Re Wood [No 3] [1988] HCA 22

(2) That the further counting and recounting of the ballot-papers be conducted in accordance with the directions set out in par. 9 of the affidavit of Colin Anfield Hughes sworn 19 May 1988 and numbered (1) to (8) inclusive, substituting in direction (1) the word "preferences" for the word "preference" where it appears for the second time.

The Court delivered the following written judgment: -

1988, May 12 Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Mason C.J.

On 5 June 1987 his Excellency the Governor of New South Wales caused a writ to be issued for the election of 12 senators for the State to serve in the Senate of the Parliament of the Commonwealth. One of the candidates who nominated for election was William Robert Wood. A poll was required and it was duly taken on 11 July 1987. On 25 August 1987, the Australian Electoral Officer for New South Wales returned the writ certifying the names of the 12 senators elected in order of their election. William Robert Wood was returned as elected in the 12th place. On 27 August 1987, in accordance with s. 7 of the Constitution, the Governor certified to the Governor-General the names of the chosen senators. Subsequently Senator Wood has sat as a senator.

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.

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:

(i) an elector entitled to vote at the election of Members of the House of Representatives; or

(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).

And s. 162 provides: No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated. Section 44 of the Constitution prescribes several grounds of disqualification. It provides: 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

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

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.

Pursuant to s. 377 of the Act, the President of the Senate transmitted to the Court of Disputed Returns a statement of the questions upon which the determination of the Court was desired together with the relevant papers ("the reference"). The Full Court sat to determine the questions stated in the reference. We heard or received in writing submissions made on behalf of the Attorney-General for New South Wales, the Attorney-General for the Commonwealth, the Australian Electoral Commission, the Attorney-General for Queensland, Mrs. Elaine Nile, Senator Wood, Mr. M. H. Mackerras and the Rev. J. P. Haldane-Stevenson. Counsel for Mrs. Nile sought to widen the issues involved in answering question (a) to embrace alleged grounds of disqualification of Senator Wood which do not appear in the reference. The Court rejected that submission, holding that it has no jurisdiction to go beyond the terms of the reference transmitted by the President of the Senate under s. 377 and that the reference showed that question (a) was to be determined by reference to the materials in the reference itself.

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. The jurisdiction thus conferred on the respective Houses of the Parliament accords with the jurisdiction which the House of Commons exercised with respect to the election, return and qualifications of its members (see Taswell-Langmead's English Constitutional History, 11th ed. (1960), pp. 321-322, 332-333, 580-581; Anson's Law and Custom of the Constitution, 5th ed. (1922), vol. 1, pp. 177-182) until the passing of The Parliamentary Elections Act 1868 (31 & 32 Vict. c. 125) U.K.. By that Act the U.K. Parliament conferred on the judges of the superior courts of common law jurisdiction to determine disputes as to the election and return of members. The jurisdiction thus conferred was exclusive, s. 50 providing that "no Election or Return to Parliament shall be questioned except in accordance with the Provisions of this Act". The time limited for presenting an Election Petition was, with certain exceptions, 21 days after the Return: s. 6(2). The trial judge was required to determine whether "the Member whose Return or Election is complained of, or any and what other Person, was duly returned or elected, or whether the Election was void": s. 11(13).

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.

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 [39] , 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" [40] .

1. (1850) Legge 618. 2. (1850) Legge, at p. 628.

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. The jurisdiction of the respective Houses of the Parliament to determine questions respecting the qualifications of their own members or respecting a vacancy in the particular House was not then conferred on the Court of Disputed Returns. That jurisdiction remained vested in the respective Houses of the Parliament and it might have been exercised by either House in the same way as the House of Commons had exercised a like jurisdiction after the passage of The Parliamentary Elections Act. The jurisdiction was acknowledged in the judgment of the High Court in R. v. Governor of South Australia [1] . In 1907, after the election of Mr. Vardon as the third senator for South Australia was declared by Barton J. in the Court of Disputed Returns to be absolutely void (Blundell v. Vardon [2] ), proceedings were instituted in the High Court to compel the Governor of South Australia to issue a writ for a new election in consequence of a vacancy in the place to which Mr. Vardon had been returned. Barton J., speaking for the Court, said [3] : 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 s. 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. Thereafter jurisdiction to determine questions respecting qualifications and vacancies was conferred on the Court of Disputed Returns by the Disputed Elections and Qualifications Act 1907 Cth. 1. (1907) 4 C.L.R. 1497. 2. (1907) 4 C.L.R. 1463. 3. (1907) 4 C.L.R., at p. 1513.

