News: Delay anticipated in High Court challenge to Senators

Eagle eyed readers of the UK Supreme Court’s twitter page will notice a couple of contrasts to the High Court of Australia:


First, the United Kingdom’s apex court is on Twitter; Australia’s High Court is yet to enter the modern world of social media. Second, the Court’s twitter stream actually replies to public queries, including confirming @aforlonehope’s query that the coming 11-judge Brexit hearing will make UK procedural history. Third, up until now, the UK’s apex court has never held a hearing that involves all of the courts’ judges.

While most major hearings in Australia’s High Court involve five of the Court’s seven judges, the Court typically sits ‘en banc’ – i.e. with all of its seven judges – for all constitutional cases and occasionally for other significant cases. This approach carries the advantage that there is no risk that important issues are resolved by the happenstance of which particular judges are part of a particular bench (although, of course, it may still be resolved by the happenstance of which judges are part of the particular court at the time of the case is heard.) Indeed, the United States Supreme Court always sits ‘en banc’. But, as the US example presently shows, there is a rub: sometimes, an apex court is short of its usual numbers, creating a risk that important matters will be resolved in a less satisfactory way, through various tie-breaker rules. In Australia, this is a recurrent problem, because the High Court is unable to sit a full bench of seven judges in the three or so months before a judge retires and a new one is appointed. That is presently the situation, with French CJ seemingly having heard his last case on 5th October (a seven-judge hearing involving indigenous land rights) but not scheduled to be replaced until 29th January.

According to George Williams, it is this situation that explains why the current challenges to the election of Senators Bob Day and Rob Culleton won’t be heard until February:

This latest controversy will be resolved by the judges of the High Court sitting as the Court of Disputed Returns. The Turnbull government will want a quick answer, as the absence of two senators may cause the defeat of its legislation. The court has granted requests for extradition [sic] in the past. It has recognised the need for stability and certainty when it comes to the composition of Parliament, and so matters have been resolved in weeks rather than months.

On this occasion, it is less clear that the government will get a speedy result. High Court Chief Justice Robert French will retire on January 29, 2017, a few weeks ahead of his 70th birthday. If the challenges cannot be decided by this time, the chief justice will not be able to sit, leaving only six judges to hear the case.

Indeed, the Court has seemingly delayed other constitutional and significant cases to its February hearings, presumably for this reason. In my view, the Court seeking to avoid tied rulings on important issues is a good thing. However, the Court’s solution carries the downside that a fairly urgent matter will have to sit on hold for nearly three months (and the next Court will face an extremely busy month in February.) As I’ve argued previously, Canada has better solutions (including allowing judges to participate in post-retirements rulings on pre-retirement matters, and re-listing split matters), although these would face legal and financial barriers in Australia. Those barriers need to be weighed against inconveniences such as the one presently faced by Australia’s Parliament.

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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.

7 thoughts on “News: Delay anticipated in High Court challenge to Senators

  1. The Court of Disputed Returns can — and has in the past — been constituted by a single justice of the Court (see, eg Re Webster in 1975; Ludlam v Johnston in 2014). That could occur here well before the Court’s summer break. Whether it will occur is a matter for the Court.

    • Indeed (and, if it is so constituted – no-one knows how that is determined – then the single judge’s decision is final and cannot be appealed.) What makes that unlikely this time is that the challenges this time involves some disputes about the meaning of s44, rather than just fact-finding about ballots and the like (as in Ludlam v Johnston), so there’s reason to go to the full court. (Webster in 1975 is a contrary, but very old and not-much-loved precedent.) If the delay is seen as a reason to go for a single judge, then that still points to the need to a future solution to the HCA’s six-judge problem.

  2. There’s no parliamentary sitting days after the end of November until 7 February 2017, which probably reduced the urgency. If the Government was facing weeks of Senate votes compromised by the Day/Culleton situations, one assumes they would have pushed harder and had a better case for the matter to be expedited, heard and determined prior to French CJ’s retirement. Still, the delay is far from ideal.

  3. The case regarding Senator Culleton has been scheduled in the December sitting. I can only assume that this has been done on the basis that French CJ will sit on the case because it seems inconceivable that there would be a 6 member court for a decision of such consequence.

    • We’ll have to wait and see on that. French CJ has not sat on any full court cases since early October, so this would be quite unusual. In any case, Senator Culleton said at Monday’s hearing that he would appeal French CJ’s decision to schedule the case in early December to the ‘full court’, which presumably means the other six judges. Assuming (a) he follows through; and (b) such an appeal can actually be brought; we’ll have a six judge decision on this (quite difficult) question of timing at some point.

      • If the Court does indeed convene as a panel of 6 and were equally divided then my understanding would be that the decision of Kiefel J would prevail in accordance with Judiciary Act, s. 23(2)(b).

        I was surprised with the haste by which French CJ sought to list the matter, especially in circumstances where Senator Culleton (all eccentricities aside) is presently self-represented and in circumstances where former Senator Day’s matter was not listed with similar haste. I realise that former Senator Day’s matter involved significant factual issues but, nonetheless, I thought it was overly hasty in the circumstances.

        • Yes, I completely agree. Indeed, the delay on Senator Day surely means that the only good reason to expedite Culleton – to settle the membership of the Senate – isn’t applicable.

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