Fabre v Ley [1972] HCA 65; (1972) 127 CLR 665 (8 December 1972)

HIGH COURT OF AUSTRALIA

FABRE v. LEY [1972] HCA 65; (1972) 127 CLR 665

Constitutional Law (Cth) - Parliamentary Elections (Cth) - Banker and Customer

High Court of Australia
Barwick C.J.(1), McTiernan(1), Menzies(1), Walsh(1), Gibbs(1), Stephen(1) and Mason(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Powers of Commonwealth Parliament - Electoral laws - Election to House of Representatives - Nomination for election to be accompanied by deposit in legal tender or in a banker's cheque - Validity - The Constitution (63 & 64 Vict. c. 12), ss. 31, 51 (xxxvi.) - Commonwealth Electoral Act 1918- 1966 (Cth), ss. 73*, 75**.

Parliamentary Elections (Cth) - House of Representatives - Nomination for election - Conditions for validity of nomination - Deposit with nomination papers "in legal tender or in a banker's cheque" - Whether personal cheque legal tender or banker's cheque - Whether "formal defect or error" - Commonwealth Electoral Act 1918-1966 (Cth), ss. 73, 75.

Banker and Customer - Banker's cheque - Whether cheque drawn by a customer on his bank a banker's cheque - Bills of Exchange Act 1909-1971 (Cth), s. 78.

HEARING

Sydney, 1972, November 24; December 8. 8:12:1972
QUESTIONS reserved under s. 18 of the Judiciary Act 1903-1969 (Cth).

DECISION

December 8.
THE COURT delivered the following written judgment : -
According to his statement of claim filed in this action, the plaintiff Electoral Office for the Electoral Division of Lowe a nomination paper nominating him as a candidate in the election for the House of Representatives to be held on 2nd December 1972, as a representative of the Australian Commonwealth Party. On presenting the nomination paper the plaintiff proposed to satisfy the requirements of s. 73 (c) (ii) of the Commonwealth Electoral Act 1918-1966 (the Act) by offering the officer a personal cheque to the amount of $100. The officer refused to accept the cheque as a deposit on the ground that it was not a "banker's cheque". The plaintiff contested this view of the officer, leaving with him the nomination paper which had endorsed thereon the plaintiff's consent to act if elected and his declaration that he was qualified under the Constitution and the laws of the Commonwealth to be elected a Member of the House of Representatives. The hour of nomination for the election of the House of Representatives to be held on 2nd December 1972 was twelve o'clock noon on 10th November 1972, and apparently the interval between the time of the plaintiff's attendance at the Electoral Office and that hour was insufficient to permit the plaintiff, had he desired to do so, to obtain $100 in cash. (at p667)

2. On 15th November 1972, the plaintiff, by writ of summons accompanied by a statement of claim, commenced an action against the defendants whose personal names were added by amendment made on 22nd November 1972, pursuant to leave granted in that behalf. Upon a summons for directions the following questions were directed by the Chief Justice to be argued before a Full Court in the present sittings of the Court, pursuant to s. 18 of the Judiciary Act 1903-1969, viz :

"(1) Whether upon the facts stated in the statement of claim
lodged by the plaintiff in this cause the plaintiff's
nomination for election as a member of the House of
Representatives was valid.

(2) Whether I have jurisdiction to hear an action founded on
the plaintiff's statement of claim.

(3) Whether s. 73 (c) (ii) is a valid law of the Commonwealth." (at p668)

3. The first and third questions were argued before all members of the Court on 24th November 1972, and at the conclusion of the argument the Court answered the first question in the negative and the third question in the affirmative. The Court said that it would not answer the second question. The Court indicated that it would in due course give its reasons in writing for so answering the questions. (at p668)

4. Section 73 of the Act provides :

"73. No nomination shall be valid unless -

(a) the person nominated consents to act if elected, and
declares that he is qualified under the Constitution
and the laws of the Commonwealth to be elected as
a Senator or a Member of the House of
Representatives, as the case may be ;

(b) the nomination paper is received after the issue of
the writ and before the hour of nomination ; and

(c) at the time of the delivery of the nomination paper
the person nominated or some person on his behalf
deposits with the Commonwealth Electoral Officer
or Divisional Returning Officer, as the case requires,
the sum of -

(i) in the case of a person nominated as a Senator
- Two hundred dollars ; or

(ii) in the case of a person nominated as a Member
of the House of Representatives - One hundred
dollars,
in legal tender or in a banker's cheque."

