Re Wood [1988] HCA 22; (1988) 167 CLR 145 (12 May 1988)

CATCHWORDS

HEARING

DECISION

2. On 28 January 1988 the Deputy Secretary of the Department of Immigration, Local Government and Ethnic Affairs wrote a letter to the President of the Senate stating that Senator Wood had applied for the grant of Australian citizenship, he being a British citizen who had not received Australian citizenship. On 3 February 1988 Senator Wood made an affirmation of allegiance and was granted Australian citizenship. At all material times prior to 3 February 1988 Senator Wood was a British citizen and was not an Australian citizen. The category of citizenship applicable to Senator Wood pursuant to the British Nationality Act 1981 (U.K.) does not appear and is immaterial. Nor does it appear whether, on 3 February 1988 or subsequently, Senator Wood renounced British citizenship in accordance with the provision for renunciation contained in s.12 of the British Nationality Act.

3. On these facts, a question has arisen whether Senator Wood became a senator or, if he did become a senator, whether he is entitled to remain one. The problem concerns the qualifications for membership of the Senate - now prescribed by statute - and the disqualifications for membership prescribed by s.44 of the Constitution. Section 16 of the Constitution provides that the qualifications of a senator are the same as those of a member of the House of Representatives. Inter alia, s.34 empowers the Parliament to provide for the qualifications of a member of the House of Representatives. That power has been exercised by the enactment of s.163 of the Commonwealth Electoral Act 1918 ("the Act") which reads:



" (1) The qualifications of a Member of the

House of Representatives shall be as follows:

(b) He must be an Australian citizen; and

(c) He must be either

(i) an elector entitled to vote at the

election of Members of the House of

Representatives; or

(ii) a person qualified to become such an

elector.

(2) To entitle a person to be nominated as a

Senator or a Member of the House of

Representatives he must have the qualifications

specified in sub-section (1)."

" No person shall be capable of being elected as

a Senator or a Member of the House of

Representatives unless duly nominated."

" Any person who

(i) Is under any acknowledgment of

allegiance, obedience, or adherence to a

foreign power, or is a subject or a

citizen or entitled to the rights or

privileges of a subject or a citizen of a

foreign power; or

(ii)...

(iii)...

(iv)...

(v) ...

shall be incapable of being chosen or of sitting

as a senator or a member of the House of

Representatives."

4. On 16 February 1988 the Senate resolved pursuant to s.376 of the Act to refer to the Court of Disputed Returns the following questions:

"(a) whether there is a vacancy in the

representation of New South Wales in the

Senate for the place for which Senator Wood

was returned;

(b) if so, whether such vacancy may be filled by

the further counting or recounting of ballot

papers cast for candidates for election for

Senators for New South Wales at the

election; and

(c) alternatively, whether in the circumstances

there is a casual vacancy for one Senator

for the State of New South Wales within the

meaning of section 15 of the Constitution."

5. The first matter for examination is the Court's jurisdiction to answer question (a). The starting point is s.47 of the Constitution. That section reads:

" Until the Parliament otherwise provides, any

question respecting the qualification of a

senator or of a member of the House of

Representatives, or respecting a vacancy in

either House of the Parliament, and any question

of a disputed election to either House, shall be

determined by the House in which the question

arises."

6. However, the House of Commons continued thereafter to decide questions respecting the qualifications of persons elected and returned as members of the House: see Rogers on Elections (17th ed. 1895), vol.2, pp 176-177; Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (17th ed. 1964), pp 185-186; (20th ed. 1983), p 34. It was not thought that the House lacked jurisdiction to determine that a new writ should be issued when a candidate who was disqualified was returned, or that its jurisdiction depended upon a determination by a judge that the election of the disqualified member was void. The traditional jurisdiction of the House of Commons to determine questions concerning the qualifications of its members and vacancies in the House was not superseded by the statutory jurisdiction conferred on the judges.

