The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function?
| Date | 01 June 1997 |
| DOI | 10.22145/flr.25.2.6 |
| Published date | 01 June 1997 |
| Subject Matter | Article |
THE ELECTORAL JURISDICTION OF THE
HIGH
COURT
AS THE COURT OF DISPUTED RETURNS: NON-JUDICIAL
POWER
AND
INCOMPATIBLE FUNCTION?
Paul
Schoff
*
INTRODUCTION
It is obvious,
that
a
power
must
be lodged somewhere to judge of the elections, returns
and
qualifications
of
the members ofeach house composing the legislature; for otherwise
there could
be
no
certainty, as to
who
were
legitimately chosen members
...
The only
possible question
on
such asubject is, as to the body,
in
which such
power
shall be
lodged. If lodged
in
any other,
than
the legislative bod:r itself, its independence, its
purity,
and
even its existence
and
action
may
be destroyed.
Story
was
there commenting
on
Art
1 § 5
Cl1
of the United States Constitution which
provides
that
"Each House shall
be
the Judge of the Elections, Returns,
and
Qualifications of its
own
Members". In the United States, the Supreme
Court
has
held
that
in
exercising the
power
to judge elections, returns
and
qualifications of its
members, the Senate acts as ajudicial tribuna1.2In Buckley v
Valeo,3
it
was
noted
that
Art
I § 5
CII
conferred
power
judicial
in
character, rather
than
legislative.
In
contrast, s47 of the Commonwealth Constitution provides for qualifications,
vacancies
and
disputed
elections to
be
determined
by
the House
in
which the question
arises only "[u]ntil the Parliament otherwise provides". The Parliament has so
provided
by
Part
XXII
of the Commonwealth Electoral Act 1918 (Cth) (the 1918 Act). Jurisdiction
as to elections, qualifications
and
vacancies has
been
reposed
in
the High
Court
as a
Court
of Disputed Returns. That
Court
has
jurisdiction of
two
types. First, it is given
jurisdiction to determine petitions disputing elections for the Commonwealth
Parliament. Second, there is jurisdiction to determine any question referred
by
the
Parliament respecting the qualifications of aSenator or Member of the House of
Representatives
or
respecting avacancy
in
either House of the Parliament. The
Commonwealth Parliament is
not
alone
in
the common law world
in
its delegation of
jurisdiction over these questions to the courts,
in
the States of Australia,4
in
the United
,.
1
2
3
4
BA
Guris)
LLB
(Hons) (Adel). Solicitor, Minter Ellison, Sydney.
JStory,
Commentaries
on
the
Constitution of
the
United
States
(1833)
Vol
II
at
294-295.
See
Barry
v
United
States;
Ex
reI
Cunningham
279
US 597
at
613
(1929).
424 US 1
at
133 (1976) .
See Parliamentary Electorates
and
Elections Act 1912 (NSW), Pt
6;
Electoral Act 1992 (Qld),
Pt
8;
Electoral Act 1985 (SA), Pt
XII,
Div
II;
Constitution Act
Amendment
Act 1958 (Vic),
Div
22;
Electoral Act 1907 (WA),
Pt
V;
Electoral Act 1985 (Tas), ss 213-230.
318
Federal
Law
Review
Volume
25
Kingdom,S
in
Canada,6
and
in
New
Zealand,7 similar jurisdiction
has
been
conferred
on
courts.
The
doctrine of
separation
of
powers
raises the concept of "the judicial
power
of
the
Commonwealth"
to
the
status of atouchstone of validity.
From
it
is
derived
the
principle
that
power
that
is
not
part
of
the
judicial
power
of the
Commonwealth,
or
which
is
not
ancillary
or
incidental thereto,
cannot
be
conferred
on
a
Ch
III
court
or
on
aState
court
exercising federal jurisdiction. The
High
Court
cannot
be
arepository of
powers
which
are
neither
part
of the judicial
power
of the
Commonwealth
nor
ancillary
or
incidental to the exercise of judicial power.8
In
Huddart,
Parker
&
Co
Pty Ltd
v
Moorehead,
Griffith
CJ
defined judicial
power
in
its constitutional aspect as "the
power
which
every
sovereign
authority
must
of necessity
have
to decide controversies
between
its subjects,
or
between
itself
and
its subjects,
whether
rights relate to life,
liberty
or
property".9 The
modem
view
acknowledges
the
indeterminacy of
the
concept
of judicial
power.
In
Rv
Davison,
Dixon
CJ
and
McTiernan J
said
that:
Many
attempts
have
been
made
to define judicial
power,
but
it
has
never
been
found
possible
to
frame adefinition
that
is
at
once exclusive
and
exhaustive.10
Those
words
reverberate
through
subsequent
occasions
on
which
the
High
Court
has
considered
the
"elusive"
11
delimitation of judicial power. Like all useful principles
the
separation
of
powers
principle
depends
for its operation
upon
aconcept
which
is as
imprecise as it is malleable.
In
Re
Brennan;
ex
parte
Muldowney,12
Mason
CJ
dismissed
an
application
by
a
petitioner (as prosecutor) to
the
High
Court
for
an
order
nisi for
mandamus
and
certiorari against Brennan ACJ.
