Last Friday, Kiefel CJ kicked off the High Court’s public work for 2018 with a directions hearing on the latest two referrals of MPs who were or are possible dual citizens. As occurred previously with Senator Malcolm Roberts, it is clear that both of these references will require first resolving factual (in addition to legal) disputes, including disputes about the meaning of overseas (UK) law. However, when the Commonwealth Solicitor-General told the Chief Justice that both London experts in Senator Katy Gallagher’s referral were available to appear by video link on Monday 29 January, she responded:
Mr Solicitor, I do not suppose the experts have been asked to consider the availability of dates further down the track, so to speak, in advance? I say that for this reason. The Court is of course aware of the need to determine these matters as soon as possible but there is a limit to its ability and its preparedness to do so in relation to these references when they keep coming in and to treat every matter, every reference, as one of extreme urgency.
Ruling out scheduling a hearing ahead of the Court’s coming February sitting weeks, she suggested a date in the second of those weeks, noting that the Court will then be dealing with smaller bench matters (presumably a bundle of appeals from Nauru.) However, it is not clear that her proposed timing will work, as one London expert is committed to other litigation in those weeks (and appearing in the High Court will presumably involve several hours by video-link at unusual London hours.) As Kiefel CJ noted, any later factual hearing would be ‘uncomfortably close to the March sittings’, when she hoped that a full Court hearing could be held. In the same hearing, she readily agreed to a mutual request to slightly delay progress of MP David Feeney’s case to allow him to seek more evidence that he renounced UK citizenship.
The Chief Justice’s approach to resolving factual matters seems to signal a change in the Court’s previous handling of MP eligibility matters. Late in 2016, the Court twice refused requests from then Senator Rod Culleton for adjournments to allow him more time to gather evidence in support of his eligibility, with French CJ stating ‘Not every matter of this kind can be dealt with expeditiously but where it can be so dealt with it should be, in the public interest.’ In the concurrent eligibility matter relating to then Senator Bob Day, Gordon J held two days of hearings on Monday 23rd and Tuesday 24th January 2017 to hear and debate financial and contractual testimony, making several dozen factual findings in a 250 paragraph judgment that Friday. She did all that even though the Court heard four seven–judge matters in the following week-and-a-half. When the ‘Citizenship Seven’ went before the Court, Kiefel CJ observed:
When we talk about urgency, of course the Court accepts that this matter is extremely important and it has a high level of urgency but there is urgency and urgency, even at that level.
She said that she was willing to schedule the full court hearing urgently in a non-sitting week in a few weeks, but ultimately acceded to then Senator Roberts’s request for a longer timeline.
It seems unlikely that Kiefel CJ’s current approach is due entirely to practical limits on the Court’s resources. As Gordon J’s example in relation to the Day case shows, the High Court’s seven justices are entirely capable of dealing with multiple cases in close proximity (just as the lawyers and experts routinely do, and were willing to do in this case), especially after the Court’s lengthy summer recess. Rather, her stance seems to flow from a change in the Court’s willingness to accomodate cases, especially with the likelihood of a significant number of further cases this year. In my view, any such shift in the Court’s attitude is unfortunate. The issue is not just the obvious urgency of any question about an MPs’ eligibility (something I believe the Court pursued to a fault in Senator Culleton’s case.) Rather, it is the context that the general issue of MPs’ eligibility has become a larger political question, with the prospect of further referrals and possible by-elections now enveloping both parties and their leaders, as well as emerging as a likely issue in a coming election. In such a context, any change in the Court’s case management approach needs to be carefully and convincingly justified, lest it be read as itself a political act (e.g. an attempt to discourage further referrals), a political stance (e.g. an implied criticism of Parliament’s response to the Court’s earlier s44 decisions) or even political bias (as the new stance happens to coincide with the first referrals of ALP MPs to the Court.)