Sue v Hill
Encyclopedia
Sue v Hill was an Australia
n court case decided in the High Court of Australia
on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill
, to the Australian Senate
in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen
of the United Kingdom
and Australia, and that section 44(i)
of the Constitution of Australia
prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia
. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.
The 1926 Imperial Conference
resulted in the Royal and Parliamentary Titles Act 1927
, and the Balfour Declaration 1926
, which granted the Dominion
s equal status to the United Kingdom. However, laws passed by the Parliament of the United Kingdom
still had force in Australia, and laws passed by Australian parliaments would be invalid if they contradicted United Kingdom laws (the doctrine of repugnancy). The Statute of Westminster Adoption Act 1942
ended the doctrine of repugnancy, and provided that United Kingdom laws would only have force in Australia at Australia's request.
The Australia Act 1986
ended all legal ties between Australia and the United Kingdom. The Act, enacted by the Parliament of Australia
and the Parliament of the United Kingdom
, ended the ability of the United Kingdom to make laws for Australia or enact the doctrine of repugnancy, and stopped all remaining avenues of appeal to the Privy Council
from Australian courts, unless authorised by the High Court of Australia
.
, a woman with Australian and United Kingdom dual citizenship
, was a Queensland
candidate for the Australian Senate
for One Nation Party who contested the 1998 federal election. At the election on 3 October 1998, Hill received 295,903 first preference votes and was accordingly elected without the need to consider the distribution of preferences.
Henry Sue, a voter from Queensland, disputed the election of Hill and filed a petition under the Commonwealth Electoral Act 1918
in the High Court of Australia
, sitting in its capacity as the Court of Disputed Returns
. Sue argued that on the date of Hill's nomination to the Senate she was still a citizen of the United Kingdom and thus, because of the operation of section 44 of the Australian Constitution
, was ineligible to be elected to the Parliament of Australia.
Terry Sharples, a former One Nation candidate who had stood for the Senate in the 1998 election as an independent candidate, made a similar petition. Because both cases involved constitutional questions, and were substantially identical, they were heard together on 11 May to 13 May 1999.
of the Constitution of Australia
, which provides that:
Sue argued that, since Australia was now an independent nation
, the United Kingdom should properly be regarded as a foreign power.
Sue also raised the example of section 51(xix) of the Australian Constitution
, which grants the Parliament of Australia
the power to make laws with respect to "naturalization and aliens", and argued that since the word "aliens" in that section had come to be regarded to include people from the United Kingdom, so too should the word "foreign power" be understood to include the United Kingdom.
The Government of Australia
decided to intervene in the case, and the Solicitor-General of Australia
, David Bennett
, also argued that the United Kingdom was a "foreign power".
Hill, on the other hand, argued that: "The United Kingdom was not a foreign power at Federation, is not a foreign power now and never will be a foreign power while the Constitution remains in its present form." Hill said that because the Constitution was enacted as part of a statute of the British Imperial Parliament it derived its validity from British law. Further, she argued that because section 128 of the Australian Constitution provides that the Constitution cannot be changed except in accordance with that section, then only a constitutional referendum
could change this special status of the United Kingdom, and the Australia Act had no effect, "so long as the United Kingdom retained any residual influence upon legislative, executive or judicial processes in Australia, it could not be regarded as 'foreign' to Australia."
to hear the case. Hill argued that because of the structure of the Commonwealth Electoral Act 1918
, the court could not hear the case. She argued that elections could not be disputed by petition if the dispute was about the eligibility of a candidate, as another provision of the Act meant that it would require a resolution of the relevant house of Parliament, the Senate in this case.
The Government argued that the sections of the Act dealing with disputation by petition encompassed any question about the validity of an election, including the eligibility of a candidate, and that the sections should be interpreted broadly. Sue made a similar argument, saying that the sections allowing disputes by petition and the sections allowing disputes by the relevant house of Parliament were not mutually exclusive and that elections could be disputed by either the Parliament or the people.
meant that non-judicial power cannot be conferred on a Chapter III Court
such as the High Court.
Both the Government and Sue argued that two previous decisions, which may have inter alia
suggested that determining disputed returns is a non-judicial function, were incorrect. They said that the jurisdiction conferred by the Act required the court to consider real issues and not "abstract or hypothetical questions". They also said that the Act gave the court a wide discretion and allowed it to function in a manner entirely consistent with the exercise of judicial power.
