Re Australian Electoral Commission; Ex parte Kelly [2003] HCA 37

HIGH COURT OF AUSTRALIA

GUMMOW J

RE AUSTRALIAN ELECTORAL

COMMISSION & ORS RESPONDENTS

EX PARTE NED KELLY APPLICANT/PROSECUTOR

Re Australian Electoral Commission; Ex parte Kelly

[2003] HCA 37

25 June 2003

S403/2002

ORDER

1. Leave granted for the applicant to present further written submissions dated 11 June 2003.

2. Application dismissed with costs.

Representation:

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.

CATCHWORDS

Re Australian Electoral Commission; Ex parte Kelly

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.

1. GUMMOW J. This application for an order nisi should be dismissed with costs. The issues involved arise in the following way. 2. On 10 November 2001, elections were held for the Parliament of the Commonwealth, including an election of six Senators for the State of New South Wales. On 5 December 2001, the Australian Electoral Officer for New South Wales ("the State Electoral Officer") declared as elected to serve as such Senators those persons comprising the fourth to ninth respondents to the present application. On 6 December 2001, the Governor of New South Wales (the third respondent) certified that the writ had been returned in accordance with s 283(1)(b) of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). 3. The writ in question had been signed by the Governor on 8 October 2001 and followed the form indicated in s 152(1) of the Act. For the purposes of that statute, a writ shall be deemed to have been issued at the hour of 6 o'clock in the afternoon of the day on which the writ was issued (s 152(2)). The writ had been addressed to the State Electoral Officer, as required by s 153(1). 4. Section 152(1) of the Act required the writ to "fix the date for" the close of the electoral rolls, the nomination, the polling, and the return of the writ. Section 156(1), subject to a qualification not presently material, required that the date fixed for the nomination of the candidates "not be less than 10 days nor more than 27 days after the date of the writ". Section 170 detailed the requisites for nomination. In particular, if a nomination was for a Senate election it would not be valid unless the nomination paper or a facsimile of it was "received by the Australian Electoral Officer after the issue of the writ and before the hour of nomination" (s 170(2)(a)(i)). Requirements also were imposed by that section upon the provision of the necessary deposit. The expression "hour of nomination" was specified by s 175 as "12 o'clock noon on the day of nomination". 5. The writ signed by the Governor on 8 October specified that she appointed "the eighteenth day of October 2001, at twelve o'clock noon to be the day and time before which nominations of Senators at and for the said election are to be made". The specification of 18 October was a day not less than 10 days "after the date of the writ" in accordance with the terms of s 156(1). The date of the writ was 8 October, one day thereafter was 9 October and 18 October was the tenth day with counting beginning on 9 October. Thus, the writ complied with s 156(1). 6. Section 36(1) of the Acts Interpretation Act 1901 (Cth) ("the Commonwealth Interpretation Act"), if it applied to s 156(1), would produce no different result. The sub‑section states: