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[2003] HCA 37
respondent. Leave granted to present the further written submissions dated 11 June 2003; application for an order nisi dismissed with costs.
The High Court rejected Kelly's attempt to obtain an order nisi challenging the 2001 New South Wales Senate election. The nomination deadline in the writ was 10 days after the writ date under the Court's method of counting. The Commonwealth and New South Wales rules matched on the relevant timing requirements. The statutory election petition procedure could not be bypassed by raising further election grounds through this proceeding, and the Court found no jurisdictional error in the earlier decision dismissing Kelly's petition. Gummow J granted leave for further written submissions but dismissed the application with costs.
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2,050 words · generated 29/09/2026
The proceeding concerned the 2001 half-Senate election for New South Wales and the timing of nominations. The writ was signed by the Governor of New South Wales on 8 October 2001. It set noon on 18 October 2001 as the deadline for nominations. The election was held on 10 November, and six senators were declared elected on 5 December. The Governor certified the writ's return the following day ([2]–[5]).
6 cited instruments linked from this judgment.
Ned Kelly's nomination had been rejected by an officer of the Australian Electoral Commission for failing to comply with the nomination requirements in s 170 of the Commonwealth Electoral Act 1918 (Cth). Kelly then petitioned the High Court, sitting as the Court of Disputed Returns, to dispute the validity of the New South Wales Senate election. The petition was referred to the Federal Court for trial and dismissed by Madgwick J on 11 September 2002. One argument was that the nomination date should have been 19 October rather than 18 October ([7]–[8]).
Kelly subsequently sought an order nisi in the High Court, invoking s 75(v) of the Constitution and seeking a range of remedies, including prohibition, mandamus, an injunction, declarations and leave to exhibit an information of quo warranto ([17]). He also raised arguments about the operation of the Commonwealth and New South Wales election legislation and an apparent challenge to the Governor-General's prorogation of Parliament ([11], [21]–[22]).
Gummow J granted leave for Kelly to provide further written submissions, but dismissed the application for an order nisi with costs ([27]–[28]). The order did not decide a new election petition. It dealt with whether Kelly had shown a basis for the proposed extraordinary relief, in light of the earlier petition and the statutory framework.
The central timing argument failed on the words of the Commonwealth Act. Section 156(1) required the nomination date to be at least 10 days, and no more than 27 days, after the date of the writ. The writ date was 8 October. Counting from the following day, 9 October, made 18 October the tenth day. Gummow J therefore concluded that the writ complied with s 156(1) ([3]–[5]).
The judgment carefully avoided deciding whether s 36(1) of the Acts Interpretation Act 1901 (Cth) applied to s 156(1). That provision excludes the given day when reckoning a prescribed period. Gummow J explained that, even if it applied, excluding 8 October and counting from 9 October still made 18 October the tenth day. The question of the provision's application was therefore unnecessary to resolve ([6]). Kelly's submission that both the first and last days had to be excluded relied on a Queensland provision, s 38(1) of that State's legislation. Neither the Commonwealth nor New South Wales provisions contained the equivalent wording on which that submission depended ([9]–[10]).
The asserted conflict between Commonwealth and New South Wales law also failed. Section 4A(1) of the Senators' Elections Act 1903 (NSW) used the same 10-to-27-day period as s 156 of the Commonwealth Act. The NSW provision about the noon nomination deadline likewise followed the Commonwealth provision. In Gummow J's words, the laws showed “symmetry rather than disharmony” ([11]–[12]). The Court explained that the constitutional framework allocates legislative roles: the Commonwealth may prescribe a uniform method of choosing senators, while the States retain specified powers, including legislation about election times and places ([13]–[14]). It did not need to determine a constitutional issue arising from the applicant's notices under s 78B of the Judiciary Act ([15]).
The form and scope of relief were further obstacles. Quo warranto is concerned essentially with alleged usurpation of public office, as described by the authorities discussed in the judgment. The relief Kelly sought went beyond that subject ([18]–[19]). Separately, s 353(1) of the Commonwealth Act prescribed a petition under Part XXII as the way to dispute an election's validity, “and not otherwise”. The proceeding could not be used to add grounds outside the petition that had already been dismissed ([19], [25]).
Gummow J also considered whether the earlier decision involved jurisdictional error. The Commission did not argue that s 368, which makes Court of Disputed Returns decisions final and conclusive, barred s 75(v) relief where there was a failure to exercise jurisdiction or jurisdictional error. But the judge found no error of that kind in Madgwick J's reasons or order ([23]–[25]). The additional grounds had no prospects of supporting an order nisi, and the proposed order was also expressed in technically unsatisfactory terms ([25]).
