BlackshieldBY TONY BLACKSHIELD

In the wake of the recent federal election, the final date for return of the writs was Monday 8 August; and despite the absence of the Governor-General (at the Olympic Games), that deadline was met. (In his absence, the writs for the House of Representatives were returned to the Governor of Queensland.)

According to s 5 of the Constitution, the Parliament must sit within 30 days of the return. It will do so on 30 August. According to s 355 of the Commonwealth Electoral Act 1918 (Cth), any petition seeking to challenge a result in the Court of Disputed Returns must be filed in the High Court Registry within 40 days of the return, which effectively means by Friday 16 September. (Significantly, s 355(e)(iii) sets a different timetable for challenges to the filling of a casual vacancy under s 15 of the Constitution.)

The deadline of 16 September may be important because, in Western Australia, one of the last two Senators to be elected was Rodney Culleton, a candidate for Pauline Hanson’s One Nation, and the question whether his election was valid has not yet been resolved.

In 2014, as a result of a dispute with a tow truck driver in Guyra, NSW, Culleton was charged with larceny. In the Armidale Local Court on 2 March this year, he was convicted in his absence. The conviction was annulled on 8 August, to clear the decks so that the original charge can finally proceed to trial; the matter is currently listed for 12 September.

If, after Culleton takes his seat in the Senate, he is finally convicted of the Guyra larceny charge (or of another charge currently pending in Western Australia), the result will be a casual vacancy.  If the vacancy is only temporary (since once he was sentenced he would be disqualified only for the duration of the sentence), he might perhaps simply refrain from sitting until the sentence was over.  But a vacancy of longer duration would need to be filled in the manner prescribed by s 15 of the Constitution: the Western Australian Parliament would be called on to name a replacement, who would have to be another representative of Pauline Hanson’s One Nation.

On the other hand, if at the time of the election he was “incapable of being chosen”, his disqualification will be incurable.  The result will be a recount, and if that fails a fresh election.

As a matter of historical fact, it is true that at the election on 2 July (and indeed throughout the entire election period, from the nominations to the return of the writs), Culleton was “convicted and … subject to be sentenced” for an offence potentially open to punishment “by imprisonment for one year or longer”, and was therefore “incapable of being chosen” under s 44(ii) of the Constitution. If the effect of the annulment on 8 August was retrospectively to erase the conviction and all its legal consequences as if they had never been, then what remains true as a matter of fact is no longer true as a matter of law: he is free to take his seat. But whether the annulment does have that effect is a matter of interpretation. The conviction was annulled under the Crimes (Appeal and Review) Act 2011 (NSW), and according to s 10 of that Act: “On being annulled, a conviction or sentence ceases to have effect”. In ordinary usage, as I have pointed out elsewhere, to say that something “ceases to have effect on Monday” means that it did have effect before Monday.

Whatever the outcome, the case has served to highlight the difference between the situation where a Senator who has validly taken his seat is subsequently rendered “incapable of being chosen”, and the situation where the candidate initially elected is “incapable of being chosen” at that very time. In the former case the result is a casual vacancy, to be filled in the manner prescribed by s 15 of the Constitution. In the latter case the seat remains unfilled, and must be filled by a recount (or if that fails by a fresh election).

Ironically, the last time such a problem arose, it too involved a One Nation candidate: Heather Hill, elected as a Senator for Queensland in 1998, was found to be “incapable of being chosen”, and the problem was solved by a recount. Previously there had been a similar recount in the case of Robert Wood, elected as a Senator for New South Wales in 1987. And earlier still, the basic difference between a “casual vacancy”, and a seat that has never been filled in the first place, was painfully worked out over fifteen long months in the case of Joseph Vardon, initially elected as a Senator for South Australia in 1906.

To appreciate clearly what is involved, it is helpful to review all three cases.

Joseph Vardon

At the federal election of 12 December 1906, Joseph Vardon was elected to the Senate. He was third on the Liberal (or “Anti-Socialist”) ticket, behind David Charleston and Josiah Symon. Symon proved the most popular of the three; he was the first to obtain a quota, and William Russell (Labor) was second. The third position was closely fought out between Vardon and Dugald Crosby (Labor); but in the end Crosby was ahead of Vardon by 14 votes. Vardon asked for a recount, and this time he was ahead of Crosby by 34 votes. Vardon was declared elected – but by this time Crosby had died.

