R v Governor of South Australia [1907] HCA 31; (1907) 4 CLR 1497 (8 August 1907)

HIGH COURT OF AUSTRALIA

The King v The Governor of the State of South Australia

H C of A

8 August 1907

Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.

Sir John Downer K.C. (Piper with him), for the prosecutor, moved to make the order absolute.

Sir Julian Salomons K.C. and Rolin, for the Governor of South Australia.

Cullen K.C., and Bavin, for the Attorney-General for the Commonwealth.

Sir John Downer K.C. and Piper in support of the rule.

The judgment of the Court was read by

Barton J.

This is an application on behalf of an elector of the State of South Australia for a prerogative writ of mandamus addressed to the Governor of that State, commanding him to cause a writ to be issued for the election of a senator to fill a vacancy, which undoubtedly occurred, and which it is alleged has not been filled. The material facts are as follows:—At the end of the year 1906 the places of three of the senators for South Australia became vacant by effluxion of time under the provisions of sec. 13 of the Constitution. An election was held in due course, and three persons were returned as duly elected. Upon a petition presented to the Court of Disputed Returns under the provisions of the Commonwealth Electoral Act 1902 it was declared that the election was void so far as regarded one of them. Thereupon both Houses of the Parliament of South Australia, assuming to act under the provisions of sec. 15 of the Constitution, sat together and chose a person to hold the place of the senator whose place had become vacant, this choice was certified by the Governor, and the person so chosen has since sat and voted as a senator. The applicant contends that the case was not within sec. 15, and that the attempted choice of the Houses of Parliament was a mere nullity. He maintains that when the election of a senator elected at a popular election becomes ineffective for any reason, a new popular election must be held, for which purpose the Governor of the State is bound to cause a writ to be issued, and that the performance of this duty may be enforced by mandamus.

The respondent contends that sec. 15 applies to all cases in which there has been an election de facto, and that in such a case every person returned has a term of service, which may expire with the declaration of the Court of Disputed Returns that he was not duly elected. He says that, since challengeable elections become unchallengeable at the expiration of the time allowed for petitioning, an irregular election is voidable and not void, and that the words "the place of a Senator" in sec. 15 consequently mean the place de facto occupied, whether de jure, or not.

It is necessary to refer to some of the provisions of the Constitution in detail. Sec. 7 of the Constitution provides that "the Senate shall be composed of senators for each State directly chosen by the people of the State, voting ... as one electorate." They are to be chosen for a term of six years, and the names of the senators chosen for each State are to be certified by the Governor of the State to the Governor General. Sec. 9 authorizes the State Parliament to make laws for determining the time and place of elections for the Senate. Sec. 11 provides that "the Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate." This phrase seems to suggest primâ facie that the doing of all things necessary for giving the State its representation in the Senate is entrusted to the State itself, an idea which is emphasized by the provisions of sec. 9 just quoted. Sec. 12 provides that "the Governor of any State may cause writs to be issued for elections of senators for the State." This, of course, means in any case in which the choice of a senator is under the Constitution to be made by popular election.

Sec. 13 provides that "the term of service of a senator chosen in ordinary rotation shall be taken to begin on the first day of January following his election" (except in certain cases not now material). It was suggested that this provision is inconsistent with an election being held after the first of January to fill vacancies which ought to have been filled at an election held before that day, but we do not think that there is anything in this point. If the election ought now to be held, it should, we think, be taken to be held nunc pro tunc for all purposes. Otherwise the main purpose of securing a regular rotation of senators would be frustrated.

Sec. 15 provides that "if the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor" as prescribed. If the State Parliament is not in Session the Governor of the State in Council may appoint a person to hold the place of senator temporarily. In either case the name of the person chosen or appointed is to be certified by the Governor of the State to the Governor General.

Sec. 19 provides for the vacation of a seat in the Senate by resignation, and sec. 20 for the vacation of a seat by continued absence without permission.

