R v Governor of South Australia [1907] HCA 31

sec, 75, sub-sec, v. of the Constitution. Higgins JJ.

p election - Mandamus - Question for determination by Parliament - The

ions of the Commonwealth Hlectoral Act 1902 it was declared that the on of one of the three senators returned as duly elected for South Aus- in place of those whose places had become vacant by effluxion of time, us void. The Parliament of South Australia, assuming to act under sec. 15 of the Constitution, chose a person as senator to fill the vacancy, that was duly certified, and the person chosen sat and voted as a senator. 1e candidate whose election had been declared void applied to the High for a writ of mandamus to compel the Governor to issue a writ for a

)) Held, that » mandamus will not lie to the Governor of a State to compel _him to do an act in his capacity of Governor.

The jurisdiction in respect of mandamus conferred upon the High Court by he Constitution, sec. 75, sub-sec. v., has not been enlarged by sec. 33 of the ary Act 1903,

Held, also, that the question whether, under the circumstances, there was Was not a vacancy in the representation of South Australia in the Senate '4 question to be decided by the Senate under sec. 47 of the Constitution.

• MANDAMUS. This was an application by Mr. Joseph Vardon for a writ mandamus directed to the Governor of South Australia eo manding him to cause a writ to be issued for the election senator for the State of South Australia to complete the ep orSovnt sentation of that State in the Senate of the Commonwealth, ( ATSTRATIA. 8th November 1906 the Governor of South Australia, Sir Geor R. Le Hunte, K.C.M.G., caused a writ to be issued for the ele of three senators in place of Sir Josiah Symon, Sir Richard and The Hon. Thomas Playford whose term of service wou! expire on 31st December of that year, and appointed the d for nomination, taking the poll, and return of the writ to be 1! November 1906, 12th December 1906, and 7th January 19 respectively. Seven gentlemen, including Sir Josiah Symo Mr. William Russell and Mr. Joseph Vardon were duly nominaté and the polling resulted in those three gentlemen being de elected in that order, and the writ was returned endorsed certificate to that effect by the Commonwealth Electoral Office On 15th February 1907 one of the defeated candidates, Mr. Blundell, filed a petition in the High Court as the Court « Disputed Returns praying for a recount of the ballot-pap declaration that Mr. Vardon was not duly elected, and a declan tion that Mr. Crosby, another candidate, or the petitioner was elected, or in the alternative a declaration that the election w absolutely void.

The petition was heard before His Honor Mr. Justice B who on Ist June 1907 declared that the election was absolute void in respect of the return of Mr. Vardon (1). Accordingly on July the Governor forwarded a message to the Legislative C and Legislative Assembly of the State informing them that li had been notified of the result of the petition, and that a va had thereby arisen in the representation of the State in h Senate. The message went on to state that the Governor was advised that by reason of the vacancy the place of a senator h become vacant before the expiration of his term of office witl the meaning of sec. 15 of the Constitution, and that the must be filled by the Houses of Parliament sitting

choosing a person to hold the office in accordance with the secti¢ (1) 4C.LR., 1463.

suance of this message and the standing orders of the two of Parliament, the President of the Council summoned the mbers of the two Houses to a joint sitting for the purpose of ngasenator. On the same day, 3rd July 1907, the Legis- ive Council passed resolutions that it disagreed with the advice iven to the Governor and referred to in his message to them, ind that an address be presented to him conveying that resolution. _ A few days afterwards Mr. Vardon presented to the Governor letter signed by himself in which he suggested that the proper 1 s of filling the vacancy was by the issue of a writ by the wernor for the election of a senator for the State, and that sec. of the Constitution was only intended to apply to senators elected, and had no relation to a void election. To this the lovernor replied that, until otherwise advised, he must decline to issue a writ for a fresh election. On 10th July 1907 Mr. Vardon wrote to Mr. Butler, a member of the House of Assembly the Stute, a letter in which he stated his position in regard to the Senate election in the following words : - "T am willing to uct as a senator if duly and properly elected as one. I am advised that the proper course is a new popular election. I must leave the responsibility of acting or not acting on your wish to nominate me in Parliament entirely to yourself. If you do so md the result is that I am lawfully made a senator I will act xecordingly." On 11th July the two Houses of Parliament were summoned, and at a joint sitting elected Mr. J. V. O'Loughlin to fill the vacancy. On 12th July on the motion of Sir John Downer K.C. and [r. Piper an order nisi for a mandamus to the Governor was nted by Burton J. on the ground that, the election of senators ving been declared absolutely void in respect of the return of Vardon, a new election must be held, and it was the duty of Governor to cause a writ to be issued for such new election. ce of the order nisi was directed to be given to any person o might be chosen by the Houses of Parliament to fill the