7. The jurisdiction of the Legislative Council of New South Wales was more narrowly defined by s.18 of The Australian Constitutions Act 1842 (5 & 6 Vict. c.76) (Imp.). The Council was empowered to determine on a reference by the Governor "any question ... respecting any vacancy in the Legislative Council ... on occasion of any of the matters aforesaid", being certain specified blemishes in the electoral process. In Martin v. Nicholson (1850) Legge 618, the Supreme Court of the colony held that the Council's jurisdiction did not extend to adjudicating on a vacancy by reason of non-qualification, "the same not being one of those matters": p 628.

8. The introductory words of s.47 of the Constitution, in conjunction with s.51(xxxvi), reserved to the Parliament power to enact laws with respect to the determination of questions respecting the election and qualifications of the members of either House and respecting vacancies in either House. The Commonwealth Electoral Act 1902 (Cth), which was enacted by the first Parliament, followed the pattern of The Parliamentary Elections Act. Section 192 of the 1902 Act provided (as s.353(1) of the Act now provides):

" The validity of any election or return may be

disputed by petition addressed to the Court of

Disputed Returns and not otherwise."

"It seems to be clear that the question whether

there is or is not now a vacancy in the

representation of South Australia in the Senate

is one of the questions to be decided by the

Senate under sec.47 'unless the Parliament

otherwise provides.' Parliament can, no doubt,

confer authority to decide such a question upon

this Court, whether as a Court of Disputed

Returns or otherwise. But until the question is

regularly raised for decision we reserve our

opinion upon it."

9. The jurisdiction first conferred on the Court by the 1902 Act is now conferred by Div.1 of Pt XXII of the Act - "Disputed Elections and Returns"; the jurisdiction first conferred by the 1907 Act is now conferred by Div.2 of that Part - "Qualifications and Vacancies". Part XXII of the Act is headed: "Court of Disputed Returns". The jurisdiction conferred by Div.2 is as stated in s.376:

" Any question respecting the qualifications of

a Senator or of a Member of the House of

Representatives or respecting a vacancy in either

House of the Parliament may be referred by

resolution to the Court of Disputed Returns by

the House in which the question arises and the

Court of Disputed Returns shall thereupon have

jurisdiction to hear and determine the question."

10. Nevertheless, it is submitted that the Court has no jurisdiction to determine a question referred under Div.2 to the extent that the question involves a canvassing of the validity of an election or return. Reliance is placed on one of the chains of reasoning in Martin v. Nicholson. That was an action for trespass and the issue was whether the plaintiff was a member of the Legislative Council from the Chamber of which he had been ejected as a stranger. The Legislative Council of New South Wales had passed an Electoral Act 1843 (6 Vic. No.16) which conferred jurisdiction on the Electoral Court "to inquire into all cases ... respecting disputed returns of Members to serve in the said Legislative Council": s.41. The Supreme Court held (at p 627) that the jurisdiction of the Electoral Court was exclusive "and that, where neither an opposing candidate, nor the requisite number of electors, shall petition against such Return, it becomes thenceforward unimpeachable". It is submitted that the jurisdiction conferred by Div.1 is also exclusive and that a question as to the qualifications of a senator to be chosen cannot be determined under Div.2 when the election is no longer impeachable under Div.1. Sections 353 and 358, it is said, restrict impeachment of a disputed election and return to proceedings on a petition which is filed within the time prescribed by, and which otherwise complies with, s.355.