The next candidate in line was Reginald Blundell (Labor), who now applied for a further recount, or alternatively for a declaration that the election was void. The case was heard by Justice Barton, sitting in the High Court as the Court of Disputed Returns: Blundell v Vardon (1907) 4 CLR 1463. Initially there was a second recount under the Court’s supervision, but this turned out to involve a prolonged series of disputes over the validity of particular ballot papers – extending over six days in May, with a final session on the first day of June.

At the end of the Court-supervised recount, Vardon was ahead of Blundell by 2 votes. If a bundle of 21 disputed votes were taken into account, Vardon’s majority would be increased to 4 votes; but if a further bundle of 185 absentee and postal votes were taken into account, the difference would be converted into 4 votes in Blundell’s favour.

The trouble with these votes was that they had never been initialled by an electoral officer. It followed that they could not be counted; yet they would have affected the result. In these circumstances, Justice Barton thought he had no option but to declare the election of Vardon absolutely void. “It is deplorable”, he said (at 1480) “that all this litigation and expense should have been caused to perfectly innocent parties by the failure of officials to attend to duties clearly laid down in Statutes, Regulations, and printed instructions.” (He also made it clear, at 1481, “that the inquiry has shown that the seats of Senator Sir Josiah Symon and Senator Russell could not in any circumstances have been successfully challenged”.)

On 8 June 1907 the Attorney-General, Littleton Groom, gave a written opinion that, since Vardon had actually taken his seat in the Senate before his election was declared to be void, the result was a “casual vacancy” within the meaning of s 15 of the Constitution; and accordingly, on 2 July 1907, the Governor of South Australia, Sir George Le Hunte, sent a message to the South Australian Parliament advising that a joint sitting should be convened to fill what the Governor’s message described as a casual vacancy. The Legislative Council disputed the Governor’s message, as did Vardon himself, who insisted that what the Governor should do was to issue a writ for a fresh election. But the Governor replied that, until otherwise advised, he must decline to do so; and on 11 July the joint sitting was convened.

The former Premier V.L. Solomon moved that there should be no further action until the High Court had ruled on whether the Attorney-General’s opinion was correct; but that motion was defeated and nominations were called for. Another former Premier, Richard Butler (now Leader of the Opposition) nominated Vardon, and the current Premier, Thomas Price, nominated James O’Loghlin.

Perhaps there was as yet no convention that the nominee should be of the same political party as the Senator whose seat was to be filled, or perhaps the Premier chose to give that convention his own interpretation. He insisted that the original election result, with Crosby defeating Vardon by 14 votes, had been the true one, and that therefore he was pleased to “embrace the opportunity of nominating a man of the same political views as Mr Crosby”, describing the latter as the man “that the people of the State returned” – “a man now deceased, and whose death we lament”.

On the same day as the South Australian joint sitting (11 July 1907), Littleton Groom gave a further opinion. Vardon had asked that a fresh election be held on the basis of the original writ, but Littleton Groom ruled that this was impossible: the original writ was exhausted.

On 17 July 1907, O’Loghlin took his seat in the Senate. But in the first week of August Vardon returned to the High Court, where his counsel (Sir John Downer, another former Premier) formally applied for a writ of mandamus compelling the Governor to issue the writ for a fresh election (R v The Governor of the State of South Australia (1907) 4 CLR 1497). Justice Barton held on various grounds that no writ of mandamus should issue – primarily because (at 1511) “the Commonwealth Judiciary cannot command the Constitutional Head of a State to do in that capacity an act which is primarily a State function”. But he ended his judgment (at 1513) with a significant non liquet:

We refrain from expressing any opinion upon the other important and difficult question which the applicant desires to have decided. It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia in the Senate is one of the questions to be decided by the Senate under sec 47 “unless the Parliament otherwise provides”. Parliament can, no doubt, confer authority to decide such a question upon this Court, whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve our opinion upon it.