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. Being conferred in the language of s. 47 of the Constitution, there is no reason to think that the jurisdiction of the Court when a question is referred to it under Div. 2 is more limited than the jurisdiction which might have been exercised by a House of the Parliament if it were determining the question referred under s. 376 of the Act. The jurisdiction conferred on the Court of Disputed Returns by Div. 2 is not restricted by the grant of jurisdiction contained in Div. 1. The categories of questions mentioned in s. 47 of the Constitution (and reproduced in ss. 353 and 376 of the Act) are not mutually exclusive, as history shows.

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 [4] . 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 [5] 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.

1. (1850) Legge 618. 2. (1850) Legge, at p. 627.

Senator Wood's election is not now impeachable under Div. 1: see Nile v. Wood [6] . No doubt one of the purposes of Div. 1 is to achieve finality in an election (In re Berrill [7] ), 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 [8] 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.

1. Ante, p. 133. 2. (1978) 52 A.L.J.R. 359; 13 A.L.R. 301. 3. (1850) Legge, at pp. 626, 629, 631.

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;

The powers expressly conferred by s. 379 are added to those conferred by reference to s. 360 in order to ensure that the Court may fully determine questions respecting qualifications and vacancies which arise consequent upon a choice or appointment of a senator under s. 15 of the Constitution as well as questions arising consequent upon an election under s. 7. The powers set out in s. 360 are conferred "so far as they are applicable". The effect of their incorporation into the armoury of the Court is to render available all or any of them as may be found appropriate in the exercise of jurisdiction under Div. 2 in a particular case. The presence of the phrase "so far as they are applicable" supplies no warrant for reading down the grant of jurisdiction contained in Div. 2 and it would be erroneous to construe that grant by assuming the inapplicability of some s. 360 powers and to find in that assumption a justification for reading it down.

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.

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 [9] , 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." Or, it might be added, "by whom he could not lawfully have been chosen".

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, e.g., Sir Hugh Fraser, Law of Parliamentary Elections and Election Petitions, 3rd ed. (1922), pp. 62-63. In Gosling v. Veley [10] , 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. Thus an election might have been held to be voidable where the disqualification arose only on a judicial finding that the candidate has engaged in disqualifying conduct; for example, bribery of electors: see Drinkwater v. Deakin [11] . In that case Brett J. (as he then was) said [12] : 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. The same distinction underlay the decision of Mitchell J. in Crafter v. South Australia [13] where her Honour construed the statute as conferring jurisdiction on the Court of Disputed Returns to invalidate an election only as from the date of its declaration of invalidity. But a person who lacks the qualifications required by s. 16 of the Constitution and prescribed by s. 163 of the Act cannot be a senator and is therefore incapable of being chosen as a senator. That incapacity does not flow from the making of a judicial declaration that he lacks the requisite qualifications. 1. (1847) 7 Q.B. 406, at p. 437 [115 E.R. 542, at p. 554]. 2. (1874) L.R. 9 C.P. 626. 3. (1874) L.R. 9 C.P., at p. 644. 4. (1981) 28 S.A.S.R. 86.

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 [14] ; R. v. Parry [15] , 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.

1. (1808) 10 East. 211 [103 E.R. 755]. 2. (1811) 14 East. 549 [104 E.R. 712].

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 [16] :

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. 1. (1907) 5 C.L.R., at pp. 208-209.

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 [17] ) because Senator Wood was incapable of filling the twelfth 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 [18] and cf. Pritchard v. Mayor, &c. of Bangor [19] ), 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 [20] . 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.

1. (1874) L.R. 9 C.P., at p. 638. 2. [1899] 1 Q.B. 852, at p. 862. 3. (1888) 13 App. Cas. 241. 4. [1962] 2 Q.B. 350.