11. Senator Wood's election is not now impeachable under Div.1: see Nile v. Wood [1987] HCA 62; (1987) 62 ALJR 52; 76 ALR 91. No doubt one of the purposes of Div.1 is to achieve finality in an election (In re Berrill (1978) 52 ALJR 359; 19 ALR 254), but Martin v. Nicholson does not compel the conclusion that, when the election of a senator has not been impeached or is no longer impeachable under Div.1, the Court of Disputed Returns cannot decide whether the senator was not qualified or was disqualified when it is necessary to reach that decision in order to determine a question referred under Div.2. In Martin v. Nicholson, the issue whether the plaintiff was a member of the Legislative Council could not be resolved by the Supreme Court on its own view of the matter, for the Court held it had no jurisdiction to determine the question; it could not be resolved by the Legislative Council for its jurisdiction was too limited. Therefore it was held that the question could be resolved only in consequence of a declaration by the Electoral Court that the plaintiff had not been duly elected (see pp 626,629,631) and, as no such declaration had been made, the plaintiff's membership of the Council was beyond challenge. There is no warrant for applying the reasoning in that case to the construction of Div.2 of Pt XXII of the Act which, in contrast with the limited jurisdiction conferred by s.18 of The Australian Constitutions Act, confers on the Court of Disputed Returns the entirety of the jurisdiction of the respective Houses under s.47 of the Constitution to determine questions respecting qualifications and vacancies.

12. It is not possible to read down the grant of general jurisdiction to determine questions respecting qualifications and vacancies in such a way as to preclude the Court from determining on a reference under Div.2 whether a senator or member was duly elected. The powers which are conferred on the Court when proceeding under Div.2 are inconsistent with so qualified a construction of s.376. Section 379 provides:

" On the hearing of any reference under this

Part the Court of Disputed Returns shall sit as

an open Court and shall have the powers conferred

by section 360 so far as they are applicable, and

in addition thereto shall have power -

(a) to declare that any person was not qualified

to be a Senator or a Member of the House of

Representatives;

(b) to declare that any person was not capable

of being chosen or of sitting as a Senator

or a Member of the House of Representatives;

and

(c) to declare that there is a vacancy in the

Senate or in the House of Representatives."

" (1) The Court of Disputed Returns shall sit

as an open Court and its powers shall include the

following:

...

(v) To declare that any person who was

returned as elected was not duly elected:

(vi) To declare any candidate duly elected who

was not returned as elected:

(vii) To declare any election absolutely void:

..."

13. It is therefore open to the Senate to refer to the Court of Disputed Returns under Div.2 a question respecting a vacancy in the place of a senator who allegedly lacked the qualifications of a senator at the time of his election or return or was then disqualified from being chosen as a senator and the Court has jurisdiction to determine the question notwithstanding that it may involve a decision as to whether the senator was duly elected and whether the purported election of the senator was void.

14. As Senator Wood was not an Australian citizen prior to 3 February 1988, he was not entitled to be nominated for election as a senator: s.163 of the Act. His election and return could not create the legal capacity to be a senator which s.163 denies. Section 16 of the Constitution makes the qualifications prescribed by s.163 of the Act the qualifications "of a senator" and a constitutional requirement that senators possess those qualifications is thus created. The constitutional requirement is not satisfied by a de facto election and return of a candidate who does not possess the prescribed qualifications. A de facto election and return are therefore ineffective to confer the legal status of senator on an unqualified person though of necessity the return must be treated as having some effect. In Vardon v. O'Loghlin [1907] HCA 69; (1907) 5 CLR 201 (at p 208) Griffith C.J., speaking for the Court, said that when the election of a person returned as a senator is invalid -

"the return is regarded ex necessitate as valid

for some purposes unless and until it is

successfully impeached. Thus the proceedings of

the Senate as a House of Parliament are not

invalidated by the presence of a senator without

title. But the application of this rule is

co-extensive with the reason for it. It has no

application as between the sitting senator and

any other claimant for the place which he has

taken, or as between him and the electors, by

whom he was not in fact chosen."

15. In England, when a person disqualified from being a candidate was elected at the polls, the general rule was that the election was void: see, for example, Sir Hugh Fraser The Law of Parliamentary Elections and Election Petitions (3rd ed. 1922), pp 62-63. In Gosling v. Veley (1847) 7 QB 406, at p 437 [1847] EngR 232; (115 ER 542, at p 554), Lord Denman C.J. said:

"Where the majority of electors vote for a

disqualified person in ignorance of the fact of

disqualification, the election may be void or

voidable, or, in the latter case, may be capable

of being made good, according to the nature of

the disqualification: the objection may require

ulterior proceedings to be taken before some

competent tribunal, in order to be made

available; or it may be such as to place the

elected candidate on the same footing as if he

never had existed and the votes for him were a

nullity."