Sec. 45 provides for the vacation of the seat of senator upon the arising of certain disqualifications.

Sec. 47 prescribes that "until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises."

Sec. 21 provides that whenever a vacancy happens in the Senate it shall be notified by the President or by the Governor General to the Governor of the State in the representation of which the vacancy has happened. It was not disputed in argument that a vacancy, occurring in consequence of a declaration under sec. 47 that a senator was not duly elected, would be a vacancy within the meaning of sec. 21.

In execution of the power conferred by sec. 47, the Commonwealth Electoral Act 1902 provided that the Court of Disputed Returns may declare that a senator who has been returned as elected was not duly elected, or that an election was absolutely void (sec. 197). It also provided (sec. 205, sub-sec. III.), that if the Court declares that the election is absolutely void a fresh election shall be held.

It is clear, however, that when a vacancy occurs in the Senate it must be filled in the manner prescribed by the Constitution, whatever that may be, and that the Parliament cannot by any Statute make any valid provision to the contrary. It is equally clear that the Senate could not by any exercise of its powers under sec. 47 affect the question of the proper mode of filling a vacancy, and that the powers of the Court of Disputed Returns are not more extensive. In the present case, as already stated, the decision of the Court was that the election was void as regarded one of the senators returned. Its validity as regarded the other two was not impeached. The Court did not, therefore, in fact, declare the election, i.e., the election held under the writ commanding the election of three senators, to be wholly void. We think the form of the order is quite immaterial. The only relevant fact is that the attempted choice of one of the three senators, who ought under sec. 7 to have been directly chosen by the people, was ineffectual. There is no doubt then that there was a vacancy within the meaning of sec. 21. Was it a vacancy within the meaning of sec. 15? And, if not, has this Court any and what jurisdiction to rectify the alleged mistake in the mode of choosing by the issue of a mandamus to the Governor?

The learned counsel for the Governor of South Australia contend that, whatever may be the proper mode of choosing a senator under the circumstances, a mandamus will not lie against the Governor. The counsel for the Commonwealth (the intervenants) further contend that no mistake has been made. We think that we are bound first to consider the objection to the jurisdiction of the Court.

The answer to the question thus raised for decision depends upon the nature of the functions and duties of the Governor of a State under the Constitution with respect to the election of senators. The formal functions and duties of the Governor are, as already pointed out, (1) to cause writs to be issued for the election of senators (sec. 12); (2) to certify to the Governor General the names of senators elected, chosen, or appointed (secs. 7, 15); and (3) to receive notification of vacancies in the office of senator (sec. 21). The object of the notification required by sec. 21 is obviously to inform the State, qua State, of the vacancy, so that the State may do what it thinks necessary in accordance with the Constitution to complete its representation in the Senate. The Governor, as the officiating Constitutional Head of the State, is accordingly named as the person to whom the notification is to be given, and the notification must be regarded as addressed to him in that capacity. So, in certifying to the Governor General the names of the senators elected, chosen, or appointed the Governor must be regarded as acting in the capacity of the Constitutional Head of the State, being in that capacity the proper channel of communication with the officiating Constitutional Head of the Commonwealth, the Governor General. We think that he must be regarded as acting in the same capacity when discharging the function of issuing a writ for the election of senators under sec. 12. For the purposes of the present inquiry the case may be considered as if the Governor had omitted to issue a writ for the election of three senators to fill vacancies occurring by effluxion of time. We will assume, without deciding, that sec. 12 imposes a duty upon the Governor to issue a writ in such a case. But the question remains: To whom does he owe this duty? A somewhat analogous duty is cast upon the State Governors under the Constitutions of the States, all of which provide that upon a dissolution of the Houses of Assembly the writs for a general election are to be issued by the Governor. It has never been suggested that if the Governor failed to issue the writs a mandamus would lie from a State Court to compel him to do so. There is, of course, a remedy in such a case but it is to be sought from the direct intervention of the Sovereign and not by recourse to a Court of law. The case of an election to the Senate is not quite analogous. It is conceivable that the Executive Government of a State for the time being might desire that no senator should be chosen to fill a particular vacancy. If they advised the Governor to abstain from taking any action to fill it, and refused to afford him the necessary administrative facilities, and he accordingly did nothing, it may be that he would have failed in his duty. But, if so, it is clear that the duty would be one which he owed to the State collectively. It is not easy to see how, in such a case, he could perform this duty without dismissing his Ministers and finding others, and that power is manifestly one the exercise of which could not be reviewed by any authority but the Sovereign. The duty, therefore, is one of the duties which the Constitutional Head of a State owes to the State (and in the case of a Governor, but in a slightly different sense, to the Sovereign), and its performance must be enforced in the manner appropriate to the case of such duties. Instances of such duties—duties of imperfect obligation—are familiar to students of Constitutional Law.

