Three Questions Referred under Articles 36 & 55 of the Constitution [1977] NRSC 2; [1969-1982] NLR (A) 57 (24 May 1977)

[1969-1982] NLR (A) 57

IN THE SUPREME COURT OF NAURU

Constitutional References Nos. 1 and 2 of 1977

THREE QUESTIONS REFERRED UNDER ARTICLE 36 OF THE CONSTITUTION AND TEN QUESTIONS REFERRED UNDER ARTICLE-55

24^th May, 1977.

Parliament - Article 31(c) of the constitution - disqualification - conviction for offence punishable by imprisonment for one year - fine imposed - whether disqualification results.

Parliament - Article 31(c) of the Constitution - disqualification - conviction - meaning of "convicted and is under sentence".

Parliament - Article 31(c) of the Constitution - disqualification - conviction - meaning of "or is subject to be sentenced for an offence".

Parliament - Article 31(c) of the Constitution - disqualification - conviction - meaning of "punishable according to law by death or imprisonment for one year or longer".

Parliament - Articles 31(c) and 32(b) of the Constitution - disqualification - conviction - member vacating seat upon becoming disqualified - when disqualification takes effect.

Parliament - disqualification - conviction - vacation of seat by member - appeal against.-conviction – whether member restored to seat if appeal successful.

Parliament - disqualification - conviction - when disqualification ceases.

Article 31(c) of the Constitution provides that no person is qualified to be elected a member of Parliament if he "has been convicted and is under sentence or is subject to be sentenced for an offence punishable according to law by death or by imprisonment for one year or longer".

Article 32(b) provides that a member of Parliament loses his seat "upon becoming disqualified under Article 31 to be elected a member of Parliament". H., a member of Parliament, was convicted in the District Court of two offences of common assault and fined $40 in respect of each offence. He paid the fines. He also appealed to the Supreme Court against his conviction for both the offences. The Cabinet then referred three questions to the Supreme Court for its decision upon them under Article 36 of the Constitution, and ten questions to the Supreme Court for its opinion under Article 55. The questions, which are set out in full in the judgment of the Court were all concerned with the meaning and effect of Articles 31(c) and 32(b) of the Constitution.

Held:

(1) A person who is convicted of an offence the maximum penalty for which is set by law as imprisonment for one year or longer becomes disqualified to be elected a member of Parliament immediately upon conviction, i.e. before the sentence is imposed.

(2) He ceases to be subject to be sentenced as soon as the sentence is imposed.

(3) He ceases to be "under sentence", in the case of a fine, when he has paid the fine and, in the case of imprisonment, when he has served the sentence.

(4) A member of Parliament who becomes disqualified by reason of conviction for an offence vacates his seat at the moment of becoming disqualified, i.e. upon conviction and before the sentence is imposed.

(5) He is eligible for re-election if he has ceased to be disqualified, i.e. if a fine is imposed, by having paid it.

(6) The vacation of his seat is not affected by his commencing an appeal against h s, conviction or by the result of any such appeal.

D.G. Land, Secretary for Justice, for Cabinet
Written submission on behalf of Mr. R. Harris received from G.J. Lawrie (of the New South Wales Bar)

Thompson, CJ:

On 21st February, 1977, Mr. Rene Harris, M.P., was convicted in the District Court of two offences of common assault contrary to section 335 of the Criminal Code of Queensland, an adopted statute; a fine of $40 was imposed in respect of each of them. Those fines have been paid; also Mr. Harris has appealed to this Court against the conviction for both offences.

Article 32 of the Constitution provides that a member of Parliament vacates his seat on the happening of any one of a number of events specified in that Article. Those events include that of a member becoming disqualified under Article 31 of the Constitution to be elected a member of Parliament. Article 31 provides for such disqualification if a person has been convicted and is under sentence, or is subject to be sentenced, for an offence punishable according to law by imprisonment for one year or longer.

On 24th March, 1977, Parliament passed a resolution requesting the Cabinet to refer to this Court and to require this Court to determine, under Article 55 of the Constitution, the question as to whether or not in the light of the convictions to which I have referred Mr. Harris "might retain his seat in this House" pending the result of his appeal to this Court.

Article 55 of the Constitution provides only for this Court to give its opinion on questions referred to it thereunder. Article 36, however, which requires that any question concerning the right of a person to remain a member of Parliament be referred to this Court, empowers and requires this Court to determine every such question referred to it. Consequently, in order to give effect to the resolution of Parliament, the Cabinet on 29th March, 1977, referred to this Court under Article 36 of the Constitution the following three questions-

1. Whether by reason of his conviction by the District Court upon two charges of common assault under the Criminal Code the Honourable Rene Harris vacated his seat in Parliament;

2. If so, at what point in time did he vacate his seat; and

3. Since Mr. Rene Harris has appealed against his convictions on both charges whether he may retain his seat in Parliament pending the determination by the Supreme Court of his appeals.

At the same time, apparently in order to provide guidance to the Speaker and members of Parliament as to the proper construction and effect of the provisions of Article 31 relating to disqualification for election resulting from a conviction and those of Article 32 relating to vacation by a member of his seat in Parliament upon suffering such disqualification, the Cabinet under Article 55 of the Constitution referred to this Court for its opinion thereon the following ten questions –

(a) Whether the words “has been convicted and is under sentence” in Article 31(c) of the Constitution include a case where the member of Parliament in question is fined;

(b) In alternative, what is the meaning of the words “convicted and is under sentence” in Article 31(c) of the Constitution;

(c) What is the meaning of the words “or is subject to be sentenced for an offence” in Article 31(c) of the Constitution;

(d) Whether the words “punishable according to law by death or for imprisonment for one year longer” in Article 31(c) of the Constitution mean that the person may by law be punished in such manner;

(e) In alternative, what is the meaning of the words, “punishable according to law by death or for imprisonment for one year longer” in Article 31(c) of the Constitution; (It should be noted in respect of questions (d) and (e) that the words used in Article 31 are "by imprisonment" and not "for imprisonment".)

(f) Whether the following statement is a correct interpretation of Articles 31(c) and 32(b) of the Constitution when read together, namely:-

"A member of Parliament vacates his seat immediately on conviction of any offence for which the maximum sentence is by law death or imprisonment for one year or longer even if the member in question is merely fined on his conviction in respect of such an offence."

(g) Whether a successful appeal against conviction will restore his seat in Parliament to the member convicted of an offence to which Article 31(c) of the Constitution applies;

(h) If a member of Parliament is convicted of an offence to which Article 31(c) of the Constitution applies, does his disqualification under Article 31 of the Constitution to be elected a member of Parliament cease:-

(i) In the case of imprisonment on completion of the sentence of imprisonment, and

(ii) In the case of the imposition of a fine on payment of the fine, or

(iii) In the alternative, when does the disqualification under Article 31 cease.

Because of question 3 referred under Article 36, and as a writ had been issued for a by-election to be held on 16th April, 1977, to fill the seat held until 21st February, 1977, by Mr. Harris, it was necessary for this Court to deal promptly with the references. Accordingly on 30th March, 1977, I directed that all submissions on the questions referred under Article 36 were to be made in writing by noon on 7^th April. In respect of the reference under Article 55, I directed that the Secretary for Justice might, if he wished, make a written submission on the question referred and that, if he did so, the submission should be made available to me by the same date and time as the submissions in respect of the question referred under Article 36. The directions were notified to the Secretary for Justice and Mr. Harris on 30th March, 1977. In the event I received written submissions from the Secretary for Justice, Mr.D.G. Lang, and, on behalf of Mr. Harris, from Mr. G.J. Lawrie, a barrister and solicitor practising in Sydney. Subsequently the reference of questions (a) to (h) under Article 55, was withdrawn and identical questions, similarly lettered (a) to (h), were referred to this Court, also under Article 55, by the Honourable Kenas Aroi, M.P., the Minister appointed for the time being to perform under Article 21 the duties and to exercise the functions of the President during the absence of the President from Nauru. Upon consideration of the submissions it was apparent that the haste with which they had had to be prepared might have prejudiced their thorough preparation. Furthermore, when I gave the direction for the questions referred under Article 36 to be determined entirely upon written submissions, I had overlooked the possibility that it might conflict with the requirements of Article 10(10) of the Constitution. The relevant provisions of that clause are:-

"(10) Except with the agreement of the parties thereto proceedings of a court .... shall be held in open court."

That possibly requires the parties be accorded an opportunity to address the Court orally. If it does, while there is no reason why a Court should not require written submissions in certain cases, it would appear to be precluded from requiring that submissions be made only in writing in proceedings to which there are parties, unless the parties agree. Whether, strictly, there are parties in these proceedings is doubtful but the spirit of Article 10(10) seems to be to require that Mr. Harris be treated as though he were one.

For both the reasons to which I have just referred I decided that it would not be proper finally to determine, solely upon the basis of those written submissions, the questions referred under Article 36. Accordingly I made an interim determination and order, which were necessary to maintain the status quo and to clarify Mr. Harris's position pending the final decision of those questions. I then adjourned the proceedings until 20th May, 1977. On that date Mr. Lang appeared and addressed the Court. Mr. Harris did not attend and was not represented, but his counsel, Mr. Lawrie, sent further written submissions.