On 23 August Vardon responded to this paragraph by presenting the Senate with a petition, which was immediately referred to the Committee of Disputed Returns and Qualifications. The Committee (now chaired by Vardon’s former running mate Josiah Symon) presented its report on 7 October. It found that there was “not a vacancy within the meaning of section 15”, and accordingly that O’Loghlin was not duly chosen or elected as a Senator. The response to Barton’s hint that the Parliament might need to “confer authority to decide such a question upon this Court” was the Disputed Elections and Qualifications Act 1907, introduced on 30 October and assented to on 22 November, which added to the existing provision for petitions to the Court of Disputed Returns (in what are now ss 353358 of the Commonwealth Electoral Act 1918 (Cth), by providing for referrals to that Court by the relevant House of the Federal Parliament (in what are now ss 376381 of the Act). The question whether these two sources of jurisdiction were mutually compatible or mutually exclusive was to prove an additional complication when the Court came to deal with Robert Wood, and again with Heather Hill.

But the 1907 Act also provided an immediate fast track for Vardon’s petition to the Senate through s 2(1), which provided:

Any petition disputing the validity of any choice by the Houses of Parliament of a State of a person to hold the place of a Senator under section fifteen of the Constitution or involving any question respecting the qualification of a Senator or respecting a vacancy in the Senate, which is now in or pending before the Senate, or in respect of which the Senate has resolved that the question involved is proper to be referred to the High Court, is by virtue of this Act and without any order of the Court of Disputed Returns removed into the Court of Disputed Returns.

And by sub-section (2) any such pending petition was immediately transmitted to the Court, which “shall have jurisdiction and shall proceed to hear and determine the petition and the questions raised thereby”.

Accordingly, on 17 December, the hearing of Vardon’s petition began before a bench of four judges sitting as the Court of Disputed Returns: Vardon v O’Loghlin (1907) 5 CLR 201. The Senate Committee had already ruled that the vacancy arising from Blundell v Vardon was “not a vacancy within the meaning of section 15”; now the Court confirmed that ruling. For Chief Justice Griffith (at 206), the procedure for filling a casual vacancy was merely “ancillary” to “the dominant provision”, in s 7 of the Constitution, that Senators must be “directly chosen by the people of the State”. For Justice Isaacs (at 216):

[T]he truth is that sec. 15 of the Constitution was not framed with the object of meeting numerous instances of irregular Senate elections, but of providing for possible but rare contingencies of the abnormal termination of the service of senators; so rare that departures from the fundamental principle of representation through popular election would be really inappreciable …

And he added that the contrary view would lead to “a serious inroad upon the most vital of all the principles upon which the Federal system of Parliamentary representation rests”.

The Court therefore held that the remedy lay in s 108 of the Commonwealth Electoral Act 1902, now s 181(1) of the present Act: “Whenever an election wholly or partially fails a new writ shall forthwith be issued for a supplementary election.”

Accordingly, South Australia held a fresh election for only one senator. On 2 January 1908 Sir George Le Hunte issued a proclamation fixing the dates of 13 January for the issue of the writ, and 15 February for the election. As Commonwealth Crown Solicitor, Gordon Castles confirmed in an opinion given on 8 January that the issue and form of the writ were entirely a matter for the State Governor, on the advice of his responsible State ministers.

Two days earlier, Castles had been required to give another opinion. It was necessary to modify the instructions on the ballot paper in a manner appropriate to only one vacancy, and the Chief Electoral Officer was worried that such a change might need to be authorised by amending the regulations. But in his opinion on 6 January 1908, Gordon Castles approved the proposed alteration and advised that it could be made under the existing regulations, relying on the statutory rule-of-thumb that words importing the plural number include the singular number.

Both Castles and Littleton Groom had earlier been called on to deal with another issue. One of the many problems arising in the course of the court-supervised recount reported in Blundell v Vardon was that the ballot papers for the Division of Angas were reported to have been lost; Justice Barton ruled that the recount could go ahead without them, using the Angas figures from the previous recount. Later it turned out that the Angas papers had not been lost after all; but on 18 September 1907 Littleton Groom gave a written opinion that their rediscovery did not affect the validity of what the Court of Disputed Returns had done, since the Court’s decision was “absolutely final”. For his part Castles reaffirmed that conclusion, in response to yet another attempt to reopen the earlier proceedings, in an opinion delivered on 30 October – the very day when the Bill was introduced to confer additional jurisdiction on the Court of Disputed Returns. The conjunction of dates is especially puzzling because Castles’ assertion that the chapter was closed relied in part on his reaffirming that O’Loghlin had been validly elected to fill a casual vacancy.

