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:
- 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.
- 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.