In his submission made in April Mr. Lawrie objected on a number of grounds to this Court dealing with the references. I dealt with those objections when making my interim determination and order on 12th April. However, as Mr. Lawrie's second set of submissions is headed "Further Submissions", rather than "Revised Submissions" it is not clear that he has abandoned those objections. Neither he nor Mr. Harris was present in Court to clarify the matter. In the event I have given further consideration to those objections and. have come to the same conclusions as I did in April, and for the same reasons. At that time I stated my conclusions and reasons in the following passages:

"First, he submitted that Article 36 of the Constitution does not empower the Cabinet, as the Executive Arm of the Government, to refer questions to this Court. In this case the reference was made in consequence of a resolution of Parliament. It would probably have been more appropriate for Parliament to have required the Speaker to refer the questions under Article 36 and to have requested the President or a Minister to refer any other question under Article 55. (The Speaker, of course, has no power to refer questions under Article 55.) However, it is apparent that the Cabinet has acted at the request of Parliament in referring the questions under Article 36. There is nothing in Article 36 which expressly prevents the Cabinet from referring a question under that Article. It is not necessary in this case to consider whether in other circumstances the Cabinet, the President or a Minister might lawfully do so. In the circumstances of this case there is nothing unlawful or improper about the reference.

"Mr. Lawrie's second objection is to the reference of the questions referred under Article 55. The ground of his objection is that no "question concerning the interpretation or effect of any provision of the Constitution has arisen or appears likely to arise". Most of the questions referred under Article 55 on 29th March are questions which this Court will have to consider in dealing with the questions referred under Article 36. The only questions referred under Article 55 which are outside the reference under Article 36 are questions (g) and (h)(i). Question (g), concerning a member's position if his conviction is quashed, may or may not arise in Mr. Harris's case; as he has appealed, it must be regarded as at least a distinct possibility. Whether it is likely or not must be a matter of opinion. All that is required by Article 55 is that "it must appear to the Cabinet" to be likely to arise. Question (h)(i) cannot arise in Mr. Harris's case. However, it concerns the period of disqualification for election resulting from conviction and a sentence of imprisonment. Although it is couched in terms of disqualification of a member of Parliament, such a member who has become disqualified is in no different position from any other person, so far as the period of disqualification is concerned. Every time there is an election there are people in Nauru serving sentences of imprisonment, others who have served such sentences and, sometimes, yet others whose sentences of imprisonment have been suspended pending appeal. The question of the eligibility of one or more of those persons to be elected to Parliament is likely to arise at some time in the future, if it has not arisen already.

"I consider, therefore, that there is no reason why this Court should not accept a reference of all the questions which have been referred to it under Article 55. It may appear to serve little purpose to answer those questions referred under Article 55 which have to be considered in determining those under Article 36. However, it does no harm to have them answered with more particularity than might be the case if they were dealt with only as steps on the way to determining the questions referred under Article 36. The purpose of references under Article 55 is to obtain the guidance of the Court, in order to enable decisions to be taken and things to be done in accordance with the Constitution and not in contravention of it. The opinions given by this Court on questions referred to it under Article 55 are not binding determinations - although anyone who deliberately flouts any opinion does so at his peril as to the legal consequences!

"Mr. Lawrie's next submission is that the determination of the questions referred to this Court will necessarily involve an investigation by this Court of the facts on which the District Court based its conviction of Mr. Harris, and that any adverse finding or determination would necessarily prejudice Mr. Harris's right to a fair and impartial hearing of his appeal against his conviction. That, Mr. Lawrie submits, would constitute a denial of natural justice to Mr. Harris. Those submissions are based by Mr. Lawrie on the premise that, as there is no judge of the Supreme Court other than myself, the Court would necessarily consist of myself in both proceedings. That premise is unsound. Article 53(1) of the Constitution empowers the President to appoint another person to perform any of the duties of the office of Chief Justice which I am unable for any reason to perform. If I considered that there would be a denial of natural justice to any party in any proceedings before this Court if in those proceedings the issues were adjudicated upon by the Court constituted by myself, I should disqualify myself from adjudicating upon them and notify the President accordingly that I was unable o perform the part of the duties of my office which consisted of constituting the Court for that purpose. I have no doubt that the President would thereupon appoint a suitable person to perform that part of those duties."

I reaffirm what I said then and turn now to consider the questions referred to this Court. All of those referred under Article 55 except questions (h)(i), (h)(ii) and (h)(iii), are, save that they are expressed in general terms, the same in substance as those required to be determined specifically in respect of Mr. Harris under Article 36. For that reason I shall deal with the two references together.

The questions, other than questions (h)(i), (h)(ii) and (h)(iii) referred under Article 55, fall into two groups. The first group is concerned with the circumstances in which disqualification on the ground of conviction arises and a member of Parliament vacates his seat. The second group is concerned with the effect of a successful appeal by a convicted member of Parliament against a disqualifying conviction and with the effect, before the appeal has been decided, of the possibility of such a successful appeal. The answers to some questions in the first group, e.g. questions 1 and 2 referred to this Court under Article 36, depend upon the answers to some of the questions in the second. Others, however, do not and it is those with which I shall deal first. They are questions (a), (b), (c), (d) and (e) referred under Article 55.

