News: The High Court dismisses a runner-up Senator

This Wednesday at 10.05AM, Australians at last saw an end to the marriage law survey, the indirect product of the High Court’s 2013 decision declaring the ACT’s Marriage Equality Bill inoperative and the High Court’s September decision upholding the government’s instruction to the Australian Bureau of Statistics to perform the survey. Marriage equality is now exclusively a matter for the politicians Australians elected in 2016. But, as a decision from the High Court five hours later makes clear, the 2016 election is still ongoing and doesn’t look like ending any time soon. This time the High Court held that nominee Hollie Hughes was ineligible to be declared elected, because she took a position in the Administrative Appeals Tribunals (an ‘office of profit under the Crown’) during the 15 months that ineligible dual citizen Fiona Nash purported to take her spot in the Senate. This especially startling instance of the Court’s ‘brutal literalism‘ (when it comes to s44) will undoubtedly lead to more questioning of whether some of the people currently sitting in Parliament were actually elected.

The requirements of s44 are challenging, not just to MPs and nominees, but also to the media, which faces the difficulty of reporting on its content and the various processes for testing it. On Wednesday, the media were not assisted by the Chief Justice, who issued the following cryptic pronouncement at the conclusion of the hearing:

The Court is unanimously of the view that the summons should be dismissed. The Court will publish its reasons at a later date. The Commonwealth does not dispute Ms Hughes’ application for costs. The orders of the Court therefore are:

  1. The summons filed on 7 November 2017 for a declaration that Ms Holly Hughes is duly elected as a senator for the State of New South Wales for the place for which Ms Fiona Nash was returned is dismissed.
  2. The Commonwealth is to pay Ms Hughes’ costs.

Often, the word ‘dismissed’ signals that the High Court has rejected a constitutional challenge. But this time, what the Court ‘dismissed’ was a summons by federal Attorney-General George Brandis (a party to the Senate’s reference on Fiona Nash) to Hollie Hughes, made after a recount by the Australian Electoral Commission named her as the person the people of NSW chose next after Nash. Brandis issued the summons so that the Court could declare that she was elected in Nash’s place, but Hughes’s own s44 problem intervened. The Court accordingly dismissed the summons Brandis issued to Hughes, which will presumably prompt a further recount by the AEC, a further summons from Brandis to the next in line and (perhaps) an eventual declaration by the Court that the people of NSW successfully elected someone.

While the Statistician, David Kalisch, kept Australians waiting a few unnecessary minutes on Wednesday for the result of the poll (as he explained his view that it was reliable), the media had no difficulty reporting the correct outcome once it was announced. The same was not true, though, for the outcome of Hughes’s brief bid to be a Senator.  Both the The Guardian and The Australian initially reported that the Court had held that Hughes was eligible, while the ABC correctly said that she wasn’t. The confusion was cleared up fairly quickly, presumably soon enough to avoid consequences for anyone’s health, the stock market or internal machinations in the Liberal party room. But it was unnecessary. It would have been straightforward for Kiefel CJ to include a single plain English sentence to the effect that Hollie Hughes was ineligible to be a Senator, much as she reportedly did when announcing the fates of the Citizenship 7. Whatever the place for ‘brutal literalism’ in the Court’s application of s44, there is no need to be confined to literalism when the Court announces its orders in cases of significant public interest.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

21 thoughts on “News: The High Court dismisses a runner-up Senator

  1. The transcript is on Austlii.It reveals this exchange between the amicus(Geoffrey Kennett SC) and the Court where Kennett is referring to the decision in In Re Wood:
    “That may be a conclusion expressed at a statutory level but it is nevertheless one which we say is apt to describe the circumstance for present purposes. With an unqualified candidate – i.e., Ms Nash – having been returned as elected, the Senate election is not complete and thus the process of constitutionally required choice, we would say, is not complete. There are similar observations in a similar vein on page 168. The penultimate paragraph states:

    The place of Senator Wood has not become vacant by reason of any supervening event. Rather, the place has not been filled in the eye of the law for he lacked the qualifications –

    GAGELER J: It is not just statutory, it is also for the purposes of section 15 of the Constitution – there is no casual vacancy.