Five judgments were delivered, with Chief Justice Gleeson
and Justices Gummow
and Hayne
writing a joint judgment, and Justices Gaudron
, McHugh
, Kirby and Callinan
writing individual judgments.
validly conferred the jurisdiction to determine disputed elections on the High Court, in its capacity as the Court of Disputed Returns. They said that if Hill's argument about the structure of the Act were correct, there would be the odd result that the court could hear disputes about a candidate's eligibility under the Act itself (which imposes certain requirements for candidates), but it would not be able to hear disputes about a candidate's eligibility under the Constitution. They also said that if only a house of Parliament could dispute a candidate's constitutional eligibility, then in the time it took for that house to determine the issue, an ineligible candidate would be able to participate in the business of that house, including passing laws and other activities.
The four judges then went on to decide that the jurisdiction involved an exercise of judicial power, mentioning an earlier decision of Justice Isaacs
, in which he had taken a functional approach, and determined that some functions, when conferred upon a legislative or executive body, can involve the exercise of non-judicial power, but the same functions when conferred on a judicial body involve the exercise of judicial power. The four judges found that the powers conferred on the court, to take evidence and compel witnesses and such, when vested in a judicial body such as the court, involved the exercise of judicial power. As such, the jurisdiction did not offend the separation of powers
.
Thus, the question would revolve around legal connections, and not around "Australia's strong historical and emotional ties with the United Kingdom."
They first considered whether the United Kingdom had any legislative power over Australia. Section 1 of the Australia Act 1986
provides that:
They held that this section completely removed any power held by the United Kingdom to exercise legislative power over Australia. Some commentators had suggested that section 1 of the Australia Act could pose constitutional problems in the United Kingdom, because of A. V. Dicey
's proposition that the Parliament
cannot restrict its future actions. To this, Gleeson, Gummow and Hayne said:
Thus they decided that the position in Australia was not affected at all by the position in the United Kingdom, and for Australian purposes, the United Kingdom has no legislative power over Australia.
Similarly they decided that the United Kingdom could not exercise any judicial power over Australia, with the end of appeals to the Judicial Committee of the Privy Council
, and the court's previous decision, in Kirmani v Captain Cook Cruises Pty Ltd (No 2)
not to grant any more certificates of appeal. They also decided that no executive power existed over Australia, as although the sovereign monarch of Australia and the sovereign monarch of the United Kingdom are the same person, it had been accepted for a long time that the monarch acts in Australian matters on the advice of Australian ministers, and does not accept the advice of United Kingdom ministers in Australian matters at all.
Ultimately, they concluded that the United Kingdom was a distinct sovereign power and a distinct legal personality from Australia, and as such was a "foreign power" for the purposes of section 44 of the Australian Constitution
.
, the number two candidate on the One Nation ticket, was elected in Hill's stead, taking up his seat on 1 July 1999.
The invalidation of Hill's election caused some controversy in Australian political life. Hill herself viewed the challenge to her election as an attempt by big business and the rich to destroy her, as revenge for One Nation's critique of them during the election campaign. One Australian Broadcasting Corporation
correspondent observed the irony that One Nation, a populist nationalist party, was "now suspected of not being quite Australian enough." Australian Greens
Senator Bob Brown
, despite being politically opposed to One Nation, attacked the decision for disenfranchising the people who had voted for Hill.
Aside from this immediate effect, the case represented a clear recognition that the Australia Act 1986
finally and completely ended all legal ties between the United Kingdom and Australia, and that Australia has been a fully independent and sovereign nation in its own right since at least 3 March 1986, when the Act came into force. Some commentators have criticised the evolutionary approach adopted by the court, and the court's resultant failure to find a certain date on which Australia became independent, arguing that the distinction is more than merely symbolic and could have real consequences. However, even Justice Callinan
, who questioned the evolutionary approach in this case, affirmed in a later case (Attorney-General Western Australia v Marquet) that the effect of the Australia Act in finally recognising independence could not be doubted.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n court case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill
Heather Hill
Heather Hill is a former English-Australian politician.Hill was born in 1960 in London. In 1971 her family moved to Australia, arriving in Brisbane, Queensland on 6 October of that year. She attended school in Brisbane...
, to the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen
Multiple citizenship
Multiple citizenship is a status in which a person is concurrently regarded as a citizen under the laws of more than one state. Multiple citizenships exist because different countries use different, and not necessarily mutually exclusive, citizenship requirements...
of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and Australia, and that section 44(i)
Section 44 of the Australian Constitution
Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...
of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.
