Thursday morning’s directions hearing relating to the possible of ineligibility of sitting federal MPs due to their possible dual citizenship began with a series of ‘determinations‘ by the Kiefel CJ under this section of the Commonwealth Electoral Act:
The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.
Most actions before the High Court have two clear parties, because one of the parties starts the action and names their opponent. By contrast, the present five (and counting) applications are just ‘questions’ referred to the Court of Disputed Returns by parliament, and the Court needs to work out who (if anyone) will actually be making arguments. Hence, the Court itself advertised the references on its webpage and called for submissions from prospective parties. Kiefel CJ then determined who were the lucky (or unlucky) parties for each reference, for example:
In relation to the reference concerning Mr Ludlam, the orders of the Court are: The following persons shall be allowed to be heard on the hearing of the reference and shall be deemed to be the parties to the reference pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth): (i) Scott Ludlam; and (ii) the Attorney-General of the Commonwealth. Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be heard by the Court. The submissions of Joe Bloggs, Deearne Gould, Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be received by the Court and will not be taken into account on the hearing of the reference.
Senator Scott Ludlam was the first of the five MPs whose dual citizenship became an issue. He has since resigned and, according to the Commonwealth Solicitor-General, isn’t going to argue that he was ever eligible to be a Senator. However, Kiefel CJ said that she wasn’t willing to resolve his position separately from the rest, so he became a (unwilling?) party, as did the Commonwealth Attorney-General (who said he won’t necessarily be arguing either way on Ludlam’s eligibility.) But Kiefel CJ rejected nearly all the remaining hopefuls, including barrister John Cameron (who revealed Ludlam’s dual citizenship) and the ubiquitous ‘Joe Bloggs’ (who made submissions on all five candidates.) The Chief Justice’s detailed reasons for these determinations (if any) have not yet been published.
The remainder of Thursday’s hearing was devoted primarily to setting a date for the hearings, although that was quite complex. While the Attorney-General pressed hard for a hearing in mid-September, proposing a very hurried timeline, Kiefel CJ’s main concern was that all five matters (and the two pending referrals of Senators Nash and Xenaphon) be heard together. A testing of the various waters revealed that, while the Ministers’ and Greens MPs’ cases could be ready quickly, including by dealing with the main factual issues by affidavit, Senators Canavan and Roberts were far from confident they could comply with a speedy timeline, given the many factual, constitutional and even foreign issues (including, notably, the validity of a retrospective 1983 citizenship law under Italy’s constitution) they would have to sort through. As well, Kiefel CJ raised the difficulty of accomodating such a large proceeding outside of the Court’s Canberra premises, which remain subject to renovations until October. David Bennett noted that several High Court judges had commitments at the International Bar Association conference in Sydney in the second week of October, but Kiefel CJ bluntly (and appropriately) said ‘I am sure that they would break them.’ In the end, the Solicitor-General revealed that he had an alternative timeline for a mid-October hearing in his back pocket:
HER HONOUR: So you had an alternative scenario all the time?
MR DONAGHUE: Yes, well, your Honour, there is a level of pessimism that runs – – –
HER HONOUR: It is just your high level of preparedness. I understand that, Mr Solicitor.
After everyone agreed that the hearings would likely take three days, they were set down for October 10, 11 and 12 (the three middle days of the IBA conference.)
The other major issue for the directions hearing was the Court’s concern that the main disputes in the case have a ‘contradictor’ (i.e. someone opposing the position of the other parties.) In the case of lower house MP Barnaby Joyce, a ready contradictor was available in Tony Windsor, the former MP and unsuccessful candidate for Joyce’s seat, who was the only non-MP to gain a place at the table. (Kiefel CJ archly noted to his counsel, Ron Merkel, that Windsor’s application arrived just 15 minutes before the cut-off time.) Merkel revealed that he may dispute whether or not Joyce should have realised his potential NZ citizenship, given such matters as the state of international law, the AEC’s advice to nominees and his potential answers in cross-examination. The Solicitor-General said that the Commonwealth would fund a senior counsel contradictor for the remaining matters, which he hoped would largely come to down to the question of whether ignorance was an excuse under s44. However, it is likely that Senator Canavan’s and Roberts’s applications will be more complex than that, raising issues of whether s44 extends to citizenship by descent and the complex timeline of Roberts’s attempted renunciation. In passing, Kiefel CJ raised an interesting question of her own:
HER HONOUR: Will it be necessary to put on further evidence in relation to the relief that might be granted if any of the persons the subjects of references are found to be disqualified, because the orders that would be made would themselves be a matter of some urgency, would they not, in that event.