    MR KENNETT: Yes, that is so. In Culleton – your Honours have been to paragraph [13]. This is Re Culleton (No 2) 91 ALJR. Paragraph [13] describes the holding in Sykes and says that the words:

    refer to the process of being chosen: a process which operates from the date of nominations, as that is the date on which the electoral process begins, until the return of the writs for the election, as that is the time at which the electoral process is complete.”
    We will wait for the reasons,but I suspect the arguments of the Solicitor General and counsel for Holly Hughes died at that point.
    Incidentally Kennett has now vanquished the SG twice in this controversy as the SG argued that Joyce,Nash & Waters were not disqualified.

    • I do think that Culleton was very much the start of the current mess. And, yes, a rough couple of weeks for the SG, though it may well have been similarly rough for anyone arguing for a narrow reading of s44. We’ll see if the SG does any better when he argues that Keay et al are ineligible.

        • Hmmm… The SG — and lets be clear, the SG acting on the AG’s instructions — conceded that Canavan was an Italian citizen. So I wouldn’t rush to call that one a win.

          • Yeah, that’s a fair point. Although now I see that Canavan barely fought this point too (just one para of his submissions, focussing on the retrospectivity point, not the winning application point.) What a strange case.

          • See Canavan Transcript, Day 1, line 3658!

            “GAGELER J: Mr Bennett, I am sorry, is there any hint of this in your written submissions?”

            In short, the point emerged in oral argument as the centrepiece of Canavan’s case.

            At line 3714 Kiefel CJ said:

            “KIEFEL CJ: Mr Bennett, there was no request to cross‑examine the experts, was there?”

            To which one might have said, “By whom, in the absence of a contradictor?”

  2. I’m not sure why it is thought that the Hughes case is an example of “brutal literalism”.

    The words in issue are “being chosen”, which are pretty unilluminating on any view. The argument had nothing to do with literal versus non-literal construction and everything to do with competing purposive constructions and “fit” with the scheme.

    As to competing purpose consider this: no-one elected ex-AAT member Hughes. When someone rids themselves of a s 44 disqualification, they might still be said to have the risk of conflict (e.g. a former Departmental employee resigning and then wanting to swap sides and become the scrutinizer of the government). Presenting him or herself for election is a good way of dissolving that potential conflict: the people choose them knowingly. That wouldn’t have happened with Hughes.

    As to “fit”, those who say that Hughes should have been allowed to sit need to have answers to these questions: (1) what if she hadn’t resigned? what is the basis on which the Court could decline to declare her elected? or would they have to, and she would be prevented from sitting, leaving s 20 to do the work of vacating her seat some time down the track. (2) if choice ends on polling day, can a successful candidate take up a job working for a Minister between polling day and 1 July next when they start their term as senator?

    Commentators have almost entirely overlooked the risks to responsible government involved in having members of the executive switching into Parliament, which is supposed to control the executive. Only an election can sanction that.

    • I think the SG’s answers to both those questions was ‘yes’. I’m not sure your arguments defeat the ‘literalism’ critique, though I guess you’d take issue with ‘brutal’ (though remember that s44 bars teachers as well as AAT members.) Possible risk to responsible government? It’s a pretty strange scam against democracy to bribe Senate runners-up with plum jobs in the hope that they’ll be s44’d into Parliament in order to gain the reward of their parliamentary support – remember, that there are no such constraints on doing the exact same thing via a casual vacancy, which is much easier for the government to arrange.

      • Well, there’s a question about casual vacancies. But they are chosen at least by an elected body, and by a State one at that.

        But the problem is nothing to do with the “strange scam”. It’s more direct: it would allow someone subordinate to a Minister to become the Minister’s boss without the people having a say in that. No need to impute a scheme by the government to bring the result about. The vice is in the result itself, however it comes about.

        • But absent the scam, what is the actual ‘vice’ in that result? One day Hughes is on the AAT, the next she’s in parliament, voting on the AAT. The electors/state parls didn’t approve that particular change. So what?

          • Well, first, it’s not so much “voting” that is the problem, as it is scrutinising the executive.

            And as to that, the AAT is admittedly a bit different because it’s not under a Minister.

            But take a departmental employee, a Secretary, or even a Ministerial Adviser (subject to whether they are “under the Crown” or Parliament).

            How can we expect someone who was answerable to the Minister to discharge with full vigour the constitutional responsibility to criticise the Minister, and shed light on his/her activities?

            At the least, why should we not have a say in deciding whether someone who has just resigned from the employ of the Minister is appropriate to become the boss.