Australian independence from the United Kingdom
The degree to which Australia is and has been independent from the United Kingdom is a topic of much debate. The common view is that there has been an evolutionary process by which Australia has gained more and more independence.The 1926 Imperial Conference
1926 Imperial Conference
The 1926 Imperial Conference was the sixth Imperial Conference held amongst the Prime Ministers of the dominions of the British Empire. It was held in London from 19 October to 22 November 1926...
resulted in the Royal and Parliamentary Titles Act 1927
Royal and Parliamentary Titles Act 1927
The Royal and Parliamentary Titles Act 1927 [17 & 18 Geo. 5 c. 4] was an Act of Parliament of the United Kingdom that authorised the alteration of the British monarch's royal style and titles, and altered the formal name of the British Parliament, in recognition of much of Ireland separating from...
, and the Balfour Declaration 1926
Balfour Declaration 1926
The Balfour Declaration of 1926, a report resulting from the 1926 Imperial Conference of British Empire leaders in London, was named after the British statesman Arthur Balfour, first Earl of Balfour, Lord President of the Council and a previous Prime Minister of the United Kingdom...
, which granted the Dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
s equal status to the United Kingdom. However, laws passed by the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
still had force in Australia, and laws passed by Australian parliaments would be invalid if they contradicted United Kingdom laws (the doctrine of repugnancy). The Statute of Westminster Adoption Act 1942
Statute of Westminster Adoption Act 1942
The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire...
ended the doctrine of repugnancy, and provided that United Kingdom laws would only have force in Australia at Australia's request.
The Australia Act 1986
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
ended all legal ties between Australia and the United Kingdom. The Act, enacted by the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
and the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, ended the ability of the United Kingdom to make laws for Australia or enact the doctrine of repugnancy, and stopped all remaining avenues of appeal to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
from Australian courts, unless authorised by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
.
1998 election
Heather HillHeather Hill
Heather Hill is a former English-Australian politician.Hill was born in 1960 in London. In 1971 her family moved to Australia, arriving in Brisbane, Queensland on 6 October of that year. She attended school in Brisbane...
, a woman with Australian and United Kingdom dual citizenship
Multiple citizenship
Multiple citizenship is a status in which a person is concurrently regarded as a citizen under the laws of more than one state. Multiple citizenships exist because different countries use different, and not necessarily mutually exclusive, citizenship requirements...
, was a Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
candidate for the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
for One Nation Party who contested the 1998 federal election. At the election on 3 October 1998, Hill received 295,903 first preference votes and was accordingly elected without the need to consider the distribution of preferences.
Henry Sue, a voter from Queensland, disputed the election of Hill and filed a petition under the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, sitting in its capacity as the Court of Disputed Returns
Court of Disputed Returns
The Court of Disputed Returns is a court, or a tribunal, or some other body that determines disputes about elections in some common law countries. Sometimes the court may be known by another name, such as the Court of Disputed Elections...
. Sue argued that on the date of Hill's nomination to the Senate she was still a citizen of the United Kingdom and thus, because of the operation of section 44 of the Australian Constitution
Section 44 of the Australian Constitution
Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...
, was ineligible to be elected to the Parliament of Australia.
Terry Sharples, a former One Nation candidate who had stood for the Senate in the 1998 election as an independent candidate, made a similar petition. Because both cases involved constitutional questions, and were substantially identical, they were heard together on 11 May to 13 May 1999.
Eligibility of Hill
Sue argued that Hill was ineligible because of section 44(i)Section 44 of the Australian Constitution
Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...
of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, which provides that:
44. Any person who - (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: ...shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Sue argued that, since Australia was now an independent nation
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
, the United Kingdom should properly be regarded as a foreign power.
Sue also raised the example of section 51(xix) of the Australian Constitution
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
, which grants the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
the power to make laws with respect to "naturalization and aliens", and argued that since the word "aliens" in that section had come to be regarded to include people from the United Kingdom, so too should the word "foreign power" be understood to include the United Kingdom.
The Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
decided to intervene in the case, and the Solicitor-General of Australia
Solicitor-General of Australia
The Solicitor-General of the Commonwealth of Australia is the Second Law Officer to the Attorney-General of Australia. The holders of this office are not members of parliament....
, David Bennett
David Bennett (barrister)
David Michael John Bennett AC, QC is an Australian barrister and former Solicitor-General of Australia.-Early years:...
, also argued that the United Kingdom was a "foreign power".
