LAWS1205 Study Guide - Final Guide: Conscientious Objector, Ballot, Voting Age
Week 3
Tuesday, 14 March 2017
22:54
Constitution, ss 1, 7, 9,10 , 24, 27, 31, 51(xxxvi) and 122.
Candidates for election
Constitution ss 34 (qualification of members), 44(disqualifications), 45(vacancy on
happening of disqualifications)
Sykes v Cleary (1992) 176 CLR 77
School teacher, on leave without pay for about 2 years
Got elected while he was still officially a teacher, and thus an officer under the
Teaching service Act
Issue: eligibility and violation of s 44, separation of power ( a member of
the executive cannot be a member of the legislature)
Cleary was disqualified because he was still an officer the day he lodged his
nomination and the day he got elected
On leave without pay does not mean he was no longer an officer
Performance as public servant conflicts the duties of the House of Reps
Risking independent judgement
Also had citizenship of another state, and did not took the steps to divest
themselves from foreign identities
Needed reasonable steps to denounce foreign nationality
'office of profit under the Crown' - in relation for s 44
Blackstone defined an offence as right to exercise a public or private employment
and to take the fees and emoluments thereunto belonging
Excepted in Australia that officer includes public servants, officers of the department
of government
Independent opinions; capacity to attend to the duties of a member of the house;
membership of the House would detract from the performance of the relevant public
service duty
Had to resign before nomination
Cleary resigned 16.04.1992, and declaration of poll occurred 23.04, could have saved
But s 44 refers to the entire process of being chosen, and hence before nomination
Other candidates were also addressed here"
Kardamitsis and Delacretaz:
Delcretaz: Australian citizen, but he did not make an application to the Government of
Switzerland to renounce his Swiss citizenship, and he was required to make an
application
Kardamitsis: Australian citizen, and he didn't make application to the Government of
Greece to discharge his Greek Nationality
Both did not take reasonable steps to divest themselves of foreign citizenship, they
remained entitled to the rights or privileges of a subject or a citizen of a foreign power
within s44(i)
All reasonable steps to divest himself/herself of any conflicting allegiance :this
depends on the circumstances of the particular case. Usually depends on the situation of
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the individual, the requirements of foreign law and the extent of the connexion between
the individual and the foreign state
Eligibility for election
Commonwealth Electoral Act 1918:
1. 18 years old
2. Australian citizen
3. Either an elector entitled to vote at a House of Rep or
Qualified to become such an elector is qualified to be elected as a Senator or
member of the House of Rep
Section 43: a member of either House of the Parliament shall be incapable of
being chosen or of sitting as a member of the other house
Section 44 contains the disqualifications
Re Webster (1975)CLR:
Shareholder in JJ Webster Ltd: small family company established by Webster's
grandfather in 1920 to control the family's timber business
At the 1974 election, Webster was a managing director, secretary and manager of the
company
The company had submitted quotations on tenders, accepted offers and entered into
contracts for the supply of timber to Commonwealth departments
Whether the senator had 'any direct or indirect pecuniary interest in any
agreement with the public service of the Commonwealth within the meaning of s
44(v).
Held not disqualified applying the rules of contract law
Held that each quote submitted by the company was an offer, that acceptance
occurred each time the government placed an order, that each such acceptance gave rise
to a separate contract
Contracts of a more permanent or continuing and lasting character, the holding
and enjoying of which might improperly influence the action both of legislators
and the Government
The agreement to fall within the scope of s 44(v) must have a currency for a
substantial period of time , and one which the Crown could influence the contractor in
relation to parliamentary affairs by the existence of the agreement
Re Wood (1988) CLR:
The HC gave a clear warning
Wood was elected as a senator of NSW
His election was challenged on the ground he was a British citizen
The HC held Wood had not been validly elected, but that the election was void as the
problem could be solved by a further distribution of preferences
Free v Kelly (1996) CLR:
Conceded that s 44(iv) as interpreted in Skyes v Cleary, disqualified because at the
time elected Kelly she had been an officer of the RAAF
Re Culleton (2017)(HCA):
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Document Summary
Constitution, ss 1, 7, 9,10 , 24, 27, 31, 51(xxxvi) and 122. Constitution ss 34 (qualification of members), 44(disqualifications), 45(vacancy on happening of disqualifications) School teacher, on leave without pay for about 2 years. Got elected while he was still officially a teacher, and thus an officer under the. Issue: eligibility and violation of s 44, separation of power ( a member of the executive cannot be a member of the legislature) Cleary was disqualified because he was still an officer the day he lodged his nomination and the day he got elected. On leave without pay does not mean he was no longer an officer. Performance as public servant conflicts the duties of the house of reps. Also had citizenship of another state, and did not took the steps to divest themselves from foreign identities. Needed reasonable steps to denounce foreign nationality. "office of profit under the crown" - in relation for s 44.