            As for the AAT, the rule has to be the same for them as for all other executive officers. Plus, the amicus appears to have said in their written subs that Parliament can remove AAT members and Hughes would have been expected to exercise that responsibility over her former colleagues/senior colleagues.

  3. Having now seen the video of the hearing, it is clear that the orders were actually pronounced in open court. While the first statement that the summons was to be dismissed was ambiguous unless you knew whose summons it was, the actual order the immediately made it crystal clear.

    • Yes. But I don’t know about crystal clear, except to a lawyer familiar with the summons procedure. Again, there’s nothing wrong with Kiefel CJ simply saying: “The Court is unanimously of the view that Hollie Hughes is ineligible to be chosen as a Senator.”

  4. “Marriage equality is now exclusively a matter for the politicians…”

    A brave point to make – but possible true if the High Court rejects any challenges…

  5. Publishing decisions without simultaneously publishing reasons provides lots of opportunities to devise (quite possibly irrelevant) issues, scenarios and issues and inconsistencies.

    One example: If the Court reasons the election for a particular Senate place is not complete until the place is filled by a duly elected person, then, if section 13 of the Constitution were to be read literally as the Court appears capriciously to do, the unambiguous words “The election to fill vacant places shall be made within one year before the places are to become vacant” would mean that any regular Senate election would not have been constitutionally proper whenever a sitting member is found by the Court on reference from the Senate to have been incapable of election. What are the implications of an improper election? What is the remedy? Further, the words ” … the term of service of a senator shall be taken to begin on the first day of July following the day of his election …” would mean that in such a case, the term of the duly elected person does not commence until the next July if the day of election is actually the day the election is completed rathen than the day of the poll. (Section 374 (ii) of the CEA specifying an immediate uptake of a seat is inconsistent with this, and presumably invalid to the extent of inconsistency). One then has the unworkable situation of not all Senators elected at an election not having terms commencing in the same year.

    Of course one could take the view, contrary to the long history of the Court, that the Constitutional mention of a “day of election” implies a focus on one day, the day of the poll, notwitstanding that the electoral process runs for a longer time. Section 44 disqualifications arguably then relate only to that day and not to the entire period of the electoral process, not to date of nomination, issue or return of writs, or to completion.

    Once the Court has overlooked something in the Constitution or in subsidiary law, its commitment to stare decisis is bound to create for itself ever increasing difficulties in reconciling Court-made law and other law. Parliament by legislating will be able to get the Court out of some of these difficulties, but not those needing a Constitutional amendment. As a lay person, I would suggest at some point the Court does need to give a bit on its principle of stare decisis in the face of contrary statutory law.

  6. Oops! Mea culpa. Unlike the Court I am not reluctant to admit to and to correct my errors. On rereading my earlier comment, there are a few, at least three:
    1. Too many “issues” in para 1;
    2. “Notwithstanding” is misspelt in the penultimate para;
    and more significantly,
    3. In the opening sentence of para 2, I wrote, ” … if section 13 of the Constitution were to be read literally as the Court appears capriciously to do …” . This seems to imply I think the Court read section 13 in a literal way. I did not intend that meaning. What I actually meant to convey was my view that the Court treats law variously and not always with good reason, sometimes reading the wording of laws literally, other times creatively and beyond the wording, and at other times ignoring laws. It is not yet apparent to me that the Court paid any attention to section 13 (and it may have good reason not to have done so) in arriving at its decision re Ms Hughes.

    • And 4. an uninwanted double negative in the last sentence of 2nd para of my original comment. Delete the 2nd not.

      • A wee bit more pedantry (aka literalism?), Constitutional absurdity and perhaps legal nonsense, and getting further removed from Jeremy’s initiating opinion piece …

        Suppose (contrary to my earlier hypothetical conditional) that the High Court reveals in its judgment re the Holly Hughes summons that it has actually formed the view that a candidate who was not the one returned by the Electoral Commissioner as elected but who is later declared by the Court as duly elected is actually elected from the day of election, this being ruled a point in time (such as either the polling day or the day of return of the writ) before the date of the Court’s declaration.

        Recent examples of such Court-declared duly elected persons would include Fraser Anning, Jordan Steel-John and Andrew Bartlett.

