Sue v Hill

Sue v Hill - [1999] HCA 30 - HCA 1999 case summary — Zoe

[36]

There shall be a Court of Disputed Returns which shall be constituted by a Justice of the High Court of Australia, or a Judge of the Supreme Court of any State. [20] Speaking of the matters which would be entertained by the courts referred to in cl 190, Senator O'Connor observed [21] : It is quite true that generally speaking they will be very simple matters to determine, but very frequently and at any time the courts may be called upon to interpret the Electoral Act, or the Constitution, to administer the laws by which the Commonwealth is guided. Surely the interpretation of those laws ought to be left in the hands of the Commonwealth's court? When the Bill reached the House, the Minister having its carriage, Sir William Lyne, the Minister for Home Affairs, described as follows the intent of what became Pt XVI of the 1902 Act [22] : It is proposed to remove the dealing with election petitions from the control of Committees of Elections and Qualifications, to which such matters are now referred, and have them tried by the Full High Court, but until the establishment of the High Court the Supreme Court of each State will be the court of disputed returns. The High Court is to have jurisdiction either to try the petition, or refer it for trial to the Supreme Court of the State for which the election was held or the return made, and the powers conferred by the clause - 198 - may be exercised by a single Justice or Judge. 1. Australia, Senate, Parliamentary Debates (Hansard), 31 January 1902, p 9529. Senator O'Connor was the third of the first appointments made to this Court on 5 October 1903. 2. Sub-sections (1) and (2) of s 193 stated: "(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Supreme Court of the State in which the election was held or return made. (2) When a petition has been so referred for trial to the Supreme Court of a State, that Court shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns." 3. Australia, Senate, Parliamentary Debates (Hansard), 13 March 1902, p 10950. 4. Australia, Senate, Parliamentary Debates (Hansard), 14 March 1902, p 10953. 5. Australia, House of Representatives, Parliamentary Debates (Hansard), 5 June 1902, pp 13359-13360.

[148]

In England the prerogative powers of the Crown were at one time personal powers of the Sovereign; and it was only by slow degrees that they were converted to the use of the real executive body, and so brought under control of Parliament. In Australia, however, these powers were never personal powers of the King; they were even imported at a time when they had already to a great extent passed out of the hands of the King; and yet they loom here larger than in the country of their origin. The explanation would seem to be that, in the scheme of colonial government, the powers of the Crown and the Prerogative really represent, - not any personal powers on the part of the Sovereign, - but those paramount powers which would naturally belong to a parent State in relation to the government of its dependencies; although owing to the failure of the common law to recognise the personality of the British "State" these powers had to be asserted in the name and through the medium of the Crown. This, too, may serve to explain the distinction, subsequently referred to, between the "general" prerogative of the Crown, which is still wielded by Ministers who represent the British State, and who are responsible to the British Parliament, - and what we may call the "colonial" prerogative of the Crown, which, although consisting originally of powers reserved to the parent State, has with the evolution of responsible government, been gradually converted to the use of the local executive, and so brought under the control of the local Legislature, except on some few points where the Governor [109] is still required to act not as a local constitutional Sovereign but as an imperial officer and subject to an immediate responsibility to his imperial masters [110] . 1. "The Crown as Representing the State", Commonwealth Law Review, vol 1 (1904) 145, at pp 146-147. 2. Who, legally [represented] the King, but really [represented] the British "State". 3. As with regard to the reservation of Bills and the exercise of the power of pardon in matters affecting imperial interests.

[197]

See Rogers on Elections, 16th ed (1892), vol 2, p 223; Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), p 496; May, The Law, Privileges, Proceedings and Usage of Parliament (May's Parliamentary Practice), 22nd ed (1997), p 35; Schoff, "The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-judicial Power and Incompatible Function?", Federal Law Review, vol 25 (1997) 317, at p 324; Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?", University of New South Wales Law Journal, vol 20 (1997) 257, at p 263. 2. 31 & 32 Vict c 125. 3. Section 11(1). Section 11(2) required a rota to be formed from judges of "each of the Courts of Queen's Bench, Common Pleas and Exchequer in England and Ireland " for the purpose of hearing election petition cases. 4. See, eg, County of Tipperary (1875) 3 O'M & H 19 (disqualification on the grounds of status as an alien and conviction for treason-felony); Borough of Cheltenham (1880) 3 O'M & H 86 (disqualification on the ground of status as an alien); Western Division of the Borough of Belfast (1886) 4 O'M & H 105 (disqualification on the ground that candidate had already been elected and returned as member for another constituency). 5. See, eg, s 2 of the Crown Pensioners Disqualification Act 1715 (1 Geo I c 56) (persons disqualified for receiving Crown pensions); s 2 of the House of Commons Disqualification Act 1742 (15 Geo II c 22) (persons disqualified for holding a particular office, including the office of lord high treasurer, the commissioners of the exchequer, etc); s 9 of the House of Commons (Disqualification) Act 1782 (22 Geo III c 45) (persons disqualified for having any direct or indirect pecuniary interest in any contract or agreement with the Crown); s 2 of House of Commons (Clergy Disqualification) Act 1801 (41 Geo III c 63) (persons disqualified for being a member of the clergy); s 2 of the House of Commons Disqualifications Act 1821 (1 & 2 Geo IV c 44) (persons disqualified for holding certain judicial offices in Ireland); s 33(5) of the Corrupt and Illegal Practices Prevention Act 1883 (46 & 47 Vict c 51) (persons disqualified for failing to submit certain required declarations and returns in respect of their election expenses).

[235]

See, eg, R v Davison (1954) 90 CLR 353 at 366, per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394, per Windeyer J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497, per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532, per Mason CJ; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188 Leeth v The Commonwealth (1992) 174 CLR 455 at 501, per Gaudron J; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257, per Mason CJ, Brennan and Toohey JJ; at 267, per Deane, Dawson, Gaudron and McHugh JJ; Nicholas v The Queen (1998) 193 CLR 173 at 207, per Gaudron J; at 273, per Hayne J; Gould v Brown (1998) 193 CLR 346 at 403, per Gaudron J. 2. Nicholas v The Queen (1998) 193 CLR 173 at 207, per Gaudron J. See also Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357, per Griffith CJ; Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463, per Isaacs and Rich JJ; R v Davison (1954) 90 CLR 353 at 369, per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, per Kitto J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666 Harris v Caladine (1991) 172 CLR 84 at 147, per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497, per Gaudron J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188 Gould v Brown (1998) 193 CLR 346 at 404, per Gaudron J. 3. See Nicholas v The Queen (1998) 193 CLR 173 at 207, per Gaudron J. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, per Kitto J; Harris v Caladine (1991) 172 CLR 84 at 150, per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496, per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704, per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 502, per Gaudron J.

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