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, e.g., In re Parliamentary Election for Bristol South East [21] . 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.

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 [22] . 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.

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 per cent 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.

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 [23] 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.

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 . Senator Wood did not validly enter upon a term of service; he did not obtain a place which has become vacant.

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.

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.

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.

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.

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 six 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.

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.

In answering these questions, it has not been necessary to determine whether Senator Wood was incapable of being chosen or of sitting as a senator by reason of the provisions of s. 44(i) of the Constitution. The interpretation of s. 44(i) and its applicability to an Australian citizen, who is also a citizen or who may, conceivably against his own wishes, be "entitled to the rights or privileges of a citizen" of the United Kingdom or of countries other than Australia, are questions of great contemporary importance. As those questions were not fully argued, their resolution must be left for another day.

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).

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.

June 7 Mason C.J. delivered the following written judgment: -

On 12 May 1988 the Full Court answered the questions referred by the Senate to the Court of Disputed Returns pursuant to ss. 376 and 377 of the Commonwealth Electoral Act 1918 ("the Act") respecting the place for which William Robert Wood was returned. The Court answered the questions as follows:

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.

At the conclusion of its judgment the Court stated: 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). The Court noted that the jurisdiction of the Court to perform any further function in the matter had not been argued and went on to say that it would not embark on the performance of any further function except on the express application of one of the parties.

The Attorney-General for the Commonwealth has now made application for the following orders:

That the Australian Electoral Officer for the State of New South Wales undertake further counting and recounting of the ballot-papers cast for candidates for election for the Senate pursuant to the writ issued by the Governor of New South Wales dated 5 June 1987 for the election of 12 Senators for the State of New South Wales for the purpose of determining the candidate entitled to be elected to the place for which Senator Wood was returned.

That the further counting and recounting of the ballot-papers be conducted in accordance with such directions as to the Court seem meet.

That there be liberty reserved to the parties to apply to a Justice of the Court in respect of any further questions which may arise as to the method of further counting and recounting of the ballot-papers.

That upon the completion of the further counting and recounting the Australian Electoral Officer for the State of New South Wales report to the Court the candidate identified as entitled to be elected.

That the candidate so identified be declared duly elected as a Senator for the State of New South Wales for the place for which Senator Wood was returned.

Notice of the application has been given to the other parties to the proceedings.

The Attorney-General requests the making of orders 1-4 above immediately, with a view to the making of order 5 upon receipt by the Court of the report referred to in order 4. The Solicitor-General for the Commonwealth, who appeared on behalf of the Attorney-General, submitted that the Court has jurisdiction to make the orders sought. The existence of jurisdiction has not been contested by any of the parties. The only matter in issue before me is whether it is appropriate to make the particular orders sought in the notice of motion.

Before turning to that issue I make these comments on the matter of jurisdiction. By s. 379 of the Act, on the hearing of any reference under Pt XXII, the Court has the powers conferred by s. 360 so far as they are applicable. Section 360(1)(vi) authorizes the Court to declare any candidate duly elected who was not returned as elected. It seems to me that as an incident of the exercise of this power the Court can give appropriate directions with respect to the counting or recounting of ballot-papers at an election. The giving of such directions will facilitate the exercise of the power conferred by s. 360(1)(vi) and will enable the vacancy to be filled as quickly as possible.

According to an affidavit of the Electoral Commissioner, the ballot-papers for the 1987 New South Wales Senate election are in the possession of the Australian Electoral Commission and the Australian Electoral Officer for that State is able to conduct the further counting or recounting required by the answer to question (b), subject to the Court giving certain directions set out in par. 9 of that affidavit.