At the election on 15 February, Vardon and O’Loghlin were the only candidates. On the day of the election the Adelaide Register portrayed it as “a straight out issue between socialism and anti-socialism”: a victory for Vardon would mean “the preservation of States’ rights and opposition to domination by Socialist interests”. The turnout was far greater than it had been at the original election in December 1906, and the result was a massive victory for Vardon: already on election night, even before the final votes were counted, Vardon was ahead by well over 5000 votes. On 18 February the Register hailed the result as the end of a “long-drawn-out constitutional comedy”.

On 17 March 1908, Vardon finally took his seat in the Senate, where he remained for a six-year term. He was defeated at the 1913 election, and died two months later.

Robert Wood

Because the federal election on 11 July 1987 followed a double dissolution, each State was to choose twelve Senators. In New South Wales the two major parties won five Senate seats each and the Australian Democrats one. The remaining seat went to Robert Wood of the Nuclear Disarmament Party. His election was challenged by Elaine Nile, who had stood as an unsuccessful candidate for what was then called “Call to Australia” (later the Christian Democratic Party). The grounds on which she based her challenge were presumably intended to invoke a number of those set out in s 44 of the Constitution, but they did so in such a vague and inartistic manner that all of them (including an attempt to invoke the language of s 44(i)) were unsuccessful: Nile v Wood (1988) 167 CLR 133.

It would seem, however, that the clumsy attempt at a challenge based on s 44(i) had alerted Wood to the fact that he had a problem under that provision. The High Court judgment in his favour was delivered on 16 December 1987; and on 22 January 1988 he applied for an Australian passport. But this only drew attention to the fact that he was still a British citizen. The Immigration Department notified the President of the Senate, and on 16 February the Senate referred certain questions to the High Court sitting as the Court of Disputed Returns. The questions asked not only whether a vacancy had arisen, but if so whether the vacancy called for a recount, or was simply a “casual vacancy” attracting s 15 of the Constitution. The result was the decision in Re Wood (1988) 167 CLR 145.

In declaring that a vacancy existed, the Court did not rely on s 44(i) of the Constitution (“allegiance, obedience, or adherence to a foreign power”), apparently in part because of the requirement that any petition “disputing an election” must be filed within 40 days after the final return of the writs. Yet the Court explicitly held that any resulting restriction on its jurisdiction to hear a petition under ss 353-358 did not limit its jurisdiction to rule on a question referred to it by the Senate under s 376-381. The decision to refrain from any decision on the operation of s 44(i) appears to have been motivated rather by a wish to put prospective candidates on notice of its probable operation, as a minatory paragraph on page 169 of the report makes clear.

Instead, the Court relied on the effect of ss 162163 of the Commonwealth Electoral Act, as applied to the Senate by s 34 of the Constitution: in order to be “capable of being elected as a Senator”, a person “must be an Australian citizen”. It followed (at 162) that Wood “was not entitled to be nominated for election as a senator”; his election and return “could not create the legal capacity to be a senator which s 163 denies”. As the Court concluded (at 164): “The election and return of such an unqualified candidate is wholly ineffective to fill a vacant Senate place. Senator Wood’s election was void.”

The Court went on (at 167-68) to hold that the filling of a casual vacancy under s 15 of the Constitution was not an appropriate solution, since “the vacancy which awaits filling is not a casual vacancy”. Section 15 is expressed to apply when “the place of a senator becomes vacant before the expiration of his term of service”, but here no “term of service” had ever been commenced” and since “the place of a senator” had never been taken, it could not “become vacant.” The Court stressed that the expression “becomes vacant” is used repeatedly in Chapter I of the Constitution, and invariably refers to “a situation in which the place of a senator or member, having been filled, becomes vacant by reason of some supervening event”.

Although the Court made it clear that the next appropriate step should be a recount, it refrained from making further orders; but the report in 167 CLR goes on to set out day-by-day details of everything that happened thereafter. On 7 June 1988, Chief Justice Mason sat to hear an application for order prescribing the procedure for a recount. The Full Court judgment had doubted whether the Court had jurisdiction to make such orders, but (at 172) the Chief Justice noted that the Court had explicit power to declare a person elected, and expressed the view “that as an incident of the exercise of this power the Court can give appropriate directions with respect to the counting or recounting of ballot-papers at an election”. At 174-175 he went on to state the essential problem:

The point is that only the election of Robert Wood miscarried so that a primary or preferential vote for him must be disregarded. But in other respects the election for the Senate was valid and in counting the votes it is necessary to have regard to the group voting ticket process as it related to the Group E candidates because that process was a central feature of the ballot-paper. As the electors were entitled to vote in accordance with a group voting ticket process, it must be taken into account in order to give effect to the intentions of the voters as expressed in the ballot-papers.

