After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:
In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)
These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)
The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Rather, they are all referrals made under the following provision of federal election law:
Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.
Four of the matters involve current senators, one involves a current representative (Barnaby Joyce) and two involve vacancies (Greens Senators Ludlam and Joyce, who have already resigned under s19 of the Constitution.)Before the High Court can determine the cases, three things need to be settled: the parties, the lawyers and the evidence.
Neither house of parliament is a party to the referrals. Rather, the parties to are determined using the following provision:
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.
After the High Court advertised the seven proceedings on its website, Kiefel CJ held that the parties to the proceedings included each of the respective MPs or former MPs, as well as the Commonwealth Attorney-General. She also rejected a number of other requests to participate or make submissions from others, including barrister John Cameron (who outed Scott Ludlam as a New Zealander) and Joe Bloggs (who wanted to argue that Australia is a ‘foreign power’ for the purposes of s44(i), an interesting, if unlikely, claim that would presumably have vacated the entire parliament.) The only outside party who made the cut was former MP Tony Windsor, who was defeated by Barnaby Joyce at the last election.
As for the lawyers, the Court’s concern was that all claims put by the parties had a ‘contradictor’ (someone arguing the other side.) On 15th September, Kiefel CJ sorted through the parties’ arguments and decided that in the case of:
- Australian-born New Zealander Joyce, the A-G’s argument in favour of eligibility would be contradicted by Windor’s argument against eligibility
- Australian-born Italian Canavan and Brits Nash and Xenophon, the A-G’s similar argument in favour of eligibility would also be sufficiently contradicted by Windsor’s argument against Joyce’s eligibility
- Indian-born Roberts, Roberts would be arguing in favour of his eligibility and the A-G would be arguing against
- Canadian-born (but speedily departing) Waters, the A-G would be arguing in favour of her eligibility and Waters would be arguing against (!)
- New Zealand-born Ludlam, both the A-G and Ludlam would be arguing in favour of ineligibility
So, there will be contradictors in all except Ludlam’s case (and Kiefel CJ was seemingly content to have no-one argue in support of him.) If the High Court accepts the Attorney-Genera’s argument – basically that Australian-born folks should be less readily disqualified under s44(i) – then just two of the seven MPs (Roberts and Ludlam) will be declared ineligible.
Finally, there’s the evidence. The Court (as is its practice) opted to gather evidence in advance of sorting out the applicable legal tests. It is clear that there will be affidavits from each of the MPs, other lay witnesses to events surrounding their citizenship and nominations and experts on foreign law. Of these, Kiefel CJ thought it wise to arrange for the cross-examination of Roberts’s witnesses about his attempts to renounce his British citizenship, naming Stephen Lloyd SC to be the ‘factual’ contradictor (after the Attorney-General demurred.) Accordingly, Roberts himself, as well as two family members and an expert, testified before Keane J on Thursday, with a transcript available here. Justice Keane’s judgment was released on Friday afternoon, ruling that Roberts:
- was indeed a British citizen when he was nominated (due to the lack of a declaration of truth and the required fee in his attempted renunciation email in June last year)
- knew he was not always an Australian citizen and that his foreign citizenship was a ‘reasonable and substantial possibility’, and
- had (but didn’t utilise) plenty of methods to ascertain and renounce his British citizenship prior to his nomination.
While these findings certainly look bad for Roberts, any ruling on whether he was ineligible to be elected will have to wait until the October hearing of the full High Court and the orders the Court will likely make soon after.