News: State of play in the Court of Disputed Returns

The High Court entered its summer holiday having fully resolved nine matters in the Court of Disputed Returns concerning the 2016 federal election in four full court judgments, one each concerning one of the five disqualifications for federal MPs set out in s44 of the Constitution:

Any person who:

(i) 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; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Re Canavan resolved seven challenges under ground (i) (dual citizenship), Re Culleton No 2 a challenge under ground (ii) (criminality), Re Nash No 2 a follow-up challenge to one of the successors of one of the Citizenship 7 under ground (iv) (office of profit under the Crown) and Re Day No 2, a challenge under ground (v) (pecuniary interest.) (Ground (iii) on bankruptcy has only been considered once by the High Court, three decades ago.)

However, the Court began this year with six more election challenges on its books. While no major judgments have since been published, there has been a lot of activity and plenty of diversions in these matters in recent weeks. So, where are they now?

  • David Feeney is challenged under ground (i) (dual citizenship.) He initially disputed the challenge, arguing that he renounced his British citizenship a decade ago. If the challenge had gone ahead, it would have raised very interesting questions of how to resolve such disputes absent official documentary evidence. However, Feeney has now resigned from his seat and announced that he would not recontest it, presumably rendering the court dispute  moot because there will have to be a by-election regardless. While the by-election is going ahead, there are no reports to date of any formal order by the High Court dealing further with the referral.
  • Katy Gallagher is challenged under ground (i) (dual citizenship.) She says she was eligible to be elected in 2016, because she either renounced British citizenship by then or at least fell within the ‘reasonable steps’ test that the High Court has written into s44. As noted here, the parties’ arguments turn in part on expert evidence about UK citizenship law. On Monday, Kiefel CJ referred a preliminary matter about that evidence – whether those experts are only allowed to opine on the content of UK citizenship law or are also permitted to opine on how it would likely be applied in a UK court (for example, if Gallagher had sought to order the UK authorities to renounce her citizenship speedily) – to the Full Court for a hearing in March. Presumably, once that dispute is resolved, the experts will testify and then there’ll be a further hearing to determine the validity of Gallagher’s election. Any resolution seems to be several months away.
  • David Gillespie is challenged under ground (v) (pecuniary interest), but the Full Court is currently mulling over a preliminary matter. Unlike the other fourteen challenges to MPs’ elections  in the 2016 term (which were referred to the Court by a house of Parliament), this challenge is a private action under the federal ‘common informer’ statute. Late last year, the High Court heard arguments on two general issues about such actions: whether the Court can order the production of documents in  and whether the Court can rule on the validity of an election. The Court’s decision in those issues has been reserved for two months, and presumably will be published in March. If (and only if) the Court rules that it can determine the validity of an election (and the action continues), then the Court will have to hold a further hearing (presumably before a full court in April) on whether Gillespie’s ownership of a shopping centre with a sub-lease to Australia Post breaches s44(v).
  • Skye Kakoschke-Moore is challenged under ground (i) (dual citizenship.) While that challenge was uncontested, Kakoschke-Moore raised complications about how her successor should be determined: she had speedily rid herself of her British citizenship (and was now eligible to be elected ) and Tim Storer (the likely winner of any recount that excluded her) was no longer in the party he was listed in on the Senate ballot. Justice Nettle reluctantly referred these questions to the full court, which yesterday morning speedily answered them-  Kakoschke-Moore is still excluded from any recount, while Tim Storer is not – and Nettle J immediately ordered a recount in those terms. The matter may not be over, however, as the High Court itself has flagged a novel argument that a recount that replaced a Nick Xenophon Team member with an independent may ‘distort the true intentions of voters’ in South Australia (presumably those who voted ‘above the line’ for NXT.)
  • Jacquie Lambie is challenged under ground (i) (dual citizenship.) While that challenge was straightforward, the Court hit a snag in endorsing the result of the recount, because the recount threw up the name of Steve Martin, who was (and remained) Mayor of Devonport since the election. After Martin’s eligibility was challenged by another Tasmanian Senate candidate, the Full Court considered whether Martin was disqualified under ground (iv) (office for profit under the Crown.) At the end of a hearing held last Monday, the Court unanimously dismissed the challenge (with reasons to follow.) Last Friday, Nettle J declared Martin elected to the Senate (dismissing the relevance of media reports that Martin may have since been expelled from the Jacquie Lambie Network.)
  • Stephen Parry is challenged under ground (i) (dual citizenship). While that challenge was straightforward, Nettle J hit a snag when ordering a recount, because Parry was a Tasmanian Senator and there was a slim possibility that the result of any recount that excluded him could be affected by whether or not Steve Martin, also on the Tasmanian ballot, was on the recount as well. While this possibility could have been tested immediately by ordering various alternative recounts and comparing the results, the Australian Electoral Commission baulked, saying that ‘hypothetical’ recounts were contrary to its statutory charter. Justice Nettle asked the parties to consider finding someone else to do the recount, but the issue evaporated when Martin’s status was resolved last week. The resulting recount gave Parry’s seat to Richard Colbeck, and Nettle J declared him elected last Friday.