The orders were framed accordingly.

At a further hearing on 21 July, the Solicitor-General tendered an affidavit from the Electoral Officer showing that, as a result of the recount, the successful candidate was Irina Dunn, the second person on the Nuclear Disarmament ticket. Counsel for Elaine Nile raised further objections; but these (said the Chief Justice at 176) were not “within the terms of reference by the Senate to this Court and accordingly they are not issues which I can pursue”. Instead, he ordered that, as a result of the recount, Irina Dunn be declared duly elected.

Heather Hill

The results of the Full Court hearing in Sue v Hill (1999) 199 CLR 462 are fully reported; but for what happened in the earlier and later proceedings before Chief Justice Gleeson, one needs to dig further. The details are fully reported in the High Court transcripts for 15, 16 and 29 March (for the earlier proceedings) and for 24 June, 29 June and 2 July (for the later proceedings); and are conveniently summarised in a Supplementary Submission to the Joint Standing Committee on Electoral Matters, made by the Australian Electoral Commission on 28 September 1999 on the subject of Petitions to the Court of Disputed Returns.

At the federal election on 3 October 1998, Heather Hill was the first of five candidates for Pauline Hanson’s One Nation. As the first on the ticket, she obtained a quota in her own right without reliance on preferences; indeed, she was the third of the candidates to be elected. Her election was challenged in two petitions – one filed by Henry Sue (a Queensland businessman suing as a voter) and the other by Terry Sharples (a disgruntled former candidate for One Nation, who by now was seeking the party’s disendorsement for political fraud).

Chief Justice Gleeson stated a case for the Full Court on Sue’s petition. Justice Callinan stated a similar case on the basis of Sharples’ petition – though ultimately, on 29 July 1999, that petition was dismissed on the basis that “all of the relief that should be granted in respect of it …, has already been granted in the proceedings on the other petition”.

Sue’s original complaint against Heather Hill was no more coherent than Elaine Nile’s original complaint against Robert Wood; at the initial hearing on 15 March, the Chief Justice described it as “an uncritical spray … taking the language of the statute and not bothering to work out what your case really was”. But it was ultimately amended to raise the issue of whether, under s 44(i) of the Constitution, Ms Hill was “incapable of being chosen” because of her continued entitlement “to the rights or privileges of a subject or a citizen of a foreign power”.

What happened in the Full Court is widely known. As to the preliminary question of whether the petition could be heard at all, the Court divided 4:3 – the dissenters insisting that the procedure for determining such a question under ss 376-381 of the Commonwealth Electoral Act 1918 (by providing for referrals to that Court by the relevant House of the Federal Parliament) had excluded the possibility of such questions being raised by petition under ss 353-358 of the Act. But the four majority judges who held that they did have jurisdiction held that Heather Hill was indeed “incapable of being chosen” because she had not renounced her British citizenship until after she was elected. In response to the formal questions reserved by the stated case for the Court’s opinion, the majority answered “No” to the question whether Heather Hill had been duly elected, and also answered “No” to the question whether the election was “void absolutely”. But as to the further question whether there should be a recount, the answer was: “Inappropriate to answer”.

The reason for this was explained by Justice Gaudron (at 530). Since Hill had been the third person to achieve a quota, the suggestion was that there should be a recount only for the third position; but the judges were worried that the recount might affect positions 4, 5 and 6 as well. For that reason, the issue of what ought to happen was left to be determined by a single judge (with an opportunity for senators-elect 4, 5 and 6 to be heard).

On 24 June (the day after the judgments were delivered in the Full Court), Chief Justice Gleeson sat again as the Court of Disputed Returns, to organise further proceedings so as to ensure that everyone with a possible interest in a recount had an opportunity to be heard.  He directed the Australian Electoral Commission to write to all the other successful candidates alerting them to what was happening.  Counsel for the Commission advised him that a recount could be done by computer and would take about 45 minutes.