Before I do so, however, it is necessary to consider the principles which have to be applied in construing the Constitution. The Secretary for Justice has drawn to the Court's attention to two well-known English cases in which the principles to be applied are stated in alternative ways. They are Birks v. Allison [1862] EngR 1060; (1862) 13 C.B.N.S. 12 at 23 and Grey v. Pearson (1857) 6 H.L. Cas.61, at 106. The principles as expressed in the latter case are somewhat more restrictive than in the former. Whichever test is adopted, the first requirement is for the Court to consider whether the words used have a clear meaning if read in their natural and ordinary sense. If so, they must be given that meaning unless either there is reason upon their face to believe that they were not intended to bear that construction (the test applied in Birks' case) or to give them that meaning would lead to an absurdity or a repugnance with other provisions of the Constitution (the test applied in Grey's case).

In the portions of Articles 31 and 32 which it is necessary to construe for the purposes of these proceedings the meaning of all the words is clear if they are read in their natural and ordinary sense.

The relevant portion of Article 32 reads as follows:

"(1) A member of Parliament vacates his seat

.... (b) upon becoming disqualified under Article 31 to be elected a member of Parliament."

Article 31 provides for the circumstances in which a person is so disqualified; that provision is for a continuing personal status, e.g. the status of an undischarged bankrupt. In contrast, Article 32 clearly provides for vacation of his seat by a member at the instant when under Article 31 he becomes disqualified-to be elected. Mr. Lawrie has submitted that Article 31, because it relates to disqualification for election after conviction, does not have the effect of disqualifying a sitting member, i.e. a person already elected. To adopt such reasoning is to deny any meaning to Article 32(1)(b) and for that reason alone is most undoubtedly relates to future elections, a member of Parliament can, like any other person, become disqualified for future elections. Article 32 provides quite clearly that, if he does so, he also vacates his seat in the current Parliament.

The relevant portion of Article 31 reads as follows:

"No person is qualified to be elected a member of Parliament if he ....(c) has been convicted and is under sentence or is subject to be sentenced for an offence punishable according to law by death or by imprisonment for one year or longer."

The words "convicted" and "sentence" are in common use. The ordinary sense of "convicted" is "convicted by a court of justice upon a plea or finding of guilt in respect of a criminal offence". The ordinary sense of "sentence" is "determination by a court of justice of the punishment to be suffered by a person convicted of a criminal offence". Mr. Lawrie has submitted that "a person cannot be said to have been convicted with any degree of finality or at all whilst an appeal is pending and his legal rights have not been exhausted". Such a submission is inconsistent with the whole concept of a system of appeals in criminal cases. The appeal, unless it is only against sentence, is against the conviction. The conviction precedes the appeal.

To construe the words "convicted" and "sentence" in their natural and ordinary sense does not create an absurdity. It is not repugnant to any other provision of the Constitution; indeed it is entirely consistent with the provisions of Article 10. There is no reason upon the face of Article 31 to believe that they were intended to be given some other meaning.

A fine is one of the punishments provided for by the Criminal Code of Queensland (in its application to Nauru) which a Court can impose on a person convicted of an offence. Of course, the provisions of the Criminal Code, a statute subordinate to the Constitution, are not conclusive as to the meaning of the expression "punishment" in the Constitution. However, they afford evidence of the use of the expression in the criminal law, and it is to that law that Article 31(c) refers. Mr. Lawrie has submitted that a fine is not a punishment but a penalty. No doubt the word "penalty" has acquired a special meaning as a term of art but in that sense it is not the same as a fine. In its original broad sense it means the same as punishment. It is usual to refer to a Court sentencing an offender to pay a fine; an appeal against a fine imposed is referred to as an appeal against sentence. It is clear, therefore, that, in normal parlance, a sentence may be a determination that the offender is to pay a fine. I am satisfied that the word "sentence" in Article 31 is to be construed accordingly.

I turn now to consider the meaning of the phrase "under sentence". Quite clearly, as soon as sentence has been passed on a person who has been convicted he is "under sentence". Equally clearly, he ceases to be "under sentence" when he has suffered in full the punishment imposed or has been lawfully discharged of his obligation to do so. In the case of a fine, the punishment is suffered in full when the whole amount of the fine is paid. A sentence of imprisonment is suffered in full when the offender has served the whole term of it, or so much of it as the law requires him to serve, e.g. the period as stated in the sentence less any period remitted for good conduct. A sentence of death is suffered in full when the offender is hanged until he is dead. A sentence may be discharged by a pardon or by being set aside on appeal; when that occurs the offender ceases to be "under sentence" upon the pardon or the setting aside taking effect.

