The case of Barnaby Joyce
The case of Barnaby Joyce, erstwhile Deputy Prime Minister of Australia, brings back memories of the 1982 Taupo election petition (Re Taupo Election Petition  2 NZLR 244), in which I was junior counsel for the petitioner, Jack Ridley.
Mr Ridley had been the sitting member for Taupo, but was defeated at the election. Prior to the election, he witnessed the signatures to three special vote declarations.
He did so on the basis that, as a member of Parliament, he was authorised to takes statutory declarations by the Oaths and Declarations Act 1957, and, as a person authorised to take statutory declarations, he was within the class of persons entitled to witness special vote declarations.
In deciding that the declarations were invalid, the High Court (Full Court) ruled that, once Parliament had been dissolved, Mr Ridley was not in fact or in law a member of Parliament. The returning officer was correct to disallow the votes.
Section 44 of the Australian Constitution provides that any person who is under any acknowledgment 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 a citizen of a foreign power, shall be incapable of being chosen or of sitting as a member of the House of Representatives.
As is well known, Barnaby Joyce had the misfortune to be a New Zealand citizen when he was elected. On 27 October 2017, the High Court of Australia ruled that section 44 meant that he was incapable of being chosen or of sitting as a member of the House. The High Court declared his seat to be vacant. It directed that a by-election take place to fill the vacancy.
Section 64 of the Constitution provides that no Minister of State shall hold office for a longer period than three months, unless he is or becomes a senator or a member of the House of Representatives. After being elected to the House of Representatives in 2013, Mr Joyce became Minister of Agriculture, a portfolio which was subsequently expanded to include Water Resources.
If the correct interpretation of the High Court’s decision is that he was never a member of the House of Representatives, he ceased to be eligible to be a Minister of State at the expiration of three months from his appointment.
Questions have already been raised in Australia concerning the validity of acts taken by Mr Joyce in his ministerial capacities. There are parallels with Mr Ridley’s position.
In the Taupo Election Petition case, counsel acknowledged that Mr Ridley had indeed ceased to be a member of Parliament, but argued that the declarations should not be held invalid. It is worth setting out a portion of the Court’s decision (at 252) in full:
“Mr Southwick on behalf of the petitioner addressed to the Court an argument that even though the petitioner had ceased to be a member of Parliament de jure by reason of the dissolution of Parliament by His Excellency the Governor-General – see ss. 12 and 13 of the Electoral Act 1956 – yet he was nevertheless in witnessing the three declarations acting as a member of Parliament de facto and his actions in doing so were valid. See Re Aldridge (1893) 15 NZLR 361; Adams v Adams  P 188; R v Cawthorne (1977) 17 SASR 321. All these decisions stemmed from the early English case of R v Corporation of Bedford Level (1805) 6 East 356 where Lord Ellenborough adopted the definition of an officer de facto given by Lord Holt in Parker v Kett (1701) 1 Ld Raym 658, 660 to the effect that a steward de facto is –
‘… no other, than he who has the reputation of being steward, and yet is not a good steward in point of law.’
In R v Cawthorne, Bray CJ adopted the more modern definition of an officer de facto as given by Butler CJ in Adams v Adams at p 213:
‘An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised.’
(Here follow four separate circumstances only the first of which Mr Southwick relied upon.)
‘First, without a known appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.’
“Such, Mr Southwick submitted, was the position of the petitioner who had been the member of Parliament for Taupo and who by reason of his being the sitting member had the reputation of being a member of Parliament so as to cause people without inquiry to submit to his action in witnessing the declarations.
“Interesting as Mr Southwick’s submissions were, we find ourselves unable to accept them for two reasons. First, the right of a person to take a declaration in New Zealand is determined by statute – the Oaths and Declarations Act 1957. If a person does not qualify under that Act, he is not so authorised and whether he purports to be qualified de facto is of no account. Second, we do not consider that the authorities referred to by Mr Southwick apply to the present case. They deal with persons who were intended to be appointed to some office but whose appointments for one reason or another were defective in law. That is not the case here. Mr Ridley was effectively in law a member of Parliament prior to dissolution but his office was terminated when Parliament was dissolved. The Act permits declarations to be taken by members of Parliament - members both in fact and in law. The petitioner however was, in our view, neither a member of Parliament in fact nor in law once Parliament had been dissolved. The petitioner was not entitled to witness the three special vote declarations. They were not, therefore, properly witnessed by an authorised person in accordance with reg 18(2).”
Even after 35 years, the Court’s reasoning still seems to be particularly niggardly and pedantic.
The Court’s first reason is that if a person does not qualify under the Oaths and Declarations Act 1957, “he is not so authorised”. This begs the question. The very purpose of the de facto authority doctrine is to ameliorate the impact on third parties of the acts of a person purporting to act in an official capacity, who is not in law authorised but whose authority is relied upon. The bald statement that “whether he purports to be qualified de facto is of no account” does not explain why it is of no account.
The second reason is that the authorities do not “apply to the present case”, because they “deal with persons who were intended to be appointed to some office but whose appointments for one reason or another were defective in law”. If the principles outlined in the quotations from Parker v Kett and Cawthorne are considered, they quite clearly do apply to the voters who relied on Mr Ridley’s apparent authority, notwithstanding that the cases may be distinguishable on the facts.
Just a couple of years earlier, in Wybrow v Chief Electoral Officer  1 NZLR 147, the Court of Appeal had been required to consider whether ballot papers marked in an irregular way should be counted if the voter’s intention was clear. In determining that they should be, the Court of Appeal observed (at 154):
“Thirdly, the ultimate object of the democratic system embodied in the Electoral Act is that elections shall be determined by the wishes of voters recorded at secret ballots. Uniformity in voting methods is not an end in itself. If a voter fails to understand the instructions but does succeed in making his or her intention clear, we would be very slow to attribute to Parliament the pedantry of insisting on rejection of the vote. Of course the test which Parliament has chosen to adopt for the counting of votes does leave room for argument about whether the intention has been clearly expressed. To that extent there is uncertainty, perhaps more uncertainty than if Parliament had laid down some more rigid test; but the Act contains the safeguards that the voter’s intention has to be clear to the Returning Officer and that his decision may be reviewed by a District Court Judge on a recount and a Court of three High Court Judges on an election petition.”
Had the High Court in its unappealable election petition decision been imbued with the same liberal spirit as the Court of Appeal, it may not have gone looking for reasons to distinguish the decisions to disallow the votes and disenfranchise voters who had done nothing wrong.
Back to Barnaby Joyce, should his official actions be challenged, their validity will be a matter of Australian law. It may weigh heavily that it is a provision of the Constitution which was infringed by his staying on as a Minister after the three months had expired.
On the other hand, like Mr Ridley, he was unauthorised but still appeared to be authorised, and third parties relied on his apparent authority. So the de facto authority doctrine might save the actions from validity.