iwealth to intervene on the hearing of the motion to make the order absolute.,

Sir John Downer K.C. (Piper with him), for the prose moved to make the order absolute. The Commonwealth not have been allowed to intervene. Its only interest in the ¢ is its pecuniary interest in the cost of another election. question as to the representation of South Australia in the Se affects that State alone. The leave to intervene should there be rescinded.

[Per Curiam. - It was a matter for the discretion of the

The main question is whether there is a vacancy within meaning of sec. 15 of the Constitution. If there is not, then rule should be made absolute. [They referred to sees. 1, 7, 11, and 47 of the Constitution, and secs. 197, sub-sees. (IV.), (V.), ( and 205, sub-see. (111) of the Commonwealth Electoral Act 19 This is a matter arising out of the Constitution. The Court has jurisdiction to issue mandamus in such a matter sec. 76 of the Constitution, and see. 30 of the Judiciary Act 1 either by prerogative writ, or by special writ under the Judici Act 1903.

Sir Julian Salomons K.C. and Rolin, for the Governor South Australia. The Court cannot issue mandamus to Governor on the application of the prosecutor. The thing commanded here is not a duty which the Governor owes to prosecutor. It is a public duty, and the prosecutor as a m ; elector has no interest in the matter. Secs. 11 and 12 of t Constitution do not create any duty to the individual electors a State. [They referred to The Queen v. Convmissioners 9 Inland Revenue; In re Nathan (1); The King v. Arndel (2).

(Grirrira C.J. - Undoubtedly that is the common law rule, but motions for a mandamus to compel an election are alv y' moved by electors. [He referred also to High Court Pro Rules, Order XLL, rr. 14 et seq.]

Here the only party aggrieved is the State of South Au and the Attorney-General for the State is the only person may bring a suit on behalf of the State: sec. 62 of the O

(1) 12 Q.B.D., 461, at p. 470. (2) 3C.L.B., 557, at p. 580.

"Suit" includes any action or original proceeding. H. ©. oF A. The prosecutor is precluded now from applying for a writ of esa andamus. By his letter of 10th July he agreed to take his Tae Kise nee of being chosen by the Houses of Parliament. Hethereby yy de his election. [They referred to The Queen v. Lofthouse (1); ¢ fer ny 2 on Mandamus and Prohibition, 1st ed., p. 151.) or Sours, (Grireira C.J. - That rule applies to prohibition, and to a tas rtain extent to quo warranto, but it is very doubtful whether

_ This application is quo warranto in effect. The office is full,

nd a mandamus ordering to fill the office again would be futile.

is not a case of a mere colourable election : Frost v. Mayor

Chester (2); Rew v. Mayor of Cambridge (3); Rex v. Bankes

(4); The Queen v. Secretary of State for War (5). There was a

bond fide election under sec. 15 of the Constitution.

This Court cannot issue a mandamus to the Governor of a

to issue a writ for an election. That is a function which he

cises as a representative of the Crown. [They referred to

New South Wales Parliamentary Handbook.] 'The Crown will

The Governor is bound by the terms of his commission to

y be indicted as an individual, or removed from his position : entucky v. Dennison (7); Sutherland v. The Governor (8); People v. Morton (9); Anson, Law and Custom of the Con- tion, 2nd ed., vol. 11., p. 356. Moreover, the issue of the writ w an election is discretionary. The section says that he "may," that he "shall," do so. [Isaacs J. referred to Railroad Company v. Hecht (10). -Hiaeis J. referred to Governor of Georgia v. Madrazo (11); 7. mer. and Eng. Encyc. of Law, vol. vt, p. 379.] There cannot be a popular election for one senator. There is provision for it in the Constitution or the Commonwealth

2. SEL & BL, 531, at p. 539. (8) 29 Mich., 320. 4 Burr., 2008. (9) 156 N.Y. Rep., 136. '3 Burr., 1452. (10) 95 U.S., 168, at p. 170.
3. 20.B., 326. (11) 1 Peters, 110, at p. 124. B. & A., 339.

