Sue v Hill [1999] HCA 30

High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Sue v Hill (S179/1998) [1999] HCA 30

ORDER

1. Answer the questions reserved in each stated case as follows:

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the Petition?

Answer: Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution?

Answer: Yes

(c) Was the first respondent duly elected at the Election?

Answer: No

(d) If no to (c), was the Election void absolutely?

Answer: No

(e) If no to (d), should the second respondent conduct a recount of the ballot papers cast for the Election for the purpose of determining the candidate entitled to be declared elected to the place for which the first respondent was returned?

Answer: Inappropriate to answer.

(f) Save for those otherwise dealt with by order, who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court?

Answer: The Commonwealth should pay the costs of the petitioner and the first respondent. The second respondent should bear its own costs.

Cur adv vult

The following written judgments were delivered: —

23 June 1999 Gleeson CJ, Gummow and Hayne JJ.

1. In each of the cases stated, we agree that the relief should be formulated and answers given in the terms proposed by Gaudron J.

2. The questions anterior to the determination of the relief are threefold. It is submitted for Mrs Hill that there has been no legislative conferral of jurisdiction on this Court, that, if the legislation has attempted such conferral, this would not involve the exercise of the judicial power of the Commonwealth and so would be ineffective, and that, within the meaning of s 44(i) of the Constitution, the United Kingdom is not a "foreign power". We will deal with the issues raised by these submissions in that order. The text of a number of the constitutional and statutory provisions which fall for consideration is set out in the reasons of Gaudron J. However, for ease of comprehension, some of these are repeated in what follows. In addition to the Commonwealth Electoral Act 1918 Cth (the Act) as it now stands, it will be necessary to refer to provisions of earlier legislation repealed by s 3 of the Act, in particular the Commonwealth Electoral Act 1902 Cth (the 1902 Act) and the Disputed Elections and Qualifications Act 1907 Cth (the 1907 Act).