"There is a manifest distinction between an

offence avoiding an election and an incapacity.

If a man is incapacitated, though at the election

in question neither he nor any elector is guilty

of a fault, the election is void."

16. Another category of election which was not wholly void was the election of a person who, though incapacitated at the time of the election, acquired capacity thereafter pursuant to a statute which provided for retrospective capacitation of a candidate after election. Such an election was perforce treated as valid provided the office had not been lawfully filled in the meantime: R. v. Hawkins [1808] EngR 287; (1808) 10 East 211 (103 ER 755); R. v. Parry [1811] EngR 573; (1811) 14 East 549 (104 ER 712), cases which were decided on the Test Act. But there is no provision for retrospectively validating an election or return of a candidate who lacked the qualifications required by s.16 of the Constitution and prescribed by s.163 of the Act. The election and return of such an unqualified candidate is wholly ineffective to fill a vacant Senate place. Senator Wood's election was void. The return was defective. What is the consequence? The answer is furnished by Vardon v. O'Loghlin.

17. Vardon v. O'Loghlin was the next judicial chapter in the story of Mr Vardon's attempt to take his seat in the Senate. The Court of Disputed Returns (by then vested with jurisdiction under the 1907 Act with which Div.2 broadly corresponds) held that the invalidity which affected Mr Vardon's return amounted to a failure by the electors to choose a senator for the place which Mr Vardon had been returned to fill. The Court said (at pp 208-209):

"The election is either valid or invalid. If

invalid, the reason of the invalidity is not

material so far as regards its consequences. We

think it follows that, upon the avoidance of the

election itself by the Court of Disputed Returns,

the case is to be treated for all purposes, so

far as regards the mode of filling the vacancy,

as if the first election had never been

completed, unless there is something in the

Constitution to lead to a contrary conclusion."

18. A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ (Drinkwater v. Deakin, at p 638) because Senator Wood was incapable of filling the 12th place. That is not to say that, putting to one side "a mere abuse of the right of nomination or an obvious unreality" (Harford v. Linskey (1899) 1 QB 852, at p 862 and cf. Pritchard v. Mayor, &c. of Bangor (1888) 13 App Cas 241), the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified: s.170(a)(ii) of the Act) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue: see s.172 of the Act and Evans v. Thomas (1962) 2 QB 350. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate.

19. It is therefore necessary to consider how the place which has been left unfilled should be filled. Is the correct procedure to amend the return or to make a supplementary return, substituting the name of a qualified candidate for the name of William Robert Wood and thereby filling up the place which has been left unfilled? In the single member electorates for the House of Commons this course was taken when the electors had notice that a candidate was disqualified but nonetheless persisted in voting for that person. The votes for the disqualified candidate were said to be thrown away and the qualified candidate who obtained most of the valid votes was then returned: see, for example, In re Parliamentary Election for Bristol South East (1964) 2 QB 257. But that principle cannot be applied to an election for the Senate pursuant to s.7 of the Constitution conducted in accordance with the single transferable vote system of proportional representation prescribed by the Act.

20. The legislative scheme prescribed by Pt XVIII of the Act - "The Scrutiny" - for ascertaining the result of the polling in a Senate election is calculated to reflect the proportionate support of the electors for the respective political parties or groups from which the candidates for election are drawn. The ballot papers, printed in accordance with Form E in the Schedule to the Act, provide for the placing of numbers in sequence against the names of the candidates "so as to indicate the order of his the voter's preference for them": s.239(1)(a). The order may be indicated by placing the figure 1, a tick or a cross in a square appropriate to a group voting ticket: ss.211,239(2) and (3). 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: an indication of a voter's preference for an unqualified candidate is a nullity. That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper. But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter's preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s.16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter's expressed intention. It is as though the unqualified candidate were deceased: cf. Reg. v. Mayor of Tewkesbury (1868) LR 3 QB 629, at p 634. The provision which applies when a deceased candidate's name is on the ballot paper is s.273(27): a vote indicated on a ballot paper opposite the name of a deceased candidate is counted to the candidate next in the order of the voter's preference and the numbers indicating subsequent preferences are treated as altered accordingly. For the purposes of the scrutiny which may now be conducted, a vote for an unqualified candidate is in the same position as a vote for a candidate who has died, and the votes should be treated accordingly. By construing Pt XVIII in this way, the true result of the polling - that is to say, the true legal intent of the voters so far as it is consistent with the Constitution and the Act - can be ascertained.