Tue Kine v. Tue GovERNOR OF THE STATE or Sourn AUSTRALIA,

to declare the election partly void. It could either declare the who election void, or that one or more senators was or were not dul elected. It must, therefore, be taken here that the declava was that Mr. Vardon was not duly elected. The result of declaration was that he ceased to be a senator : secs. 197 (1y.), (v1), 205 (1) of the Commonwealth Electoral Act 1902. legislature treats such a case as one in which the term of of had de facto begun, see May's Parliamentary Practice, 10th p. 631. If the effect of the judgment of the Court of Dis

Returns was to make the election void ab initio, as if the had never been filled, then all Parliamentary proceedings were dependent upon the vote of that senator are avoided.

[GrirritH C.J. - There is no way of investigating the vali of the proceedings of Parliament]

At any rate, a vacancy arose after the senators' term of of had begun and before its expiration, and sec. 15 of the Constit tion applied. The election of the prosecutor was not merely) colourable : The King v. Mayor of Colchester (1). If the petition had not been filed he would have continued in his seat : See secs. 13, 20, 38 and 45 of the Constitution. The time for a popular ele tion has passed. [They referred to Rochester, Mayor of, v. Queen (2); In re Stafford, Coroner for (3); Maawell, I pretation of Statutes, 3rd ed., p 531.) According to the law practice of Parliament in England, the office of a member of the House of Commons is treated as becoming vacant if his election is- avoided by the Court of Disputed Returns : Stevens v. Tillett (4) May, Law and Practice of Parliament, 10th ed., p. 620; A' Law and Custom of the Constitution, 3rd ed., vol. 1., p. 162.

[GrivritH C.J. referred to Rogers on Elections, 7th ed., pp. 2, 354. 't:

If the present difficulty has not been provided for by the Constitution or by Parliament under its constitutional power: the English common law as to elections should apply, and the

(1) 2T.R., 259. (2) EL B. &E,, 1,024; 27 LJ.Q.B., 45, 434,

vacancy should be construed accordingly. [They referred H. ©. or A. 49 of the Constitution.] The vacancy having now been ne under sec. 15, the only way in which the validity of the Tue Kise

n of the new member can be tested is that provided by py,

At this stage the High Court has no power to grant mandamus, anions it might possibly have power to do so after the decision a

he Senate had been made known, if there was a duty on the

of some person amenable to mandamus. The power to in-

into election matters is not part of the judicial power of the

h Court as such, but is given to it as a special tribunal, and

ch tribunal by the Statute: Holmes v. Angwin (1). No pro- has been made for trying such questions as the present in e Commonwealth Electoral Act 1902; sec. 192 of that Act is e inapplicable.

no reference to voidness of elections. The term " vacancy " therefore be construed by reference to the Constitution ie. The certificate of the Governor General under sec. 7 is facie valid, and the senator whose name is certitied holds e office until his term expires, or his election is declared void, he is declared not to have been duly elected. Upon the hap- ning of any of those events a vacancy arises. [They referred In ve Carter and Kenderdine's Contract (2); Frost v. Mayor f Chester (3); The King v. Mayor of Winchester (4); Bowman Blyth (5); Linnett v. Connah (6); secs. 32, 33, 45 and 47 of Constitution.]

~The Court should lean against construing the word " may" in ¢. 12 as mandatory.

.L.R., 297. (5) 7 El, & BL, 26; 26 L.J.M.C., 57. 2) (1897) 1 Ch., 776. (6) (1902)St. R. Qa., 104.

'Tue Kine v THE GovERNOR oF THE Starx or Sourn AUSTRALIA.

[Grirrita C.J. - It is questionable whether it is necessary decide that in this case.]