Between the time when the sentence is passed on, a convicted person and the time when he is totally free of any further liability to suffer it, there may be periods when it is suspended or its execution is respited. It may be suspended under the provisions of the Appeals Act 1972 pending the hearing and determination of an appeal or its execution may be respited by the President under Article 80 of the Constitution. During the period of suspension or respite the person on whom it was imposed is not liable to suffer the punishment immediately; but he continues throughout that period to be liable to suffer it in the future, when the suspension or the respite is at an end. It is necessary, therefore, to consider whether the words "under sentence" mean only "liable to suffer the punishment immediately" or have the broader meaning of "liable to suffer the punishment either immediately or at some time in the future". There is an ambiguity and in order to resolve it, it is necessary to have regard to the context. Article 31 is concerned with the disqualification of persons to be members of Parliament; the disqualifying factors for which it provides are of two kinds, personal unfitness for the office and conflict of interest. The factor to which paragraph (c) relates is personal unfitness; the proper test to apply would, therefore, appear to be to consider whether the temporary suspension or respite of the sentence, with future liability in respect of it unaffected, makes the convicted person any less unfit to be a member of Parliament. It is not without significance in relation to this question that the disqualifying sentence need not be a sentence of imprisonment. In my opinion the answer is "no"; he is still "under sentence" while the sentence is suspended or respited.

The next phrase in Article 31(c) which requires to be considered is "subject to be sentenced". The whole of the provisions of Article 31(c) presuppose that there will be in existence a system of trial of persons accused of criminal offences. Article 10 contains some provisions relating to the trial of such persons; but they are not comprehensive. Other legislative provision was obviously envisaged by those who framed the Constitution and it is clear that, in construing Article 31(c), regard may be had for the provisions of such legislation. The relevant legislation is now the Criminal Procedure Act 1972. Section 207 of that Act (applied by section 158 to trials in the District Court) provides that, where an accused person has been found guilty of an offence by the Court, the Court is required either to "convict him and pass sentence or make an order against him in accordance with law" to discharge him without proceeding to conviction, if that is permitted by law. Section 211 (which is also applied by section 158 to trials in the District Court) authorises the Court, after finding an accused person guilty of an offence, to receive evidence which may assist it to decide what sentence to impose or what order to make. The evidence may be received before or after the Court has convicted the offender. Usually, unless there are grounds to consider the discharge of the offender without conviction to be a reasonable possibility, the Court convicts and then receives the evidence. Sometimes it may adjourn the trial to another day for the evidence to be gathered. But, because conviction necessarily precedes sentence, there is always at the least a moment of time between conviction and the pronouncing of sentence when the convicted offenders "subject to be sentenced" for the offence of which he has been convicted. The length of the interval may be of significance for the purposes of Article 31 of the Constitution, which, as I have noted already, is concerned with a continuing status. If a candidate for election to Parliament is convicted two days before polling day of an offence punishable by imprisonment for one year and is sentenced on that day to pay a fine, then, if he pays the fine in full on that day, he is not "under sentence" or "subject to be sentenced" on polling day and is not is qualified for election. If, however, instead of the entente being imposed on the day of conviction, two days before polling day, the trial is adjourned for a week for the Court to receive evidence before deciding upon sentence, the candidate on polling day is "subject be sentenced" for the offence of which he has been convicted and is disqualified for election. It makes no difference that eventually he is not sent to prison but only fined or that he pays the fine on the day it is imposed. It is his status on polling day as a person "subject to be sentenced" for an offence of the type referred to in Article 31(c) which disqualifies him for election. However, for the purposes of Article 32, unlike Article 31, the length of the interval between conviction and sentence is not of any material significance. Under that Article a member vacates his seat upon becoming disqualified under Article 31 for election. It is the first point in time at which he becomes disqualified which is the moment when the vacation of the seat occurs. That is the instant after the conviction has been pronounced, the point in time when the offender becomes "subject to be sentenced" for the offence. It is immaterial what sentence is passed eventually; the seat has been vacated already.

Finally, the phrase "an offence punishable according to law ... by imprisonment for one year or longer" has to be considered. To construe that phrase as meaning "an offence for which a sentence of imprisonment for one year or longer has been imposed" would be to strain the meaning of the word "punishable". Moreover, the presence in Article 31(c) of the phrase "or is subject to be sentenced" makes that construction impossible. Until a sentence is pronounced, it is not possible for anyone other than the Court to know whether it will impose a fine or imprisonment and, if it imposes imprisonment, how long the term is to be. If the words "an offence punishable by imprisonment for one year" were given the construction to which I have just referred, it could never be known whether a person was "subject to be sentenced" for such an offence and the inclusion of the provision for disqualification of persons "subject to be sentenced" would be purposeless. The phrase must, therefore, mean "an offence in respect of which the maximum punishment which a Court can lawfully impose on a convicted offender is imprisonment for one year or longer".