21. Three other methods of filling the vacancy were canvassed in the submissions made to the Court. The first was a supplementary election for the unfilled place in the Senate. That was the outcome of the Vardon litigation, but a supplementary election is inappropriate and unnecessary in the present case. It is inappropriate because such an election would fill the vacant place by what would be in effect preferential voting for a single member constituency, not by proportional voting for a multiple member constituency. The manifest purpose of the proportional voting scheme of the Act would be liable to be frustrated if a further poll were taken in which the quota would be more than 50% of the votes cast. In Vardon v. O'Loghlin, the invalidity of the electoral process precluded the ascertainment in accordance with the law of the choice which the voters had made, and a further election was the only means by which that choice could be ascertained. But in the present case, there is no blemish affecting the taking of the poll and the ballot papers are available to be recounted if the valid choice of the electors can lawfully be ascertained by recounting. It is unnecessary to take a further poll. The full number of qualified senators required can be returned in accordance with the Act after a recount of the ballot papers. There will be no partial failure of the election and therefore no need to issue a new writ for a supplementary election: see s.181 of the Act.

22. Next it was submitted that if it was impracticable to call a supplementary election for the filling of the vacancy, then an election should be held for all twelve persons to represent New South Wales in the Senate. We reject the submission. Save upon a further reference in accordance with s.376 of the Act, the validity of the election of the eleven persons duly returned as elected is not now open to challenge. The validity of their election has not been disputed by petition as provided for by s.353 of the Act. The places filled by these eleven persons are not vacant, and no election can be held to fill a vacancy which does not exist. The decision of Nader J. in Hickey v. Tuxworth (1987) 47 NTR 39 was cited in aid of the submission. That was a case where a challenge to the validity of the election by preferential voting of a qualified candidate in a single member seat was declared void. Nader J. held the election void because, an unqualified candidate's name being on the ballot paper, it was impossible to be satisfied (having regard to the closeness of the voting and the order in which preferences were distributed) that the result would not have been different if the unqualified candidate had not taken part. With respect, the conclusion in Hickey v. Tuxworth cannot be accepted, at least for the purposes of the Act. If the unqualified candidate's nomination in that case was formally correct and his name was properly on the ballot paper, it is difficult to see how the election miscarried. The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination in due form: see s.172 of the Act. In any event, in the present case, it is unreal to suggest that the presence of Senator Wood's name on the ballot paper has falsified the declared choice of the people of the State for any of the first eleven candidates.

23. The third of the alternative methods of filling the vacancy invoked the casual vacancy provisions in s.15 of the Constitution. It was submitted that a choice or appointment under that section of a qualified person could be an appropriate means of filling the vacant place. But the vacancy which awaits filling is not a casual vacancy. The introductory words of s.15 of the Constitution specify the condition governing its application:

" If the place of a senator becomes vacant

before the expiration of his term of service ...".

24. The expression "becomes vacant" is to be found not only in s.15 of the Constitution but throughout Ch.I - "The Parliament": see ss.19,20,37,38 and 45. In each of those sections it is clear that the expression is used to refer to a situation in which the place of a senator or member, having been filled, becomes vacant by reason of some supervening event. Thus s.19 relates to the resignation of a senator and s.20 to failure to attend the Senate, without permission, for two consecutive months. Sections 37 and 38 contain comparable provisions in the case of a member.