Hill, on the other hand, argued that: "The United Kingdom was not a foreign power at Federation, is not a foreign power now and never will be a foreign power while the Constitution remains in its present form." Hill said that because the Constitution was enacted as part of a statute of the British Imperial Parliament it derived its validity from British law. Further, she argued that because section 128 of the Australian Constitution provides that the Constitution cannot be changed except in accordance with that section, then only a constitutional referendum
Referendums in Australia
In Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
could change this special status of the United Kingdom, and the Australia Act had no effect, "so long as the United Kingdom retained any residual influence upon legislative, executive or judicial processes in Australia, it could not be regarded as 'foreign' to Australia."
Jurisdiction
Another question in the case was whether the High Court, sitting as the Court of Disputed Returns, had jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear the case. Hill argued that because of the structure of the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
, the court could not hear the case. She argued that elections could not be disputed by petition if the dispute was about the eligibility of a candidate, as another provision of the Act meant that it would require a resolution of the relevant house of Parliament, the Senate in this case.
The Government argued that the sections of the Act dealing with disputation by petition encompassed any question about the validity of an election, including the eligibility of a candidate, and that the sections should be interpreted broadly. Sue made a similar argument, saying that the sections allowing disputes by petition and the sections allowing disputes by the relevant house of Parliament were not mutually exclusive and that elections could be disputed by either the Parliament or the people.
Separation of powers
Hill also argued that if the Electoral Act actually appeared to confer jurisdiction on the court, it was nevertheless invalid, as the determination of disputes about election results is a non-judicial function. Also, the doctrine of separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
meant that non-judicial power cannot be conferred on a Chapter III Court
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
such as the High Court.
Both the Government and Sue argued that two previous decisions, which may have inter alia
Inter Alia
-Track listing:# Inter Alia# Outfox'd # Righteous Badass # The Altogether feat. Bix, Apt, UNIVERSE ARM and Cal# The Day-to-Daily# Trouble Brewing # The Prestidigitator# The Force...
suggested that determining disputed returns is a non-judicial function, were incorrect. They said that the jurisdiction conferred by the Act required the court to consider real issues and not "abstract or hypothetical questions". They also said that the Act gave the court a wide discretion and allowed it to function in a manner entirely consistent with the exercise of judicial power.
Judgment
The High court ruled that Senator-elect Hill had not been duly elected to the national parliament because at the time of her election she was a subject or citizen of a foreign power.Five judgments were delivered, with Chief Justice Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
and Justices Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
and Hayne
Kenneth Hayne
Kenneth Madison Hayne AC is a Justice of the High Court of Australia which is the highest court in the Australian court hierarchy.-Education and professional life:...
writing a joint judgment, and Justices Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
, McHugh
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
, Kirby and Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
writing individual judgments.
Jurisdiction
Gaudron, and jointly Gleeson, Gummow and Hayne, decided that the Commonwealth Electoral Act 1918Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
validly conferred the jurisdiction to determine disputed elections on the High Court, in its capacity as the Court of Disputed Returns. They said that if Hill's argument about the structure of the Act were correct, there would be the odd result that the court could hear disputes about a candidate's eligibility under the Act itself (which imposes certain requirements for candidates), but it would not be able to hear disputes about a candidate's eligibility under the Constitution. They also said that if only a house of Parliament could dispute a candidate's constitutional eligibility, then in the time it took for that house to determine the issue, an ineligible candidate would be able to participate in the business of that house, including passing laws and other activities.
The four judges then went on to decide that the jurisdiction involved an exercise of judicial power, mentioning an earlier decision of Justice Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
, in which he had taken a functional approach, and determined that some functions, when conferred upon a legislative or executive body, can involve the exercise of non-judicial power, but the same functions when conferred on a judicial body involve the exercise of judicial power. The four judges found that the powers conferred on the court, to take evidence and compel witnesses and such, when vested in a judicial body such as the court, involved the exercise of judicial power. As such, the jurisdiction did not offend the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
.
Foreign power
On the important issue of whether the United Kingdom was a "foreign power", only Gaudron, and jointly Gleeson, Gummow and Hayne, decided the matter, the other three judges having already found that the court did not have jurisdiction to hear the case. All four judges deciding did find that the United Kingdom was a "foreign power", because it no longer retained any legislative, executive or judicial influence over Australia. Gleeson, Gummow and Hayne said that the question was:
"... not about whether Australia's relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty."
Thus, the question would revolve around legal connections, and not around "Australia's strong historical and emotional ties with the United Kingdom."