13
The prosecutor raised aconstitutional
argument
that
the
vesting
in
the
High
Court
of the
power
to determine
disputed
returns
under
the
I
Commonwealth
Electoral Act 1918 (Cth) is contrary to the doctrine of
the
separation
of
powers.
Chief Justice
Mason
found
it unnecessary to decide the issue for reasons ;
related
to
the
merits of the application for the
order
nisi.
However,
he
did
comme11t
that
the
question
raised
was
"interesting
and
important".14
This article
attempts
to
answer
the question identified
by
Sir
Anthony
Mason. Tlle I
first
Part
outlines
the
main
contours
and
constitutional anchoring of the jurisdiction
conferred
by
the 1918 Act. The second
Part
considers
the
history of the jurisdiction.
That
history
is
useful
both
for the historical
approach
to characterisation of judicial
power
and
for the context it
provides
to the
High
Court's early
approach
to electoral,
jurisdiction. The
third
Part
considers some characteristics of electoral jurisdiction
which
I
suggest
that
its exercise
may
not
be
an
exercise of judicial
power,
the
nature
of
the
I
criteria
by
which
the
court
is
guided,
the conclusive effect of decisions,
and
the
nature
I
5
6
7
8
9
10
11
12
13
14
Representation
of
the
People Act 1983 (UK).
Dominion
Controverted
Elections Act
RS
1970 c87.
Electoral Act 1956 (NZ)
Mellifont vAttorney-General
(Qld)
(1991) 173 CLR 289
at
311-312.
(1909) 8CLR 330
at
357.
(1954) 90 CLR 353
at
366.
Polyukhovich v
The
Commonwealth (1991) 172 CLR
501
at
532.
(1993) 116 ALR 619.
In
Muldowney vAustralian
Electoral
Commission
(1993) 114 ALR 513,
Brennan
ACJ had',
dismissed
two
petitions
to
the
Court
of
Disputed
Returns.
(1993) 116 ALR 619
at
622.
1997
The
Electoral
Jurisdiction
of
the
High
Court
as
the
Court
ofDisputed Returns 319
as "matters" of questions referred
by
the Parliament.
On
to this traditional analysis
may
be
grafted
an
approach
indicated
by
atrilogy of recent cases,
Crolla,1s
Wilson,16
and
Kable.
17 These cases establish
what
has
been
termed
the "incompatibility condition".
Incompatibility reasoning is applied
in
the final
Part
to examine the
propriety
of
exercise of the electoral jurisdiction
by
the
High
Court.
PART
1 - OUTLINE
AND
CONSTITUTIONAL
BASIS
OF
THE
JURISDICTION
CONFERRED
BY
THE
1918
ACT
Outline
of
the
1918 Act
As
Story indicated, there
must
be
some authority to check
both
the
personal
and
democratic credentials of those claiming aseat
in
arepresentative
chamber
of
Parliament. Personal credentials involve qualifications as to age, status
and
gender
which
have
existed from time to time. Democratic credentials relate to the integrity
and
propriety
of the election. Those two aspects are reflected
in
s47 of the Constitution
which
is as follows:
Until the Parliament otherwise provides,
any
question respecting the qualification
of
a
senator
or
of
a
member
of the
House
of Representatives,
or
respecting avacancy
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.
From
s47
may
be
extracted aclassification of "questions" for the answering of
which
the Constitution provides until the Parliament otherwise provides. These are of
two
types. First, there are questions respecting the qualification of aSenator
or
Member
and
questions respecting avacancy
in
either
House
(personal credentials). Second, there is
any
question relating to a
disputed
election
(democra~ic
credentials). The second type
of question is dealt
with
in
Division 1of
Part
XXII
of the 1918 Act. The first
type
of
question is dealt
with
in
Division
2.
Division 1provides the
method
for the resolution of questions concerning
disputed
elections. Section 353(1) reads, "[t]he validity of
any
election
or
return
may
be
disputed
by
petition
addressed
to the
Court
of
Disputed
Returns
and
not
otherwise". The
method
of challenging elections laid
down
in
the 1918 Act is exhaustive. This
means
that
the jurisdiction of the
Court
of Disputed Returns
in
respect of election petitions is
exclusive of
any
other court
or
the Parliament. Jurisdiction is vested
by
s354(1)
which
provides
that
the
Court
of Disputed Returns "shall
have
jurisdiction either to
try
the
petition
or
to refer it for trial to the Supreme
Court
of the State
or
Territory
in
which
the
election
was
held
or
return
made". Section 354(2) provides for the jurisdiction of the
relevant
Supreme
Court
upon
referral of apetition
under
sub-section (1). Finally,
s354(3)
provides
that
the jurisdiction
and
powers
of the
High
Court
or
a
Supreme
Court
sitting as the
Court
of Disputed Returns,
may
be
exercised
by
asingle Justice or
Judge.
In contrast to the exclusive jurisdiction
provided
in
relation to democratic
credentials
by
Division 1, Division 2provides for ajurisdiction of the
Court
concurrent
with
that
of Parliament
in
relation to the other types of question
within
the terms of
15
16
17
Grollo
v
Palmer
(1995) 184
CLR
348.
Wilson vMinister
for
Aboriginal
and
Torres
Strait
Islander
Affairs (1996) 138
ALR
220.
Kable
v
DPP
(1996) 138
ALR
577.
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