The prorogation argument was not resolved as a separate constitutional question. It appeared to rest on the claim that the Governor-General's proclamation took effect before publication in the Gazette. Gummow J said s 17 of the Commonwealth Acts Interpretation Act could not control the meaning of “Proclamation” in s 5 of the Constitution. The judge also recorded uncertainty about whether Kelly maintained the ground, and ultimately concluded there was no present occasion to enter into a constitutional question ([21]–[22], [15], [25]).
The judgment applied the statutory scheme as it stood in 2001–2003. It treated s 156(1) of the Commonwealth Act as setting the relevant period for nomination, with 18 October satisfying the requirement when counted from the day after the writ date. It did not resolve whether s 36(1) of the Commonwealth Acts Interpretation Act applied, because the answer would not affect the calculation ([5]–[6]).
The reasons also describe the constitutional and legislative arrangement for Senate elections. Section 10 of the Constitution operated until the Commonwealth Parliament legislated. Section 9 gives the Commonwealth Parliament power to prescribe a uniform method of choosing senators, subject to which State Parliaments may legislate on the method, and reserves State legislative power concerning the times and places of Senate elections. Section 12 provides for State Governors to issue Senate election writs ([13]). The judgment used this framework to explain why the relevant Commonwealth and New South Wales provisions could operate symmetrically rather than conflict ([11]–[14]).
For election challenges, the decision emphasised the express statutory route in s 353(1): an election's validity could be disputed by a petition under Part XXII and not otherwise ([19]). That was applied to the facts before Gummow J, where Kelly had already brought such a petition and sought to pursue further grounds through a different proceeding.
The supplied judgment does not state what the legislation or doctrine became after 25 June 2003. It therefore does not support a claim that the provisions remain unchanged or that later courts have adopted, limited or displaced this reasoning. Those questions require later sources not included here.
At [5], Gummow J concluded: “Thus, the writ complied with s 156(1).” In context, the judge counted 9 October as the first day after the 8 October writ date, making 18 October the tenth day. The conclusion was confined to the statutory timing issue raised in the proceeding.
At [6], the judge said that applying s 36(1) of the Commonwealth Acts Interpretation Act would produce “no different result”. This matters because the decision did not settle whether that interpretation provision governed the calculation under s 156(1). It held only that the outcome was the same either way.
At [11], the judge described the legislation as showing “symmetry rather than disharmony”. The next paragraphs explain the basis: the NSW Act used the same nomination period and noon deadline as the Commonwealth Act ([12]). The phrase is a summary of the comparison, not a general ruling that Commonwealth and State election laws can never conflict.
At [19], Gummow J stated that the election's validity “may be disputed by petition under Pt XXII of the Act and not otherwise”. In plain English, the statutory petition route was the prescribed avenue for challenging this election. The Court relied on that provision when rejecting an attempt to use the present proceeding to raise election grounds beyond the petition.
At [25], the judge said there was “no error going as to the exercise of the Court's jurisdiction” in the reasons and order dismissing the earlier petition. That addresses the potential basis for judicial review under s 75(v) raised in the proceeding. It does not say that s 75(v) can never apply to a Court of Disputed Returns decision: the Commission had not advanced that absolute argument ([24]).
The decision is directly relevant to a dispute about calculating the 10-to-27-day nomination period under s 156(1), where a writ date and nomination date must be compared. Its particular calculation involved a writ dated 8 October 2001 and a nomination deadline of 18 October 2001. The reasoning is tied to the wording considered in the judgment, including the provisions deeming the writ issued and fixing the hour of nomination ([3]–[6]).
It is also relevant where a party alleges that New South Wales nomination rules conflicted with Commonwealth rules, but the provisions under examination contain matching time periods and deadlines. The Court's comparison is specific to s 4A(1) and s 6 of the NSW Act and the corresponding Commonwealth provisions ([11]–[13]).
The statutory exclusivity discussion is pertinent to a case seeking to challenge an election's validity through a proceeding other than the Part XXII petition. The judgment's application arose after Kelly had already petitioned and sought further relief, including grounds going beyond that petition ([8], [17], [19], [25]).
Finally, the reasons discuss the limits of quo warranto where the relief sought extends beyond alleged usurpation of public office, and the availability of s 75(v) review where jurisdictional error is alleged ([18]–[19], [24]–[25]). The judgment does not establish that every claim concerning an elected public officer, or every challenge after an election petition, will be treated identically. The statutory wording and the nature of the particular relief remain central to the reasoning.
The judgment supplied here contains no later judicial treatment of Re Australian Electoral Commission; Ex parte Kelly. It was delivered on 25 June 2003, and the sources it cites are authorities that pre-date it. On this material alone, it is not possible to say whether later courts followed, distinguished, limited or questioned its reasoning.
