immediately before section 66, which

deal with questions of discipline. And might I

Sykes(4) 26/8/92

draw the Court's attention particularly to

section 75, and the side-note to the section, of:

Forfeiture of office in certain cases.

It is clear also, in our submission, that

section 44(iv) disqualifies holders of office of

the Crown in right of the State of Victoria as much

as it does disqualify holders of office of the

Crown in right of the Commonwealth. That is

apparent first from the exception in the tailpiece

to section 44 where it says:

But sub-section iv does not apply to the
office of any of the Queen's Ministers of

State for the Commonwealth, or of any of the

Queen's Ministers for a State -

As Quick and Garran said in their text at page 492:

This general disqualification -

section 44(iv) -

would apply to persons holding office under

the Crown in any part of the British

dominions.

But be that as it may, it is clear, in our

respectful submission, that it applies and it was

intended to apply to exclude offices of profit

under the Crown in the right of the State of

Victoria.

This can be demonstrated, with respect, by the

motion at the Melbourne Constitutional Convention

in March 1898 when the amendment to section 44 was

proposed to include, within the exclusion from the

operation of section 44(iv), Ministers of the Crown

in the States. If the Court will turn to

paragraph 9(c) of our outline, the Court will see

that the amendment was moved by Sir John Forrest.

The only other speaker at the convention who spoke

to the amendment was Mr O'Connor, later of this

Court.

Each of them foresaw a mischief in the section
that if the amendment was not moved, that Ministers

of the Crown for the State would not be entitled to

nominate or to sit in the Federal Parliament. It

was thought desirable at the time, at least in the

early days, when relevant political experience was

to be found in the State governments and State

Parliaments, that colonial ministers should be

entitled to sit and to nominate for the Federal

Parliament.

Sykes(4) 9 26/8/92

MASON CJ:  Mr Fajgenbaum, we will adjourn now and we will

resume at 9.45 tomorrow.

MR FAJGENBAUM: If the Court pleases.

AT 4.19 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 27 AUGUST 1992

Sykes(4) 10 26/8/92