It follows from what we have said with regard to the election of senators that, although the Governor is the person designated to bring into operation certain provisions of the Constitution which ought to be brought into operation, and which cannot be brought into operation without his action, he cannot be regarded quoad hoc as an officer of the Commonwealth. The States are not subordinate to the Commonwealth, and the Commonwealth Judiciary cannot command the Constitutional Head of a State to do in that capacity an act which is primarily a State function. If, indeed, this Court could in any case undertake to command the necessary steps to be taken to secure the full representation of a State in the Senate, it is not easy to see why its authority should be limited to the case when the mode of choice alleged to be appropriate is a popular election. There are in fact three modes in which the place of a senator may be filled—popular election, choice by both Houses of Parliament, and appointment by the Governor with the advice of the Executive Council. In a case where the choice ought to be made by both Houses of Parliament it is quite clear that this Court could not command those Houses to meet and choose a senator, and it would be immaterial whether a writ had or had not been issued by the Governor for holding a popular election. It is equally clear that the Governer could not be commanded to do an act which he can only do with the advice of the Executive Council. As, therefore, this Court would have no authority to correct by mandamus a mistake of one kind as to the mode of choice, it seems clear that it was not intended to have authority to interfere by mandamus in such matters at all.

Apart from these considerations we think that a mandamus will not lie to the Governor of a State to compel him to do an act in his capacity of Governor. There is, of course, no British precedent for such a writ. Reference was made in argument to the cases in which it has been held that an action will lie against a colonial Governor for wrongful acts done by him. But it by no means follows that, because a Governor is liable to an action for a wrongful act done by him to the prejudice of an individual, he is liable to be commanded by mandamus to repair an omission to do a lawful act.

It is settled law that a mandamus will not lie against an officer of the Crown to compel him to do an act which he ought to do as agent for the Crown, unless he also owes a separate duty to the individual seeking the remedy. We do not think that the Governor of a State in the issuing of a writ for the election of senators is acting as agent for the Sovereign in this sense, since the duty imposed by the Constitution is imposed by Statute law and not by delegation from the Sovereign himself. But, as already pointed out, it is a duty cast upon him as Head of the State. And the same reasons which prevent a Court of law from ordering the Sovereign to perform a constitutional duty are applicable to a case where it is alleged that the Constitutional Head of a State has by his omission failed in the performance of a duty imposed on him as such Head of the State.

This argument is independent of that arising upon the language of sec. 75 of the Constitution. But in our opinion the Governor of a State is not, so far as regards the matter now in question, an officer of the Commonwealth within the meaning of the section. Nor do we think that the Judiciary Act has enlarged the jurisdiction of the Court in this respect.

For these reasons we hold that the application fails.

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.

Rule nisi for a mandamus discharged with costs against the applicant. Intervenants to bear their own costs.

Solicitor, for the applicant, P. R. Stow, Adelaide, by Minter, Simpson & Co., Sydney.

Solicitors, for the respondent, The Crown Solicitor for South Australia; The Crown Solicitor for the Commonwealth.