The judgment itself refers to Liston v Davies and Re Skyring's Application in explaining the history and scope of quo warranto ([18]). It cites Sue v Hill in connection with the rule that election validity is disputed through the statutory petition process ([19]). These are prior authorities discussed or referred to by Gummow J, not later treatment of this decision. The judgment also notes that Grandchamp v Masse concerned particular Quebec municipal-election legislation and was of no assistance to either party ([26]).
A later-treatment account would need subsequent judgments and, ideally, current versions of the relevant legislation. Neither is provided in the source material for this analysis.
The judgment expressly leaves open whether s 36(1) of the Commonwealth Acts Interpretation Act applied to s 156(1), since deciding that issue could not change the result ([6]). It therefore should not be cited from this source as having resolved that interpretive question.
The Court did not determine the substantive constitutional validity of the Governor-General's prorogation proclamation. The judge observed that s 17 of the Commonwealth Acts Interpretation Act could not control s 5 of the Constitution, but did not decide the broader question about the proclamation's effect or timing. The judgment also records that it was unclear whether Kelly maintained that ground ([21]–[22], [25]).
The reasons do not set out a general test for every application of quo warranto, beyond describing its essential concern and finding that the relief sought in this case went beyond it ([18]–[19]). Nor do they resolve the full boundaries of s 75(v) review of Court of Disputed Returns decisions. The Commission accepted that relief might remain available where jurisdiction was not exercised or jurisdictional error occurred, while Gummow J found neither shown on the record before him ([24]–[25]).
Finally, the judgment does not provide later legislative amendments or subsequent judicial consideration. Those materials would be needed to assess the present operation of the statutory provisions and the later development of the reasoning.
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D C Fitzgibbon for the applicant/prosecutor (instructed by the applicant/ prosecutor)
No appearance for the first to thirteenth respondents
J Basten QC with R M Henderson for the fourteenth respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Parliamentary elections (Cth) - Senate - New South Wales half Senate election - Whether date fixed for close of nominations in writ for election issued by Governor of New South Wales complied with s 156(1) of the Commonwealth Electoral Act 1918 (Cth) and s 4A(1) of the Senators' Elections Act 1903 (NSW) - Relationship between Commonwealth Electoral Act 1918 (Cth) and Senators' Elections Act 1903 (NSW) - Nature of relief by way of quo warranto - Whether proclamation by Governor-General proroguing Parliament may validly take effect prior to its publication in the Commonwealth of Australia Gazette.
"Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event."
The given day, act or event would be the date of the writ and, excluding 8 October, the result, beginning with counting on and from 9 October, was that the tenth day was 18 October. Thus, if indeed s 36(1) did apply to s 156(1) of the Act, which it is unnecessary to determine, the outcome, compliance with s 156(1), would be the same.
"If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and -
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case - by including the day on which the purpose is to be fulfilled."
There is no equivalent to pars (a) or (b) of s 38(1) in the legislation of the Commonwealth or New South Wales.
"Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State."
The phrase "but subject to this Constitution" directs attention to s 9 of the Constitution. This provides:
"The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.
The Parliament of a State may make laws for determining the times and places of elections of senators for the State."
The second sentence in s 9 subjects State laws prescribing the method of choosing Senators to any federal law, such as the Act, prescribing a uniform method for all the States. The third sentence in s 9 preserves to the States an area of exclusive power that is not subject to Commonwealth legislative preemption. The area so preserved is for laws which make provision "for determining" (i) the times and (ii) the places of, in each case, the election of State Senators[5]. It may be added that the provisions of s 12 of the Constitution repose in State Governors the power to cause writs to be issued for elections of Senators for the States.
"4.447 The reason why the States were given the powers they presently have in relation to the election of senators is that, when the Constitution was being prepared in the 1890s, it was agreed that the Senate should be a House representative of States. In that House the federating colonies wanted to be equally represented. Initially the idea was that senators would not be chosen directly by the electors of a State but rather would be chosen by the Houses of the State they were to represent[7].
4.448 Even though it was later decided that senators should be directly elected, it was accepted that States should be assured certain controls over the elections of their senators, namely, exclusive power to legislate on the times and places of elections of senators for the State, a concurrent power with the Federal Parliament to legislate on the method of choosing those senators, and exclusive powers in relation to the issue of writs for Senate elections."
"All decisions of the Court [of Disputed Returns] shall be final and conclusive and without appeal, and shall not be questioned in any way."
Leave granted to present the further written submissions dated 11 June 2003; application for an order nisi dismissed with costs.