Kicking goals for democracy?: The High Court and 'Sykes v Cleary'

Abstract

On 25 November 1992 the High Court handed down its judgment in 'Sykes v. Cleary'. The case involved two issues arising under s.44 of the Commonwealth Constitution from the Wills by-election of 11 April 1992. The petitioner, Ian Sykes, an unsuccessful candidate in the election, claimed that the first respondent, Philip Cleary, held an office of profit under the Crown contrary to s.44(iv) of the Constitution. The office alleged was Mr Cleary's employment as a teacher on leave without pay under the 'Teaching Service Act' 1981 (Vic.). It was also submitted that the second and third respondents, John Delacretaz and Bill Kardamitsis, naturalised Australian citizens, contravened s.44(i) of the Constitution. The claim was that they were subjects or citizens, or entitled to the rights or privileges of a subject or citizen, of a foreign power. Section 44 states that persons offending these prohibitions are " ... incapable of being chosen or of sitting as a senator or a member of the House of Representatives". The High Court decided 6-1 (Mason C.J., Toohey and McHugh JJ.; Brennan, Dawson and Gaudron JJ. concurring; Deane J. dissenting) that Mr Cleary was disqualified under s.44(iv). Secondly, the court held 5-2 (Mason C.J., Toohey and McHugh JJ.; Brennan J. and Dawson J. in separate judgments; Deane and Gaudron JJ. dissenting) that Mr Delacretaz and Mr Kardamitsis had not taken all reasonable steps to divest themselves of their dual nationality and were therefore disqualified under s.44(i). The decision has profound implications for representative democracy at Commonwealth level. Significant numbers of potential political candidates are employed by the Crown in right of the Commonwealth or a State. Even larger numbers of Australians have dual citizenship or entitlements to rights or privileges of other nations. The disqualification of either may impoverish the pool of representative talent. It may also result in unequal electoral representative rights. The declaration of the election as void resulted in the electors of Wills being unrepresented until the 1993 Federal election.