On 28 June the Commission filed a Notice of Motion, attaching a schedule for a recount, and setting out a series of possible orders prescribing exactly how the recount should be conducted.  It would begin by transferring any vote for Heather Hill to the candidate next in that voter’s preference, with all the numbers indicating subsequent preferences to be treated as altered accordingly.  Thereafter the count would proceed “as nearly as practicable” in accordance with s 273A of the Commonwealth Electoral Act. The object would be first to identify which candidate should take the third position formerly taken by Heather Hill, and then to identify whether the recount resulted in any changes in the fourth, fifth and sixth positions.

On 29 June Chief Justice Gleeson held a further hearing pursuant to the Notice of Motion.  The Commission presented an affidavit advising that a complete recount of all formal votes was appropriate, and further advising that any recount “that did not take into account all formal votes” would not be appropriate.  The Commonwealth Attorney-General was represented by counsel, as were Len Harris (listed second on the One Nation ticket), Senators-elect Mason and Woodley (currently elected to the fifth and sixth Senate places) and Senator Bill O’Chee (a former National Party Senator who had been defeated in the latest election).  All of them assented to the recount (“on the basis that the recount would resolve whether any questions arose about disturbing the election or re-election of other candidates”).  The Chief Justice then ordered the Electoral Commission “to conduct a full recount according to the schedule, and report back to the Court with the results”.

Finally, at a further hearing on 2 July, an affidavit from the Electoral Commission which “advised the outcome of the full recount” was read to the Court.  The Chief Justice then made an order to the effect that Heather Hill was not duly elected, and “that Mr Len Harris be declared duly elected” in her place.

The submission from the Electoral Commission on 28 September 1999 makes two other points of interest. The first is spelled out in paragraphs 4.5.16 and 4.5.17. The Chief Justice had ordered at the Court’s final sitting that the costs of all parties (other than the Attorney-General and the Electoral Commission) should be borne by the Commonwealth; and specifically that this included the costs of the entire proceedings, “extending over a period of some six months, and involving numerous counsel and senior counsel”. But the Australian Government Solicitor and the Department of Finance had subsequently advised the Commission “that the costs awarded against the Commonwealth are the responsibility of the AEC”.

The second point is made in paragraphs 5.2.7 to 5.2.9. In a formal report tabled in Parliament on 25 August 1997, the House of Representatives Standing Committee on Legal and Constitutional Affairs had recommended “that whilst the AEC should have no role in vetting the constitutional qualifications of candidates, the AEC should provide further detailed information to prospective candidates”; and the Commission had done so. But despite “the clear explanations” in the AEC Candidates Handbook and on the nomination form itself, it was apparent that Heather Hill had “failed to take note of these clear warnings”.

Conclusion

Both for Robert Wood and for Heather Hill, the probable result of a recount was that the second person on the same ticket would be elected; and that proved to be the case. But without a recount it could not have been predicted with certainty. In the case of Heather Hill, who had originally been the third of six persons elected, it was probable that the recount would do nothing to disturb the position of those elected to the fourth, fifth and sixth positions; and again this proved to be the case, but could not have been predicted with certainty.

Similarly, if there were to be a recount in the case of Rodney Culleton, it would be probable that the seat initially assigned to him would go to the next person on the One Nation ticket (his friend Peter Georgiou); and though Culleton was originally the eleventh of twelve persons elected, it would be probable that a recount would do nothing to disturb the position of the twelfth person elected (Greens Senator Rachel Siewert). But again, although these results would be probable, in the absence of a recount they could not be predicted with certainty.

Moreover, the resolution of the jurisdictional question in Sue v Hill makes it clear that, even if no petition is filed by the deadline of 16 September, that may not be the end of the matter. The decision makes it clear that, alongside the procedure for resolving questions of possible disqualification by petition under ss 353-358 of the Commonwealth Electoral Act, it is equally possible for such questions to be raised by referral from the Senate under ss 376-381 of the Act. In addition, although Sue v Hill leaves the question unresolved, it is probable that the Senate still has the capacity to resolve such a question for itself under s 47 of the Constitution. And neither of these potential capacities vested in the Senate is subject to any limitation of time.

Whatever the procedure by which it will finally be resolved, the basic question remains. Throughout the election period Culleton was in fact “incapable of being chosen”, and the question is whether anything in the Crimes (Appeal and Review) Act 2001 (NSW) enables him to avoid the consequences of that clear fact. To be precise, there are two crucial questions: whether the NSW Act does have that effect, and whether it is capable of doing so.