Sir John Downer K.C. and Piper in support of the rule, sec. 15 applies to this case the consequence is that, on retirement of senators at the expiration of their term of of the places of those elected to fill the vacancy may be avoided owing to the default of officers over whom neither the State the candidates have control, and the election of senators away from the people and given to the State Parliament, whi the result will depend upon the state of parties. The lan, must be very strong and clear before the Court will so con: the section. 'The context shows that the vacancies there refer to are casual or interim vacancies arising in the places senators who had been duly elected. But there never had an election as to this particular place, and it must be deemed to have never been filled. [They referred to Rogers on Elections, 13th ed, p. 241; May, Parliamentary Practice, 11th ed., PP 631, 644; Hx parte Siebold (1).] 7

It was the duty of the Governor under the Constitution to issue a new writ for the election of a senator by the people. This Court has jurisdiction to issue a mandamus to compel him to do_ so. The Governor is not the Crown except to the extent of his. instructions, and when acting under them. He has no absolute immunity from being sued. If he is sued he may plead that the act or omission complained of was done or omitted in the exercise ' of his office, that it was an act of State, and it is then for the Court to inquire whether as a matter of fact and law that defence ' has been made out. If it is not made out he is liable in the same way and to the same extent as any other individual would be dt the duty in question had been imposed on him: Musgrave v. Pulido (2). The Governor is no part of the Commonwealth Government He is a public officer having certain duties imposed upon him by the Constitution to perform in the Commonwealth. If the i duty is improperly performed the Governor is clearly amenable to the jurisdiction of the High Court, and there is no reason on

neiple why he should not be amenable to its jurisdiction if he nits to perform the duty. The King can compel the perform- ance of any statutory duty by mandamus. [They referred to The , y. Lords Commissioners of the Treaswry (1).]

The Governor is the persona designata to perform the duty, d he is described as the Governor merely in order to indicate person. [They referred to Holmes v. Angwin (3): The King Arndel (4).] He does not perform the duty as Governor under is Commission, and his acts or omissions in regard to it can ver be acts of State. They can only be justified under the nstitution. The position is not affected by the fact that the ral words of the Governor's instructions may cover this icular duty, In this case he is not described as the Governor Council, though the Constitution expressly recognizes the dis- ction between a Governor simply and a Governor acting with e advice of the Executive Council. The context requires that e word "may" should be read as "shall." It is imperatively acted that the Senate shall be constituted in the manner bed, and all things necessary for its constitution must be by those upon whom the duty is imposed, whatever may be e form in which the duty is stated. If the duty cannot be nforeed by the High Court the Constitution will become ective, [They referred to Judiciary Act 1903, sees. 30, 33, d the Constitution, secs. 76, 77; Marbury v. Madison (5); in v. Hwnter's Lessee (6).] The argument that the King, represented by the Commonwealth, cannot proceed against the King as represented by the State was rejected in Municipal il of Sydney v. Commonwealth (7). 'The Governor is not

te, nor are the States dealt with as clothed with sovereignty.

\ey are, for the purpose of elections, mere geographical divisions,

nd for convenience the Governor of each State is selected as the

__ As to the question of vacancy, the seat may have been full in a 16 Q.B., 357 ; 20 L.J.Q. a (5) 1 Cran

(1901) A.C., 561, at pp. 575, 576. (6) 1 Whe 4C.L.R., 297. (7) 1C.L.

Tue Kine v THE GovERNOR oF THE STaTR or Sourn AUSTRALIA,

certain sense for some purposes, but it does not follow that wh the election has been avoided the place is to be deemed to h

been filled for the purpose of sec. 15. The reference in section to the seat becoming vacant should be construed in th same sense as in secs. 19,20 and 45. Secs. 13 and 15 provide the code for dealing with vacancies arising after a proper election the former at the expiration of the term of service, and the lat before such expiration. It is straining the language to apply 15 to the case of a vacancy which has never been properly fi Quo warranto is not the appropriate remedy because such a will not go to a member of Parliament, and the place is not now full, O'Loughlin having no colour of title: Reg. v. Mayor of (1); Rea v. Mayor of Cambridge (2); Re Borough of Bo (Tintagel) (3). This Court cannot inquire into or notice the f that O'Loughlin is taking part in the proceedings of the Senate, status conferred upon him by the Senate, or the reasons or inte tions of the Senate in admitting him. It must be assumed that Senate will admit a man who has a lawful title to sit. The minis terial duties of officers in regard to elections must be perfo without speculation as to consequences. The Senate has no power to compel the Governor, though this Court has. To compel would not be any interference with Parliament, but rather ai

it in securing its due constitution. [They referred to Stoa v. Hansard (4); Bradlaugh v. Gossett (5); Harford v. Lins