I now formally state the opinion of this Court as to questions (a), (b), (c), (d) and (e) referred to it under Article 55 of the Constitution. Before doing so I must point out that Article 31 does not relate specifically to persons who are members of Parliament but relates to all persons who may aspire to be elected to be members. In the opinion of this Court the correct answers to questions (a), (c) and (d) are -

Question (a): (subject to the words "a person" being substituted for the words "a Member of Parliament" in the question) Yes.

Question (c): A person is subject to be sentenced for an offence from the time when the Court pronounces his conviction of that offence until the time when the Court pronounces its sentence on him for that offence. In this answer the expression "sentence" is to be taken as including any final order relating to the offender which the Court is empowered to make but does not include an order which does not dispose finally of the case (e.g. an order remanding the offender in custody until a date to which the trial has been adjourned).

Question (d): Yes.

As questions (b) and (e) are alternative to questions (a) and (d) respectively, they do not require to be answered:

I turn now to consider the second group of questions to which I referred earlier, that is to say those concerned with the effect of a successful appeal by a member of Parliament against a disqualifying conviction and with the effect, before the appeal has been decided, of the possibility of such a successful appeal. They are question 3 referred to this Court under Article 36 of the Constitution and question (g) referred to it under Article 55.

Before I consider them in detail I wish to deal with a possible argument that the vacation of a member's seat is, or should be, somehow put into abeyance by the commencement of an appeal, and that the chain of consequences flowing from the vacation is stopped at the point it has reached by that time. That is not possible in the absence of specific legislative provision for it. An example of such provision occurs in the laws of India. There section 7 of the Representation of the People Act 1951 provides for a member of Parliament to vacate his seat on the occurrence of any of a number of events, including conviction of certain offences; but section 8 of the Act prevents the vacation of office from taking effect until the expiration of a period of two months after the conviction or until the determination of any appeal commenced within that period, whichever date is the later. In Nauru there is no provision of that sort in, or authorised by, the Constitution. Under Article 32 the vacation of the member's seat occurs immediately he becomes disqualified for election, i.e. upon his conviction, and there is no provision for postponement of its taking effect.

Mr. Lawrie has submitted that, notwithstanding that the member has vacated his seat upon conviction, the quashing of the conviction renders it totally void ab initio so that the vacancy lapses and. he is restored automatically to his seat. Three possible theories of the effect of the quashing of a conviction, for the purposes of Article 32 of the Constitution, require to be considered. The first theory is that to which I have just referred, namely that the quashing of the conviction renders it totally void ab initio and nullifies the vacation of the seat and all the consequences of it. The second is that it annuls the conviction, and the effects of it, only from the time of the judgment in the appeal; in that event, nothing which has occurred before then in consequence of the conviction is annulled. Third, the quashing of a conviction may annul it ab initio for some purposes but not for others, so that some, but not all, of the things done, or which have happened, in consequence of it are annulled.

In support of the first theory is the moral argument that it is unjust for a man who is found to have been wrongly convicted to suffer any adverse consequences of the conviction. In the case of The Commissioners of Railways (N.S.W.) v. Cavanough [1935] HCA 45; (1935) 53 C.L.R. 220 the High Court of Australia had to decide the effect of the quashing of the conviction of a railway employee for the purposes of ascertaining his rights under a New South Wales statute. The statute provided that, if any person holding office under the Commissioners was convicted of a felony, he would automatically vacate his office. The Court held that the effect of an employee's conviction being quashed was that, subject to certain qualifications to which I shall refer when I consider the third theory, it was avoided ab initio, that the employee's right to continue to hold his office of employment was to be ascertained on the basis that the conviction had never existed and that he was to be deemed never to have vacated the office and to be entitled to his salary for the whole of the period between the conviction and the judgment in the appeal.

The second theory may be supported by an argument similar to one upon which, in part, the judgment of Winn J. in Hancock v. Prison Commissioners (1960) 1 Q.B. 117 at 125 is based, namely that, if the effect of quashing a conviction were to nullify all things done in consequence of the conviction and to deprive them of effect and legality, imprisonment served under a sentence imposed upon the conviction would become unlawful. If that were its effect, it would be unsafe to commit any convicted person to prison to serve a sentence of imprisonment until every possibility of his appealing successfully against the conviction had been exhausted. However, this argument cannot be extended to all consequences of a conviction, e.g. payment of a fine.