The initial focus, as noted above, is on s 10 of the Crimes (Appeal and Review) Act, which is relevant because on 8 August the conviction imposed in March was annulled. The section provides that, on being annulled, a conviction “ceases to have effect”.

On the one hand, the use of the word “annulment” might suggest that the intention is to bring about a complete retrospective erasure: the conviction and all its legal consequences are to be wiped out as if for legal purposes they had never existed. On the other hand I have suggested that, in ordinary English usage, the words “ceases to have effect” would not normally be understood in that way.

The problem is similar to that which confronted the High Court in Dignan’s Case (1931) 46 CLR 73, once it was held that the regulatory power conferred by s 3 of the Transport Workers Act 1928 (Cth) was valid. The difficulty was explored by Justice Dixon at pages 104-111.

The regulation in question came into force on 27 June. The defendants contravened its provisions on 17 July, and were convicted on 24 July. The regulation was disallowed by the Senate on 29 July. According to s 10 of the Acts Interpretation Act 1904 (Cth), the effect of the disallowance was that the regulation thus disallowed “shall thereupon cease to have effect”. At 105 Justice Dixon framed the resulting question as follows:

Do the words “such regulation shall … cease to have effect” express an intention that it shall no longer receive any force as a law, or do they mean that, although the legal consequences shall remain of any failure before its disallowance to comply with the regulation, it shall not otherwise continue in force?

His conclusion (at 106) was unambiguous:

[A]fter a regulation has been disallowed, no one is liable to conviction for an offence committed while it is in force. His liability ceases when the law is revoked that imposes it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.

Having thus concluded that the disallowance of the regulation had not erased the conviction, he went on to hold that the only function of the High Court was to determine (as he put it at 107) “whether, at the time of their conviction, they were actually under the liability to which they were adjudged”.

In the Culleton case it is even clearer that, throughout the election period, it was true to say that “the conviction continues in force”. The fact that the conviction was annulled on 8 August (ironically, on the very same day as the final return of the writs) is irrelevant. What matters is that, at the time of the election, the conviction remained in force and he was “incapable of being chosen”.

An alternative focus is on s 63 of the Crimes (Appeal and Review) Act, which is relevant because, throughout the election period, Culleton had an appeal pending against his conviction on 2 March. The section’s primary operation is that, once an appeal is lodged, the execution of “any sentence” is stayed pending the determination of the appeal. But the section also imposes a similar stay in respect of

any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction.

Here Culleton might be on stronger ground. The effect of s 44(ii) of the Constitution is undoubtedly a “disqualification … as a consequence of a conviction”. And throughout the election period, an appeal against the conviction was pending, apparently with the result that the consequent disqualification was stayed. The trouble is that this is not a disqualification “that arises under an Act”, but under the Constitution.

And this is why, for s 10 of the Act as well as for s 63, the real question is not whether they do relieve Culleton of his disqualification, but whether they are capable of doing so. As Justice Fullagar memorably remarked in Australian Communist Party v Commonwealth (1951) 83 CLR 1, at 258, it is “an elementary rule of constitutional law … that a stream cannot rise higher than its source”.

The metaphor has many implications. Its relevance here is that the Parliament of a State, in the exercise of the legislative powers preserved for it (though not reserved for it) by s 107 of the Constitution, has no power to override the operation of the Constitution itself. The fact that, throughout the election period, Culleton was “incapable of being chosen”, arises as the inexorable result of the direct operation of s 44 of the Constitution. Even if ss 10 and 63 of the NSW Act have the meaning for which Culleton will presumably argue, that meaning cannot alter a result with direct constitutional force. It is no accident that the “stay” required by s 63 of the NSW Act while an appeal is pending extends only to disqualifications arising “under an Act”.

And if a State Parliament cannot override the Constitution, it seems even more obvious that an Armidale magistrate cannot do so.

Tony Blackshield is an Emeritus Professor of Law at Macquarie University, a Visiting Professorial Fellow at the University of New South Wales, and an Honorary Professor of the Indian Law Institute in New Delhi.

Suggested citation:  Tony Blackshield, ‘Void or Vacant? The Vibes of Vardon’ on AUSPUBLAW (26 August 2016, updated 28 August 2016) <https://auspublaw.org/2016/08/void-or-vacant-the-vibes-of-vardon/>