To sum up, three of the six cases are over: one (Feeney) is moot, another (Parry) is decided and a third (Lambie) is decided (but with reasons to come. There is also a possibility that the issue of whether Martin should get a three-year or six-year term will return to the Court at some stage.)  Of the other three, one (Kakoschke-Moore) is almost over (but with reasons to come) while two more (Gallagher and Gillespie) are bogged down in preliminaries.

I’ve previously noted Kiefel CJ’s possible frustration with these s44 matters. There have been two further signs of the Court’s frustration since then. Last Friday, Nettle J, when declaring Steve Martin’s elected, explained his refusal to delay that order because of Martin’s possible change of party membership using strong words:

The uncertainty caused by Ms Lambie submitting herself for election on 2 July 2016, when she was incapable of being elected, has gone on for too long. There must be an end to uncertainty caused by persons putting themselves forward for election when they are incapable of being elected and a return to regularity and order.

Yesterday morning, the Full Court’s dismissal of Kakoschke-Moore’s arguments were accompanied by an unusual lack of words. After talking appearances, Kiefel CJ commenced the hearing with ‘Yes, Mr Jackson’, a reference to David Jackson QC, counsel for Kakoschke-Moore. Neither she nor any other judge spoke for the next hour, while Jackson spoke uninterrupted. While this can be a good sign – as judges will usually identify arguments that don’t convince them –  it wasn’t in this case. The instant he finished, the Court adjourned for four minutes and then dismissed Kakoschke-Moore’s arguments, without hearing from the other parties to the referral. The silence (video here) could be interpreted as a message about the weakness of Jackson’s points. We may (or may not) learn more when the Court issues its reasons.

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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.

11 thoughts on “News: State of play in the Court of Disputed Returns

  1. The argument in Kakoschke-Moore was preposterous. There’s no law preventing people from leaving the party which they were in when they were elected; whatever the ethics of it, it is an accepted part of Australian politics and not contrary to law. I was surprised they ran it and not surprised the Court has dismissed it as swiftly as they could within the bounds of propriety.

    The Gallagher case is the key one, the issue the Court should have but didn’t resolve (or at least issue strong dicta on) through the vehicle of the Re Canavan judgments, as it will be relevant to politicians of both parties who have not yet been referred. That’s the one they should expedite to give certainty to this whole mess.

  2. I agree the SKM argument was a non-starter, but not because of Australian party political norms, but rather because the High Court has always seen its disputed returns role as about legal compliance and technical orders, not democracy. It’s possible to imagine an alternative reality where the Court gave primacy to what voters’ wanted (e.g. voting for a party, not at all interested in disqualifications) and did what SKM wanted (a recount of all now eligible people that emphasises the overwhelming primacy of above-the-line voting in the Senate.) But that course was foreclosed long ago in cases like Wood, and led to silliness like Nash 2 instead. That being said, the Court itself has flagged the possibility that the special count might ‘distort’ voters’ intentions too much. It’s hard to see why that argument would succeed where SKM’s failed, but perhaps the Court wants to signal that there are democratic limits to what it’s willing to order in disputed returns cases.

