Sykes v Cleary
| Sykes v Cleary | |
|---|---|
 |
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| Court | High Court of Australia as the Court of Disputed Returns |
| Decided | 25 November 1992 |
| Citation(s) | [1992] HCA 60, (1992) 176 CLR 77 |
| Case history | |
| Prior action(s) | Sykes v Cleary [1992] HCA 32, (1992) 107 ALR 577; (1992) 66 ALJR 577 |
| Case opinions | |
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6:1 A teacher employed by a State held an “office of profit under the Crown” within the meaning of s 44(iv) and so was “incapable of being chosen” . 5:2 A dual citizen will be disqualified unless they have taken all reasonable steps to renounce the other citizenship. |
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| Court membership | |
| Judge(s) sitting | Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ |
6:1 A teacher employed by a State held an “office of profit under the Crown” within the meaning of s 44(iv) and so was “incapable of being chosen” .
Sykes v Cleary was a significant decision of the High Court of Australia sitting as the Court of Disputed Returns on 25 November 1992. The case was a leading decision on Section 44 of the Constitution of Australia, dealing with both what constitutes an office of profit under the Crown and allegiance to a foreign power. The majority held that a teacher employed by the State of Victoria held an “office of profit under the Crown” within the meaning of s 44(iv) and so was “incapable of being chosen”. A person who held dual citizenship was incapable of being chosen unless they had taken all reasonable steps to renounce the other citizenship.
The former Labor Party Prime Minister Bob Hawke had resigned as the member for Wills in 1992. Independent candidate Phil Cleary was declared elected in the 1992 by-election; he had the highest first-preference vote, and an absolute majority of the votes after an initial distribution of preferences. Another candidate, Ian Sykes, challenged the result in the High Court, sitting as the Court of Disputed Returns. If Cleary were to be excluded, on a recount the seat would most likely go to the Labor candidate Bill Kardamitsis or the Liberal candidate John Delacretaz, so Sykes challenged them too. Sykes claimed that Cleary was disqualified by Constitution s 44(iv) and the others by s 44(i). The Court upheld Sykes’s claims and declared the election void. No by-election was held, owing to the imminence of a general election. In the general election of 1993, Cleary and Kardamitsis stood again for Wills and Cleary was elected.
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