MR DONAGHUE: Yes, well that is so, and particularly in – well, in the context of the four Senators, the Court would be in fairly familiar territory in relation to Re Culleton and Re Day and, in our submission, it would be clear that a special count should be ordered. As it happens, three of those Senators are from Queensland, one from Western Australia; the one from Western Australia is Mr Ludlam and so it may be that if the Court were to reach a clear view in relation to him, that could be separately moved quickly and the WA Senate position could be resolved.
HER HONOUR: But the other factual difference here is that some Senators and certainly a member of the House of Representatives have been there for some time. We are not in a circumstance where we are close to an election having been held.
MR DONAGHUE: No, we are not.
HER HONOUR: So, that needs to be given some thought, I would think.
This exchange suggests the fascinating possibility that some or all of the vacancies (if any) may not be filled by a recount (as widely expected) but by some other as yet unspecified means. For one of many discussions of the merits of s44, see here.
Great summary, Jeremy. Thank you.
The case of Ms Waters has the potential to be very peculiar. The S-G was a little equivocal but he did indicate that the A-G’s position was to be that former Senator Waters was in the same position as Senator Canavan and Mr Joyce, namely, not ineligible under s. 44 by reason of a lack of knowledge that she was a Canadian citizen.
Walters QC, for Ms Waters, did not (unlike the other counsel) indicate what argument would be run on behalf of Ms Waters but if she maintains her position that she was ineligible, then she will be in the peculiar position of arguing for her own ineligibility when the Commonwealth is arguing that she was eligible and therefore never needed to resign.
In the debate over whether there ought to be a contradictor on this legal issue, and whether Mr Windsor would be sufficient as a contradictor on this point, it seemed to me that it was overlooked that, peculiarly, Ms Waters may be in the position of a contradictor.
It is going to be a fascinating set of cases to follow. I look forward to your blog’s coverage.
As will many of us!
It does seem strange that a foreign power can ‘create’ an allegiance – often retrospectively – for an Australian citizen by virtue of their parents and not their own birthplace.
Surely if we can redefine issues under s51, then we can also get around s128 by the HCA saying parliament can get around it passing an act that automatically removed any allegiances real or prospective!?
Some proper judicial activism and living Constitution thinking is required here …
Time for some
Based on the directions hearing, it does not seem that any party will be arguing that Sykes v Cleary was wrong to hold that citizenship status is determined by the domestic law of the foreign country of which citizen is alleged.
That comes with the caveat that Senator Roberts’ counsel did not reveal his argument and, given Senator Roberts is the one that appears most likely to fall foul of a strict application of Sykes v Cleary, it is possible he may argue make that argument.
The other parties appear to be focusing on carving out a sort of ‘exception’ the Sykes v Cleary based upon the knowledge of the person about their citizenship status.
And it is confirmed: former Senator Waters will argue for her own ineligibility in opposition to the Attorney-General: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2017/182.html
Yes, I’d noticed that Jason. I presume that like a good kamikaze pilot, she is hoping that she’ll take out more than one of the enemy while sacrificing herself. Next time I bump into her, I’ll address her as Kamikaze Waters!
And of course if Waters was ineligible, her position will be filled by recount, whereas if she was eligible all the time (and resigned unnecessarily!) it will be a s 15 vacancy. If the former, the no 2 candidate, who would almost certainly be elected, is Andrew Bartlett and some narks have suggested that as a part-time ANU staffer he was an “officer of the Crown” and therefore also ineligible. Quite wrong in my opinion (compare the ANU Act with the one in Townsville Hospitals Board) but presumably some Greens-hater will raise it. But nobody foreshadowed that issue, though Bartlett was there watching the hearing. I foresee further attempts to intervene, fuirther directions hearings and further filings of arguments. Thank you, Founding Fathers, for a real mess!
If Ms Waters’ position is a casual vacancy, then it will be filled by the Queensland Parliament based upon the name put forward by the Greens in Queensland. Conceivably, Ms Waters could fill her own vacancy.
How can New Zealand be a “foreign power” as its defined as a state within the meaning of section 6. Whether interpreting statutes by references to ambulatory context, the concept of “always speaking” , or with deference to original intent , interpretations cant become frolics. Australian law gives NZ citizens special rights and privileges and, under pressure we exerted, NZ law provides ALL Australians with ” the rights or privileges of a subject or citizen” . So Sue v Hill may or may not apply , even if its not facially challenged, to Barnaby Joyce and Scott Ludlum. The Constitution originally didn’t give aboriginals the vote , either, because it was as much a political compromise for togetherness as it was a rational legal blue print. Nor did it adopt the American concept of being native born. Dual citizenship has long been a fact of life in countries with waves of immigrants. Its about time the High Court overturned Sue v Hill, and recognized that Constitutional Laws have constitutional flaws