News: Court may no longer expedite MP eligibility referrals

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 sevenjudge 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.)

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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.

4 thoughts on “News: Court may no longer expedite MP eligibility referrals

  1. A perceptive analysis. If the HC is bored of core business one can only fear where it’s activist feet will tread next!

  2. In his final paragraph, Jeremy muses that the Chief Justice, through her recent comments on the scheduling of hearings, could be read as having sent a political signal to Parliament over referrals of persons to the Court in relation to possible s 44 disqualification: she could be seen as engaging in ” …a political act (e.g. an attempt to discourage further referrals)”.

    If that were the right reading, it would beg the question as to how Kiefel CJ might be thinking possible disqualifications should be addressed. Three alternatives to referrals come to mind. 1. the relevant house of parliament could make the determination itself; 2. the house could turn a blind eye to s 44; or 3. the possibly disability-burdened person could resign.

    It’s unlikely the CJ, committed to the rule of law, would be encouraging the second alternative. Alternative 3 is also doubtful. As the earlier Waters and Ludlam referrals show, resignation alone does not mean that a subsequent referral will not occur. If the disincentive reading is correct, alternative 1 is probably what the CJ has in mind.

    Whatever the CJ’s thinking, some politicians, at least one parliamentary officer and the media seem to think resignation is a sufficient resolution of matters rather than having questions determined by the relevant house or the Court. A widely held view (eg Fairfax writers, Bill Shorten) is that David Feeney’s resignation will absolve the Court from having to determine his eligibility. Too, the Speaker of the House, Tony Smith, is apparently at least contemplating exercising power under s 33 and issuing a writ for a Batman casual vacancy by-election.

    I have a few associated questions for Jeremy and/or other experts contributing to this blog.

    1. Under the Constitution and Commonwealth Electoral Act, does the relevant house of parliament have the power to end the Court’s involvement in the determination of questions in a referral by rescinding the referral?

    2. Does any other body or person have the power by their actions or pronouncements to halt the Court’s involvement?

    3. If, before an effective recission motion is passed, the Speaker of the House were to issue a Batman by-election writ based on a view that a vacancy has happened because of Feeney’s resignation when the question of whether Feeney was ever validly elected has been referred to the Court by the House along with the live question of how, if he was not, the unfilled-from-2016 Batman seat should now be filled (questions transmitted by the Speaker himself), would the Speaker potentially be in contempt?

    • These are algpod questions but the technical answers are simple: no, no and no. Only the Court can stop a referral (which it will now because the MP has resigned and no party seeks anything other than a by-election) and the President has absolute immunity under parliamentary privilege.

      • Thanks for those succinct answers.

        One would hope the Court does not consider itself bound to stop the referral just because the deemed parties are in agreement on all the referred questions but only because what all the parties want is fully consistent with the law.

        There are by-elections and by-elections. One held under the CEA as a supplementary election following the death of a candidate is to be based on the Electoral Roll applying at the general election. Given the Court has reasoned the problem of ineligibility of the successful candidate can reasonably be treated similarly to the problem arising from a candidate’s death, it might be argued that the June 2016 Electoral Roll should apply in any by-election. Of course the time delay is much greater in the Batman case than in a death case and the Court very possibly would order an up to date Roll be used, essentially making the by-election the equivalent of an ordinary by-election.

        I am surprised that the almost victorious runner up, Greens candidate Alex Bhathal, apparently is not arguing that a recount of 2016 votes (with votes for Feeney treated as nullities) would produce a result consistent with Batman voters’ intentions at that time, more consistent than will be the results of a 2018 by-election with new candidates. The reason, presumably, is that she believes it futile to ask the Court to depart from its earlier practice of ordering by-elections when successful candidate ineligibility makes voters’ intentions unclear, even when the runner up almost won and amost certainly would have won if voters had been informed that the Labor Party had failed to nominate an eligible candidate. She is probably right.

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