Section 75 provides :

"75. No nomination shall be rejected by reason of any
formal defect or error therein if the Commonwealth Electoral
Officer or Divisional Returning Officer receiving the nomination
is satisfied that the provisions of this Act have been
substantially complied with." (at p668)

5. A nomination of a candidate may be made in respect of the House of Representatives in terms of form D in the schedule to the Act (s. 71). It may have endorsed thereon, as was done in the present case, the candidate's consent and his declaration of qualification (see form D in schedule). A nomination, whether in form D or not, is required to name the candidate, his place of residence and occupation and to be signed by not less than six persons entitled to vote at the election for which the candidate is nominated (s. 71). At the hour of nomination a Divisional Returning Officer for the Division is required to attend at the place of nomination for the Division and there publicly produce all nomination papers received by him and declare the names and residences of all candidates nominated, that is to say, of all candidates who have fully complied with the requirements of the process of nomination (s. 79 (2)). (at p669)

6. It is convenient, we think, to deal first with the question of the constitutional validity of s. 73 (c). Section 31 of the Constitution provides :

"31. Until the Parliament otherwise provides, but subject
to this Constitution, the laws in force in each State for the time
being relating to elections for the more numerous House of the
Parliament of the State shall, as nearly as practicable, apply
to elections in the State of members of the House of
Representatives." (at p669)

7. Section 51 (xxxvi.) of the Constitution gives legislative power with respect to "matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Thus, the power of the Parliament to enact an electoral law for the election of the Parliament is derived from ss. 51 (xxxvi.) and 31. Until the Parliament should legislate, the electoral law of the former colonies applied to any election for the House of Representatives. However, the legislative power of the Parliament is not subject to any restriction other than that which flows from s. 41 of the Constitution. (at p669)

8. It is, in our opinion, beyond doubt that a law providing for the nomination of candidates for elections is a law falling within the subject matter of ss. 51 (xxxvi.) and 31. The requirement of the deposit of a sum of money of the order of the sum stipulated in the Act as a condition of the validity of a nomination is, in our opinion, clearly within the competence of the Parliament as within that subject matter. The prescription of a sum which is seen to be disproportionate to the evident purpose of the requirement of a deposit by an intending candidate might well be beyond power, not because the requirement of a deposit is outside the power but because the amount required indicated that the Parliament was not confining itself to the legislative subject matter. As more than a matter of interest, it may be observed that the electoral laws of four of the six colonies provided, as at the enactment of the Constitution Act, for the lodgment of a deposit of money at the time of nomination of a candidate for election. (at p669)

9. Further, in our opinion, the manner in which the money sum properly chosen by the Parliament to be deposited shall be provided is within the competence of the Parliament. In our opinion, the submission of the plaintiff that s. 73 (c) (ii) is invalid as being beyond the competence of the Parliament is without any foundation. Accordingly, in our opinion, the third question must be answered in the affirmative. (at p670)

10. The submission of the plaintiff with respect to the first question varied in statement during argument but in substance it was that the description "banker's cheque" was not defined by the Act, was not a technical expression or an expression of certain significance, that the description "banker's cheque" in the section was not synonymous with the description "bank cheque" and that it could equally mean a cheque drawn by a banker and a cheque drawn on a banker. It was apparently conceded that the description "bank cheque" was current in the community at the time of the enactment of the Act and that the personal cheque could not be described as a "bank cheque". The conclusion of the plaintiff's submission was that the personal cheque offered by the plaintiff as the deposit to accompany the nomination paper was a banker's cheque within the meaning of s. 73 (c) (ii). (at p670)

11. Section 78 of the Bills of Exchange Act 1909-1971 (Cth) provides that a cheque is a bill of exchange drawn on a banker payable on demand. Therefore, in the expression "banker's cheque", the word "banker's" must add something to the description of a cheque. A cheque of which s. 78 of the Bills of Exchange Act speaks is what counsel for the plaintiff said would be known as a personal cheque, a cheque drawn by an individual on his bank. Thus it is, in our opinion, clear that the description "a banker's cheque" will not be satisfied by "a personal cheque". (at p670)