25. By s.45 the place of a senator or member "shall ... become vacant" in any of the events there mentioned, each of which contemplates a situation arising after the election of the senator or member. Section 45(i) is concerned with the senator or member who "(b)ecomes subject to any of the disabilities mentioned in the last preceding section". Section 44, set out earlier in these reasons, provides that a person subject to any of the disabilities there mentioned, "shall be incapable of being chosen or of sitting". The distinction in language is obvious.

26. Section 13 looks to a quite different situation, the rotation of senators in three-yearly and six-yearly intervals. Nevertheless, in providing that the "election to fill vacant places shall be made within one year before the places are to become vacant", the section looks to the future when places that have been filled will become vacant.

27. The place of Senator Wood has not become vacant by reason of any supervening event. Rather, the place has not been filled in the eye of the law for he lacked the qualifications to be elected. But it can be filled by completing the election after a recount of the ballot papers.

28. Reference should be made to s.393 of the Act which provides for the destruction of ballot papers, certified lists of voters and declarations used at or in connection with an election. Unless they are required for research, those documents must be destroyed either 6 months from the date of the declaration of the poll or "until the election can no longer be questioned", whichever is the later. This provision may have been enacted in the belief that the time for questioning an election would expire when the time for taking proceedings pursuant to Div.1 had expired or when any proceedings under Div.1 were at an end. But, as we have seen, the time for questioning an election does not expire so long as a reference touching the validity of an election might be referred to the Court of Disputed Returns under Div.2. The time for destruction of the ballot papers has not yet arrived.

29. The answers which should be given to the questions referred may now be stated:

Question (a): There is a vacancy in the representation

of New South Wales in the Senate for the

place for which Senator Wood was

returned;

Question (b): The vacancy may be filled by the further

counting or recounting of ballot papers

cast for candidates for election for

Senators for New South Wales at the

election; and

Question (c): There is no casual vacancy for one

Senator for the State of New South Wales

within the meaning of section 15 of the

Constitution.

30. Having answered the questions referred by resolution of the Senate, it may be that this Court has no further function to perform with respect to the filling of the vacancy which we have declared to exist. Another view is that the Court should give directions to the Australian Electoral Officer to undertake a recount of the ballot papers, leave being reserved to the parties who have appeared to apply to a Justice of the Court to resolve any questions which may arise as to the method of counting or recounting in order to identify the candidate who is entitled to be elected to the unfilled place. It might be thought that, upon completion of the recount, the Court should exercise the power to declare "any candidate duly elected who was not returned as elected" (s.360(1)(vi)), whereupon the person in question would "take his seat accordingly": s.374(ii).

31. The jurisdiction of the Court to perform any further function after answering the questions referred has not been argued. We would not embark on the performance of any further function except on the express application of one of the parties and after giving an opportunity to be heard to the other parties. The matter is therefore adjourned sine die. The parties have seven days from today in which to notify the Registrar if they wish to make any further submissions. In the event of any party wishing to make a further submission notice should be given to all other parties when notice is given to the Registrar.

ORDER

Answer the questions referred to the Court of Disputed Returns as follows:

representation of New South Wales in the Senate for the

place for which Senator Wood was returned?

Answer: There is a vacancy in the representation of New

South Wales in the Senate for the place for which

Senator Wood was returned.

the further counting or recounting of ballot papers cast

for candidates for election for senators for New South

Wales at the election?

Answer: The vacancy may be filled by the further

counting or recounting of ballot papers cast for

candidates for election for senators for New South Wales

at the election.

there is a casual vacancy for one senator for the State

of New South Wales within the meaning of section 15 of

the Constitution?

Answer: There is no casual vacancy for one senator for

the State of New South Wales within the meaning of

section 15 of the Constitution.

Adjourn the matter to a date to be fixed. Direct any party wishing to make submissions dealing with the further function, if any, of the Court to notify the Registrar and the other parties on or before 19 May 1988. No orders as to costs.