They first considered whether the United Kingdom had any legislative power over Australia. Section 1 of the Australia Act 1986
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
provides that:
1. No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.
They held that this section completely removed any power held by the United Kingdom to exercise legislative power over Australia. Some commentators had suggested that section 1 of the Australia Act could pose constitutional problems in the United Kingdom, because of A. V. Dicey
A. V. Dicey
- References :...
's proposition that the Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
cannot restrict its future actions. To this, Gleeson, Gummow and Hayne said:
"Provisions such as s 1 may present doctrinal questions for the constitutional law of the United Kingdom, in particular for the dogma associated with Dicey's views as to the sovereignty of the Parliament at Westminster. Professor Sir William WadeHenry William Rawson WadeSir William Wade QC, FBA was a British academic lawyer, best known for his work on the law of real property and administrative law.Wade was educated at Shrewsbury School and at Gonville and Caius College, Cambridge...
pointed out more than forty years ago that Dicey never explained how he reconciled his assertions that Westminster could destroy or transfer sovereignty and the proposition that it could not bind future Parliaments. The effect in the United Kingdom of any amendment or repeal by the United Kingdom Parliament of s 1 would be for those adjudicating upon the constitutional law of that country. But whatever effect the courts of the United Kingdom may give to an amendment or repeal of the 1986 UK Act, Australian courts would be obliged to give their obedience to s 1 of the statute passed by the Parliament of the Commonwealth."
Thus they decided that the position in Australia was not affected at all by the position in the United Kingdom, and for Australian purposes, the United Kingdom has no legislative power over Australia.
Similarly they decided that the United Kingdom could not exercise any judicial power over Australia, with the end of appeals to the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, and the court's previous decision, in Kirmani v Captain Cook Cruises Pty Ltd (No 2)
Kirmani v Captain Cook Cruises Pty Ltd (No 2)
Kirmani v Captain Cook Cruises Pty Ltd [1985] HCA 27; 159 CLR 461, was a decision handed down in the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia...
not to grant any more certificates of appeal. They also decided that no executive power existed over Australia, as although the sovereign monarch of Australia and the sovereign monarch of the United Kingdom are the same person, it had been accepted for a long time that the monarch acts in Australian matters on the advice of Australian ministers, and does not accept the advice of United Kingdom ministers in Australian matters at all.
Ultimately, they concluded that the United Kingdom was a distinct sovereign power and a distinct legal personality from Australia, and as such was a "foreign power" for the purposes of section 44 of the Australian Constitution
Section 44 of the Australian Constitution
Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...
.
Consequences
The court declared that Hill was not validly elected at the 1998 federal election. However, they did not declare the whole election invalid, acting on an earlier decision of the court, because although no effect could be given to voters' preferences for Hill, their other preferences were not invalid, and those could be used to determine who should be elected in Hill's stead. The court did not reach a definite decision about what action should be taken, remitting that question to a lower court. Eventually, Len HarrisLen Harris
Leonard William Harris was an Australian politician who was the only One Nation representative to gain a seat in the Australian Parliament as a Senator from the state of Queensland...
, the number two candidate on the One Nation ticket, was elected in Hill's stead, taking up his seat on 1 July 1999.
The invalidation of Hill's election caused some controversy in Australian political life. Hill herself viewed the challenge to her election as an attempt by big business and the rich to destroy her, as revenge for One Nation's critique of them during the election campaign. One Australian Broadcasting Corporation
Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...
correspondent observed the irony that One Nation, a populist nationalist party, was "now suspected of not being quite Australian enough." Australian Greens
Australian Greens
The Australian Greens, commonly known as The Greens, is an Australian green political party.The party was formed in 1992; however, its origins can be traced to the early environmental movement in Australia and the formation of the United Tasmania Group , the first Green party in the world, which...
Senator Bob Brown
Bob Brown
Robert James Brown is an Australian senator, the inaugural Parliamentary Leader of the Australian Greens and was the first openly gay member of the Parliament of Australia...
, despite being politically opposed to One Nation, attacked the decision for disenfranchising the people who had voted for Hill.
Aside from this immediate effect, the case represented a clear recognition that the Australia Act 1986
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
finally and completely ended all legal ties between the United Kingdom and Australia, and that Australia has been a fully independent and sovereign nation in its own right since at least 3 March 1986, when the Act came into force. Some commentators have criticised the evolutionary approach adopted by the court, and the court's resultant failure to find a certain date on which Australia became independent, arguing that the distinction is more than merely symbolic and could have real consequences. However, even Justice Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
, who questioned the evolutionary approach in this case, affirmed in a later case (Attorney-General Western Australia v Marquet) that the effect of the Australia Act in finally recognising independence could not be doubted.