News: The High Court’s summer homework

A month or so after the last federal election, the judges of the High Court decided that the High Court’s ‘summer recess begins on Saturday 16 December 2017.’ A year later, the current judges settled on ‘Monday 5 February 2018’ as the Court’s first sitting day for next year. The dates in between are the summer holiday for the High Court (and its bar), a tradition not limited to Australia’s apex court. US Chief Justice John Roberts, in his previous role as a counsel in the Reagan Government, criticised the Court he would later lead for sitting too few weeks to handle its workload, writing ”it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off’ and semi-joking: ‘we know that the Constitution is safe for the summer’.

It turns out that the Australian Constitution is not so safe for this coming summer. Having declared Fiona Nash’s Senate seat vacant in October, and then declaring her replacement in the NSW Senate recount, Hollie Hughes, ineligible in November, this month brings a new dispute about whether the third in line, Jim Molan, is to be appointed to a three-year or six-year term. On Monday, Gageler J set a hearing date of 22 December for him to determine whether that issue can be resolved by a judge sitting alone, or will need to go before the full court. If the latter occurs, then it will join a queue of pending full court hearings on s 44 of the Constitution. Last week, Nettle J foreshadowed full court hearings in the last week of January (a week ahead of 2018’s first scheduled sitting) to determine questions concerning the eligibility of Jacquie Lambie’s replacement-elect, Devonport Mayor Steve Martin, and how to choose the replacement of the Xenophon Team’s Skye-Kakoschke-Moore. The High Court website is currently advertising hearings on 19 January to settle parties to s44 disputes concerning David Feeney and Katy Gallagher. The latter dispute is likely to be hotly contested, as it may (or may not) resolve the fates of a further four (or more) MPs.

As everyone knows, these pending matters are the tip of the iceberg. Last week, the ALP and cross-benchers failed to send a slate of seven MPs to the Court of Disputed Returns, but it is inevitable that most of those, and perhaps many more, will be referred next February or March. As well, the High Court this week heard procedural arguments on whether the eligibility of MPs can be challenged without a parliamentary reference. A positive answer will mean require that a full court determine, not only the eligibility of David Gillespie (whose company owned a shopping centre with an Australia Post sub-lease), but likely further challenges to sitting MPs brought without a parliamentary referral. In a Senate Committee hearing last week, Senator David Leyonhjelm semi-jokingly suggested:

We seem to have got into this practice of referring everything to the High Court and saying ‘Here, you decide,’ and, in some respects, I think that’s only justified, since they are the ones that caused this problem in the first place. I’m inclined to refer 150 members and 76 senators and say, ‘Here, now you sort out this mess you’ve created.’

While it’s unlikely that the Parliament would do such a thing, something close to this scenario might arise reasonably soon.¬†Looking (somewhat) further ahead, the forty days after the next federal election will be a period when any disappointed candidates can challenge any seemingly elected candidates (including, but not limited to, returned incumbents whose citizenship registers have revealed doubts about their eligibility.) While the date of the next election is not yet known (and may be affected by the High Court’s own rulings), it is clear that the justices would be wise to not plan any holidays for the months after polling day.

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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.

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