        Because such MPs would have been ignorant of the fact that they were actually MPs from some earlier time (2016 in the mentioned cases) they would have been absent from Parliament since the commencement of their terms up until recently and they would have been absent without the permission of Parliament to be absent, so e considera le time. Then, with ignorance of facts not providing a valid defence for failure to do those things necessary to get and retain a seat in Parliament, under s38 of the Constitution, whi h deals with AWOLs,, their places in the Senate would have become vacant, to be filled under s15 as casual vacancies.

        Would Senate refer any question about the possibility of these vacancies to the CDR? I suggest it ought to and presumably would. Politically, it is hard to imagine One Nation not moving for a referral in Fraser Anning’s case. If Anning’s place were found to be vacant, One Nation would have the opportunity to put forward a name to the Qld Parliament as Anning’s replacement and they may put forward Malcolm Roberts’ name, particularly if he is not elected to Qld Parliament this weekend. While State MPs are unable to nominate and to be elected to Federal Parliament under ss 164 and 162 of the CEA, there seems to be nothing preventing their appointment to fill casual Senate vacancies.

        Senate will be welcoming back Ludlam, Waters and Roberts if they and their parties want them back. I don’t dare comment on the ongoing Nash.case.

        How might the potential for future rotating circuses under this hypothetical (or conditional) be dissipated? I suggest even more literalism is needed. I know it will be viewed as heresy in the context of Constitutional and other electoral law but I suggest s 353 (i) and 355 (e) of the CEA should be read literally and applied without the current Court-granted exemptions for an individual House of Parliament and for the CDR itself. The case for these exemptions is actually quite weak, even allowing for the Court’s own precedents on the topic. The effect of an exemption free reinterpretation would be that an election result is final after 40 days from the return of writs (or appointment.to a casual vacancy). Any person subsequently discovered as disqualified would be immediately removed as an MP because of their incapability of sitting, tbe vacancy then to be filled as casual vacancies. The outcome would be the same as that of the circus described above.

  7. Actually – and very pedantically, as befits any comment on these terrible s 44 cases – the Court has not yet held that Ms Hughes was ineligible. Their Hons’ order was that “The summons … for a declaration that Ms Holly Hughes is duly elected … is dismissed.” Ie, they refused to declare that she was elected, but did not actually declare that she was not elected (told you I was going to be pedantic!). Another directions hearing is set down for 2.15pm tomorrow (Daylight Shifted Time). It seems most likely that the direction will be that the AEC should do yet another count, ignoring the presence of both Nash and Hughes on the ballot paper – but who can be sure?

  8. And in today’s hearing , the S-G took it for granted that the Court had held, in the earlier hearing, that Hughes was ineligible one way or another – but observed that they had left it unclear whether she had been incapable of being ‘chosen’ or was simply incapable of ‘sitting’ after the choice had been completed. Which, as followers of this mess will realise, leaves it also unclear as to whether the vacancy should be filled by a recount or by a State Parliamentary vote under s 15! And Gageler J, sitting by himself, offered no hints as to what the judgment is likely to say. So the S-G asked for, and was granted, an order for a special (re)count, but he, and all of us, will then wait to see whether the Court’s reasons show that the victor in that recount should fill the place, or whether the recount was a waste of time and that the s 15 process will fill the vacancy. You couldn’t make this stuff up!

    • Are the orders that Justices make, such as those Gageler J made last Monday, publicly available or just to the parties?

      I’m just musing over the possible details of both the original special count order and those of the order made last Monday. The latter may not have been as simple as to ignore just Nash and Hughes.

      At para 138 of the joint judgment delivered on the 7 citizenship cases, their Honours said:

      “in each of those [4 Senate] cases, votes cast “above the line” in favour of the party that nominated the candidate should be counted in favour of the next candidate on that party’s list”.

      Reading this literally and presuming the Nationals and the Liberals separately nominated candidates but then all their endorsed candidates requested they all be grouped in a particular order, the Full Bench would have been saying that “above the line” Coalition votes distributed to Nash were to go to the next National Party candidate (Wang I think), not to the next (Hughes, a Liberal) in the Coalitoon group. Maybe the first special count failed to comply with this Full Bench statement about the special count. Hughes eligibility to be elected and/or to sit may not be the defining factor in the dismissal decision on the Hughes summons, despite the attention given to her eligibility at the Nov 15 hearing.

      Mere speculation on my part. We shall doubtlessly all learn shortly.

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