Barton J. This is an application on behalf of an elector the State of South Australia for a prerogative writ of mandam addressed to the Governor of that State, commanding him to cause a writ to be issued for the election of a senator to fill

has not een filled. The material fats are as follows : - At the end of the year 1906 the places of three of the senators (4) 9 A. & E., 1, at p. 118,

South Australia became vacant by effluxion of time under the ons of sec. 13 of the Constitution. An election was held course, and three persons were returned as duly elected. a petition presented to the Court of Disputed Returns the provisions of the Commonwealth Electoral Act 1902 it was declared that the election was void so far as regarded one of them. Thereupon both Houses of the Parliament of South istralia, assuming to act under the provisions of sec. 15 of the onstitution, sat together and chose a person to hold the place of the senator whose place had become vacant, this choice was dby the Governor, and the person so chosen has since sat yoted as a senator. The applicant contends that the case not within sec. 15,and that the attempted choice of the es of Parliament was a mere nullity. He maintains that m the election of a senator elected at a popular election omes ineffective for any reason, a new popular election must id, for which purpose the Governor of the State is bound to ea writ to be issued, and that the performance of this duty may be enforced by mandamus. e respondent contends that sec. 15 applies to all eases in ch there has been an election de facto, and that in such a e every person returned has a term of service, which may e with the declaration of the Court of Disputed Returns he was not duly elected. He says that, since challengeable elections become unchallengeable at the expiration of the time owed for petitioning, an irregular election is voidable and not d, and that the words "the place of a Senator" in see. 15 sequently mean the place de facto occupied, whether de jwre,

is necessary to refer to some of the provisions of the titution in detail. Sec. 7 of the Constitution provides that Senate shall be composed of senators for each State directly by the people of the State, voting . . . as one electorate." are to be chosen for a term of six years, and the names of he senators chosen for each State are to be certified by the jovernor of the State to the Governor General. Sec. 9 authorizes State Parliament to make laws for determining the time and of elections for the Senate. Sec. 11 provides that "the

H. C. or A. 1907. patie Tue Kise v Tae GOVERNOR or THE State or Sovrn AUSTRALIA.

~ Tue Kixe v THe GovERNOR or THE Stare or SourH AUSTRALIA.

Senate may proceed to the despatch of business, notwithstan the failure of any State to provide for its representation in tl Senate." This phrase seems to suggest primd fueie that doing of all things necessary for giving the State its repres tion in the Senate is entrusted to the State itself, an idea which is emphasized by the provisions of sec. 9 just quoted. See. 1: provides that "the Governor of any State may cause writs t be issued for elections of senators for the State." This, o course, means in any case in which the choice of a senator under the Constitution to be made by popular election.

Sec. 13 provides that "the term of service of a senator chosei in ordinary rotation shall be taken to begin on the first day January following his election" (except in certain cases not material). It was suggested that this provision is inconsistent w an election being held after the first of January to fill vaca which ought to have been filled at an election held before day, but we do not think that there is anything in this point. I the election ought now to be held, it should, we think, be ta to be held nwne pro tunc for all purposes. Otherwise the n purpose of securing a regular rotation of senators would b frustrated,

Sec. 15 provides that "if the place of a senator becomes vae before the expiration of his term of service, the Houses of Parlia- ment of the State for which he was chosen shall, sitting a1 voting together, choose a person to hold the place until expiration of the term, or until the election of a successor " prescribed. If the State Parliament is not in Session th Governor of the State in Council may appoint a person to the place of senator temporarily. In either case the name of person chosen or appointed is to be certified by the Governor o! the State to the Governor General.

Sec. 19 provides for the vacation of a seat in the Senate resignation, and sec. 20 for the vacation of a seat by con absence without permission.