The third theory derives support from a very early English case, Dr. Drury's,Case [1572] EngR 109; (1608) 8 Co. Rep. 141b, which concerned not the quashing of a conviction but the reversal of an erroneous judgment in civil proceedings by a writ of error. It was held that collateral acts already done in consequence of the judgment were not affected by its reversal but that collateral acts which were still executory were barred. The Court in Cavanough's case acknowledged that acts done according to the exigency of a judicial order, were afterwards protected, that proceedings which, although based upon a judgment that was reversed, were brought to completion before its reversal were not avoided and that collateral acts which were still executory were barred but collateral acts already executed were not affected. Whether in any particular case an act is collateral may not be easy to decide. In Cavanough's case the automatic vacation of office upon conviction was not, by implication, held to be such an act; but possibly the filling of the vacancy by the appointment of another person to hold the office might have been.

The importance of Dr. Drury's case and its acceptance by the Court in Cavanough's case appears to me to be that recognition is given to the fact that the interests of other persons may on occasion have to be regarded as overriding those of the successful appellant whose conviction has been quashed. Mr. Lang has suggested that what is involved is a principle analogous to that applicable to determine in an appropriate case whether there can be restitutio in integrum. The principle to be applied here cannot be exactly similar to that principle but I would agree with Mr. Lang that an equitable principle of a somewhat similar nature must be applied to resolve, the competing interests of the person whose conviction has been quashed and the interests of innocent third parties who will be adversely affected if all the consequences of the conviction are avoided.

Where as the result of a conviction a member of Parliament has vacated his seat in accordance with Article 32 of the Constitution upon conviction and has subsequently had the conviction quashed on appeal, the situation is in some respects similar to that in Cavanough's case. But there are important differences. The Court in that case was concerned only with the personal rights of the employee and his employers, a kind of proprietary right. A member of Parliament, on the other hand, holds office as such for the purpose of representing his constituents. Although it s an office of profit, it is not employment in the usual sense of that term; he has no security of tenure and no right to any such security. He may be ousted from office in a general election, which may occur at any time. The holding of the office imposes an obligation to serve those represented and confers an opportunity to exercise political power rather than a proprietary right.

The vacation of a member's seat leaves his constituents not fully represented in Parliament. To minimise their consequent disadvantage the law requires that prompt steps be taken to fill the vacancy. Within fourteen days after the date on which the vacancy occurs the Speaker has to issue a writ for a by-election (Electoral Act 1965-1973, section 15(1)). The nomination day and the polling day must be fixed by the writ. If by the close of nominations there is only one candidate and he is properly nominated, he must immediately be declared to have been elected. If an election is necessary, the candidate receiving the highest number of votes has to be declared to be duly elected. The new member will then almost certainly take part in the proceedings of Parliament soon after he is returned or elected. His vote may be cast for a motion which is carried by a majority of one or on which the House may be evenly divided and which is decided by the Speaker's casting vote. That motion may be to pass a law; people in Nauru may then enter into transactions with one another on the basis of that law. Mr. Lawrie has referred to Article 38(2) of the Constitution which saves the proceedings of Parliament from being invalidated by the presence or participation of unauthorised persons. But, as Mr. Lang has pointed out, it does not render the vote of such an unauthorised person valid; nor does it make his presence effective as part of a quorum. If the effect of quashing the conviction of a member of Parliament were necessarily to require that his vacation of his seat was to be regarded as never having occurred, the election of the new member would in consequence have similarly to be regarded as never having taken place. All the Acts and resolution of Parliament dependant upon his vote or his presence would have to be held invalid. The consequences to the Republic, and to individual citizens who had arranged their affairs in conformity with any of those acts of Parliament, could well be drastic.

It may be suggested that such a situation is unlikely to arise in practice, because an appeal to the Supreme Court can be heard and determined before nomination day. But that depends on the expedition with which the appeal is commenced and prosecuted. In Mr. Harris’s case, for example, an extension of time to present his petition was obtained; the petition was presented thirty days after the conclusion of his case in the District Court, sixteen days after the Speaker issued his writ for a by-election and only ten days before the close of nominations. It has not yet been heard, and it will not be heard during the present sittings of this Court because his counsel is unable to appear and has applied for it to be taken out of the list. Moreover, the matter need not end with the appeal to the Supreme Court. The convicted member, if unsuccessful in that appeal, may seek and obtain the leave of the High Court of Australia to appeal to that Court. The length of time before that further appeal is decided will again depend to a considerable extent on the expedition with which the application is made and the appeal prosecuted. It is apparent, however, that there is a substantial chance that, before it is decided, the new member will have taken part in the proceedings of Parliament on a number of occasions.

