R v Governor of South Australia [1907] HCA 31

{HIGH COURT OF AUSTRALIA.)

KING y. THE GOVERNOR OF THE STATE OF SOUTH AUSTRALIA.

H.C. or A. 1907. ~

matitution (63 & 64 Vict. c, 12), secs. 13, 15, 47—Judiciary Act 1903 (No.6 SypNev,

of 1903), sec. 33. Aug, 2.5, 6,

'The Governor of a State in issuing a writ for the election of senators under —

'sec, 12 of the Constitution is acting in the capacity of the constitutional head ith C4. the State, and not as an officer of the Commonwealth within the meaning — ?}Connen,

sec, 75, sub-sec, v. of the Constitution. Higgins JJ.

p election—Mandamus—Question for determination by Parliament—The

ions of the Commonwealth Hlectoral Act 1902 it was declared that the on of one of the three senators returned as duly elected for South Aus- in place of those whose places had become vacant by effluxion of time, us void. The Parliament of South Australia, assuming to act under sec. 15 of the Constitution, chose a person as senator to fill the vacancy, that was duly certified, and the person chosen sat and voted as a senator. 1e candidate whose election had been declared void applied to the High for a writ of mandamus to compel the Governor to issue a writ for a

)) Held, that » mandamus will not lie to the Governor of a State to compel _him to do an act in his capacity of Governor.

The jurisdiction in respect of mandamus conferred upon the High Court by he Constitution, sec. 75, sub-sec. v., has not been enlarged by sec. 33 of the ary Act 1903,

Held, also, that the question whether, under the circumstances, there was Was not a vacancy in the representation of South Australia in the Senate '4 question to be decided by the Senate under sec. 47 of the Constitution.

'nisi for a writ of mandamus di:

1498 HIGH COURT

- MANDAMUS. This was an application by Mr. Joseph Vardon for a writ mandamus directed to the Governor of South Australia eo manding him to cause a writ to be issued for the election senator for the State of South Australia to complete the ep orSovnt sentation of that State in the Senate of the Commonwealth, ( ATSTRATIA. 8th November 1906 the Governor of South Australia, Sir Geor R. Le Hunte, K.C.M.G., caused a writ to be issued for the ele of three senators in place of Sir Josiah Symon, Sir Richard and The Hon. Thomas Playford whose term of service wou! expire on 31st December of that year, and appointed the d for nomination, taking the poll, and return of the writ to be 1! November 1906, 12th December 1906, and 7th January 19 respectively. Seven gentlemen, including Sir Josiah Symo Mr. William Russell and Mr. Joseph Vardon were duly nominaté and the polling resulted in those three gentlemen being de elected in that order, and the writ was returned endorsed certificate to that effect by the Commonwealth Electoral Office On 15th February 1907 one of the defeated candidates, Mr. Blundell, filed a petition in the High Court as the Court « Disputed Returns praying for a recount of the ballot-pap declaration that Mr. Vardon was not duly elected, and a declan tion that Mr. Crosby, another candidate, or the petitioner was elected, or in the alternative a declaration that the election w absolutely void.