Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen of the United Kingdom and Australia, and that section 44(i) of the Constitution of Australia prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.
Background
Australian independence from the United Kingdom
The degree to which Australia is and has been independent from the United Kingdom is a topic of much debate. The common view is that there has been an evolutionary process by which Australia has gained more and more independence.
The 1926 Imperial Conference resulted in the Royal and Parliamentary Titles Act 1927, and the Balfour Declaration 1926, which granted the Dominions equal status to the United Kingdom. However, laws passed by the Parliament of the United Kingdom still had force in Australia, and laws passed by Australian parliaments would be invalid if they contradicted United Kingdom laws (the doctrine of repugnancy). The Statute of Westminster Adoption Act 1942 ended the doctrine of repugnancy, and provided that United Kingdom laws would only have force in Australia at Australia's request.
The Australia Act 1986 ended all legal ties between Australia and the United Kingdom. The Act, enacted by the Parliament of Australia and the Parliament of the United Kingdom, ended the ability of the United Kingdom to make laws for Australia or employ the doctrine of repugnancy, and stopped all remaining avenues of appeal to the Privy Council from Australian courts, unless authorised by the High Court of Australia.
1998 election
Heather Hill, a woman with Australian and United Kingdom dual citizenship, who was born in London in 1960 and moved to Australia in 1971, was a Queensland candidate for the Australian Senate for One Nation who contested the 1998 federal election. At the election on 3 October 1998, Hill received 295,903 first preference votes and was accordingly elected without the need to consider the distribution of preferences.
Henry Sue, a voter from Queensland, disputed the election of Hill and filed a petition under the Commonwealth Electoral Act 1918 in the High Court of Australia, sitting in its capacity as the Court of Disputed Returns. Sue argued that on the date of Hill's nomination to the Senate she was still a citizen of the United Kingdom and thus, because of the operation of section 44 of the Australian Constitution, was ineligible to be elected to the Parliament of Australia.
Terry Sharples, a former One Nation candidate who had stood for the Senate in the 1998 election as an independent candidate, made a similar petition. Because both cases involved constitutional questions, and were substantially identical, they were heard together from 11–13 May 1999.
Arguments
Eligibility of Hill
Sue argued that Hill was ineligible because of section 44(i) of the Constitution of Australia, which provides that: 44. Any person who - (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: ...shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Sue argued that, since Australia was now an independent nation, the United Kingdom should properly be regarded as a foreign power.
Sue also raised the example of section 51(xix) of the Australian Constitution, which grants the Parliament of Australia the power to make laws with respect to "naturalization and aliens", and argued that since the word "aliens" in that section had come to be regarded to include people from the United Kingdom, so too should the word "foreign power" be understood to include the United Kingdom.
The Government of Australia decided to intervene in the case, and the Solicitor-General of Australia, David Bennett, also argued that the United Kingdom was a "foreign power".