(1) a vote indicated on a ballot-paper opposite the name of Robert Wood be counted to the candidate next in the order of the voter's preference and the numbers indicating subsequent preference[s] be treated as altered accordingly;

(2) the further counting and recounting be conducted as nearly as practicable in accordance with the relevant provisions of s. 273 of the Act as if there were 12 vacancies to be filled;

(3) the further counting and recounting identify which candidate not being one of the eleven already returned as duly elected is the first entitled to be elected;

(4) where a voter has indicated in the manner described in sub-s. 239(2) or sub-s. 239(3) of the Act a wish to adopt the group voting ticket of the Nuclear Disarmament Party whose candidates appeared as Group E on the ballot-paper for the 1987 election, the voter's vote be dealt with, subject to direction (1) above, and so far as is practicable, in accordance with s. 272 of the Act notwithstanding that candidate Dunn acting alone would not have been able to make a joint request under s. 168 of the Act;

(5) notwithstanding direction (1) any ballot-paper ruled to be informal during the 1987 Scrutiny be treated as informal in the further counting and recounting;

(6) notwithstanding direction (1) any ballot-paper ruled to be formal during the 1987 Scrutiny be treated as formal in the further counting and recounting;

(7) notwithstanding direction (1) any ballot-paper showing the same preference for candidate Wood and one or more other continuing candidates be set aside as exhausted in accordance with s. 273(26) at the point in the scrutiny at which it would have been set aside had Robert Wood been a candidate eligible for election; and

(8) ballot-papers marked with group voting ticket votes not be physically counted again but that the group voting tickets figures ascertained in the 1987 Scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting.

Counsel for Mrs. Nile submits that the further counting should take the form of simply eliminating the votes for Robert Wood and declaring Mrs. Nile, the candidate with the highest number of votes after Robert Wood, to be elected. Alternatively, counsel for Mrs. Nile submits that primary and preferential votes for Robert Wood should be treated as informal, except to the extent that preferential votes otherwise informal might be saved by s. 270. Each of the two submissions is inconsistent with the judgment delivered on 12 May 1988. The Full Court stated:

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 Tewkesbury [25] . 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. 1. (1868) L.R. 3 Q.B. 629, at p. 634.

Counsel for Mrs. Nile then submits that I should not give direction (4) because it requires that counting take place on the footing that voters could adopt the group voting ticket of the Nuclear Disarmament Party whose candidates (Robert Wood and Irina Dunn) appeared as Group E on the ballot-paper. The argument is that Robert Wood, not being qualified as a candidate, could not join with Irina Dunn to have their names grouped as candidates under s. 168 or lodge a statement under s. 211 adopting a group voting ticket, with the result, so it is argued, that the provisions of s. 272, which deem ballot-papers to have been marked in accordance with a group voting ticket have no application to votes for Group E candidates marked in the manner described in s. 239(2) and (3). This submission is again at odds with the Full Court judgment, the effect of which is that, though Robert Wood was disqualified, his nomination was in order and his name was properly on the ballot-paper. The Court observed:

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.

The point is that only the election of Robert Wood miscarried so that a primary or preferential vote for him must be disregarded. But in other respects the election for the Senate was valid and in counting the votes it is necessary to have regard to the group voting ticket process as it related to the Group E candidates because that process was a central feature of the ballot-paper. As the electors were entitled to vote in accordance with a group voting ticket process, it must be taken into account in order to give effect to the intentions of the voters as expressed in the ballot-papers.

I would therefore give direction (4). The other directions do not call for any comment.

(2) That the further counting and recounting of the ballot-papers be conducted in accordance with the directions set out in par. 9 of the affidavit of Colin Anfield Hughes sworn on 19 May 1988 and numbered (1) to (8) inclusive, substituting in direction (1) the word "preferences" for the word "preference" where it appears for the second time.

Mr. O'Sullivan, for Elaine Nile, has submitted that there are two issues that should be resolved in the public interest. These issues relate to the eligibility of Irina Dunn to be nominated as a candidate and whether the Nuclear Disarmament Party is a political party within the meaning of that expression in the Electoral Act. Neither of these matters falls within the terms of reference by the Senate to this Court and accordingly they are not issues which I can pursue.

Having read the affidavit of Mr. Nugent, sworn on 18 July 1988, I am satisfied that it is appropriate that the Court should now make an order in terms of the order numbered 5 sought in the notice of motion dated 19 May 1988.

Accordingly I order that Irina Dunn be declared duly elected as a senator for the State of New South Wales for the place for which Senator Wood was returned. As the Full Court in its determination specifically ordered that there should be no order for costs, I do not propose to make any order respecting the costs of the parties in the ancillary proceedings that have taken place before me in consequence of the orders made by the Full Court on its determination of the matter.