Sec. 45 provides for the vacation of the seat of senator up the arising of certain disqualifications.

Sec. 47 prescribes that "until the Parliament otherwise p vides, any question respecting the qualification of a senator or

'ber of the House of Representatives, or respecting a vacancy H.C. oF A. in either House of the Parliament, and any question of a disputed bell n to either House, shall be determined by the House in Tye Kise which the question arises." a

• See. 21 provides that whenever a vacancy happens in the Senate Governor

t shall be notified by the President or by the Governor General oe to the Governor of the State in the representation of which the Aueenaaee ney has happened. It was not disputed in argument that a ancy, occurring in consequence of a declaration under sec. 47 a senator was not duly elected, would be a vacancy within the meaning of sec. 21.

Tn execution of the power conferred by sec, 47, the Common- Electoral Act 1902 provided that the Court of Disputed urns may declare that a senator who has been returned as d was not duly elected, or that an election was absolutely (sec. 197). It also provided (sec. 205, sub-sec. m1.), that if Court declares that the election is absolutely void a fresh lection shall be held.

It is clear, however, that when a vacancy occurs in the Senate must be filled in the manner preseribed by the Constitution, atever that may be, and that the Parliament cannot by any e make any valid provision to the contrary. It is equally that the Senate could not by any exercise of its powers sec. 47 affect the question of the proper mode of filling cancy, and that the powers of the Court of Disputed Returns not more extensive. In the present case, as already stated, decision of the Court was that the election was void as ded one of the senators returned. Its validity as regarded other two was not impeached. The Court did not, therefore, fact, declare the election, i.c., the election held under the writ nmanding the election of three senators, to be wholly void. fe think the form of the order is quite immaterial. The only vant fact is that the attempted choice of one of the three senators, who ought under see. 7 to have been directly chosen by

e people, was ineffectual. There is no doubt then that there a vacancy within the meaning of sec. 21. Was it a vacancy the meaning of sec.15? And, if not, has this Court any

H.C. oF A. and what jurisdiction to rectify the alleged mistake in the ee, of choosing by the issue of a mandamus to the Governor? 'us Kine The learned counsel for the Governor of South Australia

tim tend that, whatever may be the proper mode of choosing a se Goverwor under the circumstances, a mandamus will not lie against

or Sovrx Governor. The counsel for the Commonwealth (the interven AvstRaLtA. fo ther contend that no mistake has been made. We think we are bound first to consider the objection to the jurisdic!

the Court. The answer to the question thus raised for decision dep upon the nature of the functions and duties of the Governoi a State under the Constitution with respect to the election senators. The formal functions and duties of the Governor are as already pointed out, (1) to cause writs to be issued for tl election of senators (sec. 12); (2) to certify to the Gove General the names of senators elected, chosen, or appointed (s 7, 15); and (3) to receive notification of vacancies in the office senator (sec. 21). The object of the notification required by sec 21 is obviously to inform the State, gua State, of the vacancy, 80 that the State may do what it thinks necessary in accordance with the Constitution to complete its representation in the The Governor, as the officiating Constitutional Head of the St is accordingly named as the person to whom the notification is to be given, and the notification must be regarded as addressed | him in that capacity. So, in certifying to the Governor Geni the names of the senators elected, chosen, or appointed Governor must be regarded as acting in the capacity of the Cot stitutional Head of the State, being in that capacity the channel of communication with the officiating Constituti Head of the Commonwealth, the Governor General. We that he must be regarded as acting in the same capacity wl discharging the function of issuing a writ for the election senators under sec. 12. For the purposes of the present i the case ey be considered as if the Governor had omitted

panes by effluxion of time. We will assume, without de that sec. 12 imposes a duty upon the Governor to issue a writ ; such a case. But the question remains: To whom does he ows