I have no hesitation in coming to the conclusion that, once a new member has been elected to fill the seat vacated by a convicted member, the effect of the quashing of the conviction cannot be to avoid the vacation of the seat and the consequent election of the new member. But what of the case where the conviction is quashed before the new member has been elected? In that case the validity of the proceedings of Parliament have not been placed in doubt; but other considerations arise. If the avoidance of the vacation of a member's seat upon his conviction were to depend upon whether a new member had been elected or not before any appeal was heard and determined, opportunity would be afforded for those in a position to manipulate events to do so. Even when there was no such manipulation in fact accusations of it could nonetheless be made. The Speaker might be accused by the convicted member of unduly expediting the holding of the by-election and, at the same time, by the candidates for election of unduly delaying it. An officer of the Courts might be accused of unduly facilitating the early hearing of the appeal or of delaying it. Such accusations might be unfounded, but they would be very difficult to refute and could cause great harm to the Republic by impairing public confidence in the office of Speaker or in the impartiality of the Courts. I have no doubt that the interests of the community as a whole must in this case prevail over those of the individual member of Parliament. In coming to that conclusion I have taken particularly into account the peculiar nature of the office of member of Parliament to which I have referred previously, which distinguishes it from a mere office of employment.

One matter remains to be considered before a decision can be given in respect of the questions referred to this Court under Article 36 of the Constitution. It has not been raised by Mr. Lawrie but I consider, nevertheless, that it should be dealt with. It concerns the nature of the offences of which Mr. Harris was convicted, that is to say, whether they were "offences punishable according to law by imprisonment for one year or longer". Both were offences of common assault. They were charged as offences against section 335 of the Criminal Code of Queensland (in its application to Nauru). Section 335 provides that a person who is guilty of unlawfully assaulting another person "is liable, if no greater punishment is provided, to imprisonment with hard labour for one year". Under section 335, therefore, common assault is an offence punishable by imprisonment for one year. However, in Queensland section 335 is applicable only to trial of the offence on indictment. The Criminal Code contains other provisions relating to the summary trial of offences of common assault by two justices (sections 341 and 343 in Chapter XXXI of Part II). Where the offence is so tried, the maximum sentence which may be imposed for any one offence is a fine of $100 or imprisonment with hard labour for two months. Chapter XXXI is entitled "Assaults Punishable on Summary Conviction". It is necessary, therefore, to consider whether its provisions, rather than those of section 335, apply to the offence of common assault when tried by the District Court.

In section 2 of the Criminal Procedure Act 1972 "summary trial" is defined as a trial held by the District Court under Part VI of that Act. The trial of Mr. Harris was held by the District Court under that Part. However, a comprehensive examination of the provisions of Chapter XXXI of the Criminal Code makes it clear that its purpose in Queensland is to give jurisdiction to justices of the peace to try offences of common assault. Section 3 of the Code divides offences into crimes, misdemeanours and simple offences; it provides for trial of crimes and misdemeanours to be by indictment, unless express provision to the contrary made in respect of any particular crime of [sic] misdemeanour, and for simple offences to be summarily tried by two justices. Thus summary trial of any crime or misdemeanour is possible in Queensland only if it is expressly provided for; otherwise the magistrates' courts have no jurisdiction to try it. The purpose of sections 341 and 343 is to give such jurisdiction in respect of the misdemeanour of common assault. At the same time provision is included to limit the sentence which can be imposed when the offence is tried by two justices.

The jurisdictional scheme in Nauru is entirely different from that in Queensland. By virtue of section 4 of the Criminal Procedure Act 1972 "any offence under the Criminal Code may be tried by the District Court if it is punishable by imprisonment for not more than ten years". So, notwithstanding that all trials by the District Court, are summary trials, that Court has jurisdiction to try all crimes and misdemeanours under the Criminal Code, except any punishable with imprisonment for more than ten years. The Criminal Code is adopted by section 12 of the Laws Repeal and Adopting Act 1922-1967 as part of the laws of Nauru only to the extent that its provisions are not repugnant to or inconsistent with those of any statute of Nauru. Thus the provisions of the Criminal Procedure Act 1972 prevail over those of the Criminal Code. The District Court has jurisdiction to try the misdemeanour of common assault without need to resort to Chapter XXXI as the source of that jurisdiction. In the application of the Criminal Code to Nauru Chapter XXXI has no effect. Consequently the offence of common assault, when tried by the District Court, is an offence punishable according to law by imprisonment for one year. It is, therefore, such an offence as is referred to in Article 31(c) of the Constitution.

I now formally state the decision of this Court that the questions referred to it under Article 36 of the, Constitution are to be answered as follows:

Question 1: Yes.

Question 2: Immediately upon the convictions being pronounced by the District Court.

Question 3: No.

Also I formally state the opinion of this Court that questions (f), (g) and (h) referred to it under Article 55 of the Constitution are to be answered as follows:

Question (f): Yes.

Question (g): No.

Question (h)(i): Yes.

Question (h)(ii): Yes.

Question (h)(iii): Upon his being pardoned by the President or upon his sentence being set aside on appeal.