    • Yes, absolutely agree- the reference to Australian political norms was just why it was obvious the novel SKM argument was never going to fly to overcome the clear black letter law reading of the situation. They wanted the High Court to take a purposive approach to implement a purpose which isn’t there and has never been there. Their argument was “it’s the vibe” in a situation where it wasn’t even the vibe…

  3. So, Jeremy, does that mean you’ve effectively cancelled the remark above that “The matter may not be over, however..” because of the argument that Storer is no longer a member of NXT? It pretty clearly *is* over because poor old David Jackson devoted a good part of his monologue to pushing it and no 3 in the Court’s orders was “Timothy Storer should not be excluded from the special count.”

    As to reasons, the Court can justify such an outcome without recourse to political practice or democratic theory by citing sub-s 272(2), which makes it clear that an ATL vote is to be treated as if it was a 1,2,3,4,5 vote for the _candidates_ in that column. We may know that they are _in_ the same column because they were endorsed by a party, but under the Act, and indeed the Constitution, we are voting for candidates. This is reinforced by the commonsense argument that Arky has suggested – we know that once we have voted for the candidates of a party, they may well quit the party (and in the case of “personality” parties do so more often than not) but they remain duly-elected members, but it’s the words of s 272 that will appear in the Court’s reasons.

    *Whose law is it that’s been quoted on the Bludger, that a party named after a personality can never hold a caucus together? Seems to be true.

    • As near as I can understand it (bearing in mind that the Court’s correspondence is not public and the Court didn’t say ANYTHING during argument in the full court), the ‘distortion’ argument only arises after the special count is done (rather than Monday’s hearing, which was about how the special count is to be done.) I can’t see how the arguments are different, but the High Court seems (or at least seemed) to think they were different. We’ll find out (maybe) on Friday. And, yes, the electoral act converts above the line votes into below ones, but it’s not clear to me (at least) that the same rules apply to post-disqualification recounts. Those are done according to an unpublished schedule that sets out various rules (I think about deaths and casual vacancies and the like), but those rules are judge-made, not statute-made. I find the whole thing very ad hoc myself. But, to reiterate, most of this is not published, so it’s very tricky to analyse.

  4. Oh, and you say “the Court itself has flagged the argument” about distortion of the voters’ intention. Indeed in the previous S K-Moore hearing the argument was adverted to in a letter from the Senior Registrar, but I should imagine that she only raised it because one of the parties had done so. Registrars, even senior ones, don’t usually raise issues off their own bat!

    • My impression, which again might be wrong, was that the argument was raised by the Court, and then put to the parties by the Registrar. I can’t fathom why the Registrar would be acting as a go-between between the parties to the reference. All would be much clearer if these letters were on the public record, but I’ve tried in the past to read them (e.g. with Dickson, 2010) and was told that they are part of the private ‘correspondence’ file. That makes no sense to me.

  5. Yes, your speculation about who raised the issue could well be correct. (Judges sometimes raise issues that the parties have overlooked, and sometimes don’t.) Though I would have thought there would have been mutterings from the Xenocamp, if not references in pleadings, by then anyway. Without doing a search, I have a feeling that Xeno and SKM had raised the issue in the press by then.

    But I still think the issue has now been settled by order no 3 quoted above. I confidently predict that on Friday the AEC will announce that Storer is among the 12 successful candidates and Nettle J will declare that he is duly elected without referring any further questions. Then when the Court gives its reasons they will say that a recount simply looks at the preferences as recorded on election day and ATL votes are taken to be votes down the BTL column, so the fact that Storer ceased to be a Xenofellow sometime after the poll is just irrelevant. Betcha!

  6. Btw, although I’ve picked an argument with you over one issue, thanks very much for doing this annotation, effectively, of s 44. I’ve been thinking so many cases had accumulated that I’d better make a list before I started forgetting some of them. You’ve done it for me – and for everyone else. Good on ya.

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