h duty ? A somewhat analogous duty is cast upon the State s under the Constitutions of the States, all of which e that upon a dissolution of the Houses of Assembly the for a general election are to be issued by the Governor. has never been suggested that if the Governor failed to issue he writs a mandamus would lie from a State Court to compel im to do so. There is, of course, a remedy in such a case but it is to be sought from the direct intervention of the Sovereign and by recourse toa Court of law. The case of an election to the e is not quite analogous. It is conceivable that the Executive Government of a State for the time being might desire that no senator should be chosen to fill a particular vacancy. If they advised the Governor to abstain from taking any action to ill it, and refused to afford him the necessary administrative acilities, and he accordingly did nothing, it may be that he ld have failed in his duty. But, if so, it is clear that the ty would be one which he owed to the State collectively. It not easy to see how, in such a case, he could perform this duty out dismissing his Ministers and finding others, and that er is manifestly one the exercise of which could not be re- wed by any authority but the Sovereign. The duty, therefore, e of the duties which the Constitufional Head of a State s to the State (and in the case of a Governor, but in a lightly different sense, to the Sovereign), and its performance be enforced in the manner appropriate to the case of such Instances of such duties - duties of imperfect obligation e familiar to students of Constitutional Law.

It follows from what we have said with regard to the election 'senators that, although the Governor is the person designated bring into operation certain provisions of the Constitution ch ought to be brought into operation, and which cannot be ought into operation without his action, he cannot be regarded d hoe as an officer of the Commonwealth. The States are subordinate to the Commonwealth, and the Commonwealth cannot command the Constitutional Head of a State to

the necessary steps to be taken to secure the full represent, of a State in the Senate, it is not easy to see why its autho should be limited to the case when the mode of choice alleged appropriate is a popular election. There are in fact three n in which the place of a senator may be filled - popular ele choice by both Houses of Parliament, and appointment by t Governor with the advice of the Executive Council. In ac where the choice ought to be made by both Houses of Parliamen it is quite clear that this Court could not command those House to meet and choose a senator, and it would be immaterial whel a writ had or had not been issued by the Governor for holding popular election. It is equally clear that the Governer could n be commanded to do an act which he can only do with the ad of the Executive Council. As, therefore, this Court would no authority to correct by mandamus a mistake of one kindas t the mode of choice, it seems clear that it was not intended to ha authority to interfere by mandamus in such matters at all. Apart from these considerations we think that a mandamu will not lie to the Governor of a State to compel him to do act in his capacity of Governor. There is, of course, no British precedent for such a writ. Reference was made in argument t the cases in which it has been held that an action will lie aga a colonial Governor for wrongful acts done by him. But it b no means follows that, because a Governor is liable to an acl for a wrongful act done by him to the prejudice of an individ he is liable to be commanded by mandamus to repair an omis to do a lawful act. It is settled law that a mandamus will not lie against officer of the Crown to compel him to do an act which he o to do as agent for the Crown, unless he also owes a separat duty to the individual seeking the remedy. We do not that the Governor of a State in the issuing of a writ for the election of senators is acting as agent for the Sovereign - in this sense, since the duty imposed by the Constitution imposed by Statute law and not by delegation from the Sover- eign himself. But, as already pointed out, it is a duty cast upon him as Head of the State. And the same reasons which

yent a Court of law from ordering the Sovereign to perform a H. ©. or A. utional duty are applicable to a case where it is alleged by the Constitutional Head of a State has by his omission ty» Kise failed in the performance of a duty imposed on him as such i;

d of the State. GovERNOK ; es ite or THE Stare his argument is independent of that arising upon the language - or Sovrn 'see. 75 of the Constitution. But in our opinion the Governor "°° State is not, so far as regards the matter now in question, an cer of the Commonwealth within the meaning of the section. do we think that the Judiciary Act has enlarged the tion of the Court in this respect.

For these reasons we hold that the application fails.

We refrain from expressing any opinion upon the other rtant and difficult question which the applicant desires to decided. It seems to be clear that the question whether e is or is not now a vacancy in the representation of South stralia in the Senate is one of the questions to be decided by Senate under sec. 47 "unless the Parliament otherwise pro- Parliament can, no doubt, confer authority to decide h a question upon this Court, whether as a Court of Disputed turns or otherwise. But until the question is regularly raised or decision we reserve our opinion upon it.

Rule nisi for a mandamus discharged with costs against the applicant. Inter- venants to bear their own costs.

& Co., Sydney. licitors, for the respondent, The Crown Solicitor for South alia; The Crown Solicitor for the Commonwealth.