Opinion Number. 291



Key Legislation


The Minister for Home Affairs

An election of senators was held in South Australia last year and Sir Josiah Symon, Mr Russell, and Mr Vardon were returned as elected.

A petition was lodged in the Court of Disputed Returns against the return of Mr Vardon, and the petition was heard at Adelaide before His Honour Mr Justice Barton. (1)

At the hearing of the petition evidence was given that all the ballot-papers for the Division of Angas had been accidentally destroyed.

The Court after hearing the petition made an order declaring that the election was absolutely void in respect of the return of Mr Vardon.

The order of the Court was communicated to the Senate and the President, in accordance with section 21 of the Constitution, notified the Governor of South Australia that a vacancy had happened in the representation of that State.

In accordance with section 15 of the Constitution, a joint sitting of both Houses of the Parliament of South Australia was held on 11 July 1907, and the Hon. J. V. O’Loghlin was chosen as a senator to fill the vacancy and was sworn in and took his seat as a senator on 17 July 1907.

On 23 August 1907, a petition was presented to the Senate on behalf of Mr Vardon praying that the choice of Mr O’Loghlin as a senator by the two Houses of the State Parliament might be declared null and void. This petition is still under consideration in the Senate.

Information has been received that the ballot-papers used in the Angas Division were not destroyed as was believed to have been the case, and that they are now in existence.

The Minister for Home Affairs asks to be advised on the following points:

  1. As to how far, if at all, the decision of the Court of Disputed Returns might be affected by the subsequent discovery that the Angas Senate voting papers had not been, as was believed, destroyed.
  2. Generally as to the case.

Point (1) The Court of Disputed Returns is a special tribunal created to try questions of controverted elections. In the case Holmes v. Angwin 4 C.L.R., p. 297, it was held that the Supreme Court of Western Australia, in the exercise of its jurisdiction under the Electoral Ac t 1904 [Western Au s tra lia ] was not the Supreme Court o f that State within the meaning of section 73 of the Constitution but, although consisting of a judge of the Supreme Court, was a special tribunal to whose arbitrament Parliament had delegated the power of deciding the qualifications to sit in those assemblies, and that no appeal lay to the High Court from its decisions. The reasoning in this case is applicable to the Court of Disputed Returns under the Commonwealth Electoral Act. Griffith C.J. at p. 304 says ‘It is a general rule that when a new Court is created, whatever jurisdiction is conferred upon it, there is no appeal from the~deeision of that Court unless it is conferred by Statute’.

Apparently therefore there would be no appeal from the Court o f Disputed Returns unless specially provided for. Not only is no appeal provided for, but express provision is made that all decisions of the Court shall be final and conclusive and without appeal and shall not be questioned in any way. See Commonwealth Electoral Ac ts 1902-1906, section 201.

In the United Kingdom it is provided that the certificate of the judge who tried an election petition shall be final to all intents and purposes: 31 & 32 Vic. c. 125(2), section 11 (13). Under this Act it was held that where an election petition claims the seat for one of the defeated candidates and the judge on the trial of the petition decides that such candidate was duly elected the judge’s decision is final, and a petition against the return of such candidate cannot subsequently be presented: Waygood v. James 4L.R.C.P. 361.

In that case, Montague Smith J., at pp. 369-70 said:

I should have thought, on general principles, that where a judge has jurisdiction over an issue, and where no appeal to any other tribunal is given from his decision, such decision would be final. But it further appears to me that upon the plain words of the 13th sub-section of the 11th section of the act the certificate of the judge is made by virtue of the statute final and conclusive. Language could hardly be stronger than the words used in that section. It is enacted that 'at the conclusion of the trial', i.e., the trial of the petition under which by the 53rd section of the act the issue may be raised whether or no the candidate claiming the seat was duly elected, 'the judge who tried the petition shall determine whether the member whose return or election is complained of, or any or what other person, was duly returned or elected, or whether the election was void, and shall forthwith certify in writing such determination to the speaker', so that the judge is bound on such a petition to determine who was duly elected at the election, and to certify his decision to the speaker, and 'upon such certificate being given, such determination shall be final to all intents and purposes'. It seems to me exceedingly difficult to say after this express enactment that the determination of the judge, that Mr James was duly elected, can be in any way impugned. Certainly the statute does not shew any mode by which it could be impugned. The statute gives no appeal, but, on the contrary, contains the very words that are to be found in statutes in like cases when it is intended that there should not be an appeal-'the determination shall be final to all intents and purposes'.

The same judge, at p. 371, said:

The decision given on such inquiry is a decision in rem, and the intention of the act is expressed in very plain terms, that the determination of the judge upon it shall be final, and put an end^o all further investigation into the election.

Brett J., at p. 372, said:

Supposing this, however, not to be so, then arises the next question, viz., whether on such a petition there can be a second trial with regard to the election. It seems to me that there cannot, because upon the true construction of this act the first judgment is a judgment upon the status of the person originally elected, and is binding against all the world. Section 11, subs. 13, states in terms that the judgment is to be final and conclusive, and the meaning of the words there used is to be construed by reference to s. 13, which shews that it is not only to be binding as between the parties, but it is to be binding upon the House of Commons. It is made obligatory on the House of Commons to carry out the decision of the judge's certificate ministerially, without any discretion on their part. This is strong to shew that the meaning of the words in s. 13 is that the judgment there mentioned is to be final.

It was objected in the case that the parties might fraudulently collude; but Brett J. pointed out that a judgment in rem may be challenged and set aside on the ground of fraud between the parties to the deception of the Court. It is not necessary for me to consider whether a decision of the Court of Disputed Returns could be challenged on the ground of fraud, as there is no suggestion of fraud between the parties in the case under consideration.

I am of opinion that, assuming no valid allegation of fraud could be substantiated, the decision of the Court of Disputed Returns in this case cannot, after being communicated to Parliament, be reopened in any way. It is absolutely final, and is not affected by the discovery that the Angas Senate voting papers have not been destroyed.

Point (2) The petition against Mr O'Loghlin is now under consideration m the Senate. The petition, in substance, claims that the choice of Mr O'Loghlin as a senator by the two Houses of Parliament of South Australia is null and void. The Angas ballot-papers cannot in any way affect the determination by the Senate of the questions raised in the petition.

I am of opinion that the discovery of the Angas ballot-papers does not affect the proceedings before the Senate; nor, as far as I can see, does the discovery affect any matter in relation to the case which has arisen up to the present time.

It would however be advisable to take any steps necessary for the preservation of the ballot-papers, so that they may be available in the event of an inquiry into the matter being considered necessary.

[Vol. 6, p. 143]

(1) Blundell v. Vardon 4 C.L.R. 1463.

(2) Parliamentary Elections Act 1868 (Imp.).

* See also Opinion No. 292.