12. It appears that for a considerable number of years there has been a practice in Australia of bankers issuing what have come to be known as "bank cheques" at the request of customers who have some reason to provide cash or its equivalent in commercial transactions - see Union Bank of Australia v. McClintock (1922) 1 AC 240, at p 245 and Manning and Farquharson : Banker and Customer in Australia (1947), p. 38. These are drafts drawn by a bank usually on itself but occasionally upon another bank : in either case they are issued in the form of cheques. It has been questioned whether a draft of this kind is a cheque within such a provision as s. 78 of the Bills of Exchange Act. The question arose because the definition of cheque incorporates that of bill of exchange and a cheque drawn by a bank upon itself is not "addressed by one person to another" within the latter definition (which is now contained in s. 8 (1) of the Bills of Exchange Act) : see McClintock v. Union Bank of Australia Ltd. (1920) 20 SR (NSW) 494 . In 1932, s. 88A was inserted in the Bills of Exchange Act making a banker's draft payable on demand drawn by or on behalf of a bank upon itself a cheque for the purposes of the crossed cheque provisions of the Bills of Exchange Act. However, although it may be more accurate to refer to a bill of exchange drawn by a bank on itself as a banker's draft, the nomenclature "bank cheque" is, and has for long been, used in Australia to describe instruments of this kind. Such instruments are in common use by solicitors in the settlement of transactions, including real property transactions, in cases where it is inconvenient to carry currency and cash or its equivalent is required on a settlement. The expression "banker's cheque" may be somewhat wider in meaning than "bank cheque" in that it may include a cheque drawn by a bank upon another bank as well as a "cheque" drawn by a bank upon itself, but it is clear that both expressions, "banker's cheque" and "bank cheque", refer only to a "cheque" which is drawn by a bank. (at p671)

13. The plain intention of the Parliament in enacting s. 73 (c) (ii) is that cash or its equivalent shall be deposited with the nomination paper. When the Divisional Returning Officer declares the nominations, as required by s. 79 (2), there must be no question that the amount of the deposit is or will without doubt be in hand. In our opinion, the description "banker's cheque" was intended by the Parliament to apply exclusively to a cheque drawn by a banker either upon himself or upon another bank. In our opinion, the cheque proffered by the plaintiff was not a banker's cheque within the meaning of the section and the condition of depositing with the nomination paper one hundred dollars was not met by or on behalf of the plaintiff in due time or at all. The failure to deposit the sum of $100 as required by s. 73 (c) (ii) could not be regarded as a formal defect or error within s. 75. Consequently, in our opinion, there was no valid nomination of the plaintiff. The Divisional Returning Officer was under no duty to declare the plaintiff's name as a candidate for the Electoral Division of Lowe in the election of the House of Representatives to be held on 2nd December. (at p671)

14. The Solicitor-General indicated during his argument that he did not ask the Court to answer the second question. Consequently, we shall not discuss either the form of the plaintiff's action or whether or not it lacked necessary parties or the extent of the relief which might have been given in the action had the questions (1) and (3) or either of them been answered otherwise than as has been the case. Nor need we refer to the relationship, if any, between Pt XVIII of the Act and this Court's jurisdiction under s. 75 of the Constitution. It suffices to say that quite plainly a Justice has jurisdiction to dismiss the action, the questions (1) and (3) having been answered as the Court has answered them. (at p672)

15. We ought to note in passing a submission made on behalf of the plaintiff that the provisions of s. 73 (c) (ii) amounted to imposing a property qualification for a person to be a Member of the House of Representatives. But the Act does not require the money deposited to be the money of the candidate. In any case, if he is elected the money is refunded to him. In our opinion, s. 73 (c) (ii) does not impose a qualification of membership of the House of Representatives, though if it did, we can see no reason why it should be invalid having regard to the terms of ss. 34 and 51 (xxxvi.) of the Constitution. For these reasons, questions (1) and (3) should be answered as already answered and question (2) not answered. (at p672)

ORDER

The questions referred to the Full Court, pursuant to s. 18 of the Judiciary Act 1903-1969 (Cth), answered as follows :

(1) No.

(2) Not answered.

(3) Yes.