The King v The Governor of the State of South Australia

This case concerned an application for a writ of mandamus directed to the Governor of South Australia. The applicant, Joseph Vardon, sought to compel the Governor to issue a writ for a popular election of a senator. This arose after an election for three senators for South Australia, where the election of Mr. Vardon was declared void by the Court of Disputed Returns. The South Australian Parliament, acting under section 15 of the Constitution, then chose another person to fill the vacancy. Mr. Vardon contended that this parliamentary choice was invalid and that a new popular election was required, necessitating the Governor to issue a writ.

The High Court was required to determine several key legal issues. Firstly, it had to consider whether a writ of mandamus could lie against the Governor of a State to compel him to issue a writ for a senatorial election. Secondly, the Court needed to ascertain whether the vacancy created by the voided election was one that should be filled by a popular election or by the State Parliament under section 15 of the Constitution. Finally, the Court had to determine its own jurisdiction in relation to issuing such a writ against a State Governor.

The Court held that a writ of mandamus would not lie against the Governor of a State to compel him to perform an act in his capacity as Governor. The Court reasoned that the Governor, in issuing writs for senatorial elections or certifying elected senators, acts as the constitutional head of the State, not as an officer of the Commonwealth. Therefore, the High Court's jurisdiction under section 75(v) of the Constitution, which allows for writs of mandamus against officers of the Commonwealth, did not extend to the Governor in this capacity. Furthermore, the Court determined that the question of whether a vacancy in the representation of South Australia in the Senate existed and how it should be filled was a matter to be decided by the Senate itself under section 47 of the Constitution.

Consequently, the rule nisi for a writ of mandamus was discharged. The Court found that the Governor was not amenable to mandamus for the act in question, and that the ultimate determination of the vacancy and its filling rested with the Senate.